EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of January 2, 1966, by and between Xxxxxxxx'x, Inc., a Tennessee
corporation ("Xxxxxxxx'x") and Xxxxxx Xxxxx Xxxxx & Co., an Illinois corporation
("CPS").
RECITALS
WHEREAS, on October 22, 1995, Xxxxxxxx'x, Baltic Merger Corporation, a
Delaware corporation and wholly-owned subsidiary of Xxxxxxxx'x, and Younkers,
Inc., a Delaware corporation ("Younkers"), entered into an Agreement and Plan of
Merger (the "Merger Agreement");
WHEREAS, the Merger Agreement provides for the merger of Baltic with and
into Younkers (the "Merger"), with each share of the Younkers common stock, par
value $0.01 per share, being converted into 0.98 shares of the Xxxxxxxx'x common
stock, par value $0.10 per share ("Xxxxxxxx'x Common Stock");
WHEREAS, CPS is the record and beneficial owner of 1,047,500 shares of
Younkers Common Stock and, accordingly, will receive shares of Xxxxxxxx'x Common
Stock (the "Shares") in connection with the Merger;
WHEREAS, subject to the terms, provisions and conditions contained in this
Agreement, Xxxxxxxx'x agrees to register the Shares for offer and sale pursuant
to the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the good faith performance by Xxxxxxxx'x of its obligations
hereunder is an inducement and a condition to the performance by CPS of its
obligations under that certain Transaction Agreement dated as of an even date
herewith by and among Xxxxxxxx'x, Younkers and CPS.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, Xxxxxxxx'x and CPS agree as follows:
Section 1. Definitions.
As used in this Agreement, the following defined terms shall have the
following meanings:
(a) Agreement. See the definition set forth in the Preamble.
(b) CPS. See the definition set forth in the Preamble.
(c) Demand Registration. See the definition set forth in Section
2(a).
(d) Exchange Act. See the definition set forth in Section 4(m).
(e) Holder. CPS and the subsequent registered holder of Registrable
Securities, if any, becoming the Holder upon assignment and delegation in
accordance with Section 9(b).
(f) Indemnified Party. See the definitions set forth in Sections 5(a)
and 5(b).
(g) Indemnifying Party. See the definition set forth in Section 5(c).
(h) Limitation Period. See the definition set forth in Section 8.
(i) Merger. See the definition set forth in the Recitals.
(j) Merger Agreement. See the definition set forth in the Recitals.
(k) NASDAQ National Market System. The National Association of
Securities Dealers Automated Quotation System National Market System.
(l) Person. An individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political
subdivision thereof.
(m) Piggyback Notice. See the definition set forth in Section 3(a).
(n) Piggyback Registration. See the definition set forth in Section
3(a).
(o) Xxxxxxxx'x. See the definition set forth in the Preamble.
(p) Xxxxxxxx'x Common Stock. See the definition set forth in the
Recitals.
(q) Prospectus. The prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.
(r) Registrable Securities. Shares of Xxxxxxxx'x Common Stock to be
obtained by CPS in connection with the Merger.
(s) Registration Expenses. See the definition set forth in Section 6.
(t) Registration Period. See the definition set forth in Section
2(b).
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(u) Registration Statement. Any registration statement of Xxxxxxxx'x
which 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 in such Registration
Statement.
(v) SEC. The Securities and Exchange Commission.
(w) Shares. See the definition set forth in the Recitals.
(x) Xxxxx Xxxxxx. Xxxxx Xxxxxx Inc.
(y) Termination Date. The earlier of (i) December 31, 1997, or (ii)
the date upon which CPS's ownership of Registrable Securities first
constitutes less than 2.5% of the issued and outstanding shares of
Xxxxxxxx'x Common Stock.
(z) Underlying Registration. See the definition set forth in Section
3(a).
(aa) Underwriter. See the definition set forth in Section 5(a).
(bb) Younkers. See the definition set forth in the Recitals.
(cc) 1933 Act. See the definition set forth in the Recitals.
Section 2. Demand Registration.
(a) Obligation to File. Prior to the Termination Date and upon written
notice to Xxxxxxxx'x, the Holder may request that Xxxxxxxx'x effect the
registration under the 1933 Act of the Registrable Securities (a "Demand
Registration"); provided, however, that the Holder shall not give notice
requesting a Demand Registration within 120 days after the termination of
an offering in which the Holder could have exercised its "piggyback
registration rights" under Section 3 of this Agreement with respect to all
of the Registrable Securities. Xxxxxxxx'x shall be obligated to effect and
maintain only one Demand Registration pursuant to this Section 2. Upon
receipt of notice under this Section 2(a), Xxxxxxxx'x shall as promptly as
practicable file a Registration Statement for the offering of all of the
Registrable Securities on a continuous or delayed basis and shall use its
reasonable best efforts to have the Registration Statement declared
effective as soon as practicable after such filing. Xxxxxxxx'x may postpone
the filing of a Registration Statement under this Section 2(a) for a
reasonable period (not to exceed sixty (60) days) if in its judgment such
filing would require the disclosure of material information that Xxxxxxxx'x
has a bona fide business purpose for preserving as confidential.
(b) Obligation to Maintain. Xxxxxxxx'x will use its reasonable best
efforts
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to keep the Demand Registration continuously effective for the period (the
"Registration Period") beginning on the date the Demand Registration
Statement is declared effective and ending on the later of (i) six months
following the date on which the Demand Registration Statement is declared
effective plus the total number of days of suspension of the Holder's right
to sell under subparagraphs (a) and (d) of this section, Section 4, and
Section 8(a); and (ii) the Termination Date plus the total number of days
of suspension of the Holder's right to sell under subparagraphs (a) and (d)
of this section, Section 4, and Section 8(a). During the Registration
Period, Xxxxxxxx'x shall supplement or make amendments to the Demand
Registration Statement as required by the 1933 Act or by the rules and
regulations promulgated thereunder and shall use its reasonable best
efforts to have any such supplement or amendment declared effective as soon
as practicable after its filing.
(c) Selection of Underwriters. If any of the Registrable Securities
covered by the Demand Registration are to be sold in an underwritten
offering, Xxxxxxxx'x will engage Xxxxx Xxxxxx or Xxxxxxx, Xxxxx & Co., as
the Holder may select, or a similar firm mutually acceptable to Xxxxxxxx'x
and Holder, to act as the lead underwriter of the offering on terms
customary for this type of offering, provided, however, that, in the event
that any firm other than Xxxxx Xxxxxx is selected as lead underwriter, such
selection shall be subject to the execution by the selected firm of a
confidentiality agreement of customary form reasonably acceptable to
Xxxxxxxx'x.
(d) Suspension of Sales. Xxxxxxxx'x shall have the right to require
the Holder not to sell any Registrable Securities under the Demand
Registration during one or more periods aggregating not more than 120 days
in each twelve month period during the Demand Registration if (i)
Xxxxxxxx'x would, in accordance with advice of its counsel, be required to
disclose in the Prospectus information not otherwise then required by law
to be publicly disclosed; and (ii) in the sole judgment of Xxxxxxxx'x Board
of Directors, there is a reasonable likelihood that such disclosure, or any
other action to be taken in connection with the Prospectus, would
materially and adversely affect any existing or prospective material
business situation, transaction or negotiation, or otherwise materially and
adversely affect Xxxxxxxx'x.
(e) Notice. In the event that (i) Xxxxxxxx'x suspends sales of
Registrable Securities pursuant to Section 2(d) of this Agreement, or (ii)
the Registration Statement or any related Prospectus ceases to be accurate
and requires revision so that such Registration Statement or Prospectus
will not contain any untrue statement of a material fact nor omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, Xxxxxxxx'x shall give the Holder prompt
notice of such event.
(f) Inclusion of Other Securities. Xxxxxxxx'x , and any other holder
of Xxxxxxxx'x securities who has registration rights, may include its
securities in any Demand Registration effected pursuant to this Section 2;
provided, however, that if
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the offering is an underwritten offering and the lead underwriter advises
the Holder in writing that the total amount or kind of securities which
Xxxxxxxx'x or any such holder intends to include in such proposed offering
is sufficiently large to materially adversely affect the success of the
proposed offering requested by the Holder, then the amount or kind of
securities to be offered for the account of Xxxxxxxx'x or any such holder
shall be reduced to the extent necessary to reduce the total amount or kind
of securities to be included in such proposed offering to the amount and
kind recommended by such lead underwriter.
Section 3. Piggyback Registration.
(a) Right to Piggyback. Except during the Registration Period and
subject to this Section 3, in the event Xxxxxxxx'x proposes to register any
of its securities under the 1933 Act (an "Underlying Registration") and the
registration form to be used in connection with the Underlying Registration
may be used for the registration of the Registrable Securities, Xxxxxxxx'x
shall give the Holder prompt notice of its intention to effect the
registration (the "Piggyback Notice"). Upon written notice to Xxxxxxxx'x
within thirty (30) days after its receipt of the Piggyback Notice, the
Holder may request that Xxxxxxxx'x include the Registrable Securities in
the Underlying Registration (the "Piggyback Registration"). Xxxxxxxx'x
shall be obligated to cause a Piggyback Registration Statement to become
effective pursuant to this Section 3 only once, unless any shares of
Registrable Securities are excluded from the offering by the lead
underwriter in accordance with paragraph (b) of this Section, in which
event CPS will be entitled to request that Xxxxxxxx'x include the excluded
Registrable Securities in an Underlying Offering in accordance with this
Section until all of the Registrable Securities have been included in a
Piggyback Registration.
(b) Underwritten Registrations. If the Underlying Registration is an
underwritten registration and the lead underwriter advises Xxxxxxxx'x in
writing that, in their opinion, inclusion of the Registrable Securities in
the offering would materially adversely affect the success of the offering,
the lead underwriter for the offering may, in its sole discretion, exclude
some or all of the Registrable Securities from the offering before the
securities offered by Xxxxxxxx'x or any other holder of demand or piggyback
rights included therein that have been granted in an agreement executed
prior to the date of this Agreement are so excluded.
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(c) Merger, Consolidation, etc. Notwithstanding anything in this
Section 3 to the contrary, the Holder shall have no right to a Piggyback
Registration in connection with any distribution or registration of equity
securities by Xxxxxxxx'x which is a result of a merger, consolidation,
acquisition, exchange offer, recapitalization, other reorganization,
dividend reinvestment plan, stock option plan or other employee benefit
plan, or any similar transaction having the same effect.
(d) Right to Terminate Underlying Registration. Xxxxxxxx'x shall have
the right in good faith to terminate or withdraw the Underlying
Registration at any time prior to its effectiveness.
Section 4. Registration Procedures. In connection with Xxxxxxxx'x
obligations with respect to the Demand Registration and a Piggyback Registration
pursuant to this Agreement, Xxxxxxxx'x shall use its reasonable best efforts to
effect or cause to be effected the registration of the Registrable Securities
under the 1933 Act to permit the sale of such Registrable Securities by the
Holder in accordance with the intended method or methods of distribution
thereof, and pursuant thereto, Xxxxxxxx'x shall, as soon as practicable:
(a) prepare and file with the SEC, in accordance with the time periods
specified herein, the requisite Registration Statement with respect to the
Demand Registration or the Piggyback Registration, as the case may be, on
any appropriate form under the 1933 Act, which form shall be available for
the sale of the Registrable Securities in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements required by the SEC to be filed therewith, and use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with this Agreement;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period; cause the
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and to
comply with the provisions of the 1933 Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the Holder set forth in such Registration Statement or
supplement to the Prospectus;
(c) furnish to the Holder and to each underwriter, if any, a
reasonable number of copies of a Prospectus and preliminary Prospectus for
delivery in conformity with the requirements of the 1933 Act, and such
other documents as the Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities, but only while Xxxxxxxx'x shall be required under the
provisions hereof to cause the Registration Statement to remain
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effective;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by the Registration Statement under all
other applicable state securities or "blue sky" laws of such jurisdictions
as the Holder shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the Holder to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by the Holder; provided, however, that
Xxxxxxxx'x shall not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 4(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) notify the Holder promptly, and if requested by the Holder,
confirm such advice in writing (i) when the Registration Statement has
become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to the Registration
Statement and Prospectus or for additional information, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of any Registration Statement and the closing of any sale of
securities to which it relates, the representations and warranties of
Xxxxxxxx'x contained in the underwriting agreement, if any, relating to the
offering cease to be true and correct of if Xxxxxxxx'x receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, and (v) of the happening of any event
during the period the Registration Statement is effective which in the
judgment of Xxxxxxxx'x makes any statement made in the Registration
Statement or the Prospectus untrue in any material respect or which
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the
qualification of any Registrable Securities for sale in any jurisdiction,
at the earliest possible moment;
(g) upon request, furnish to the lead underwriter of an underwritten
offering, if any, of Registrable Securities, without charge, at least one
signed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits;
(h) cooperate with the Holder and the lead underwriter of an
underwritten
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offering of Registrable Securities, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as such lead underwriter may reasonably request at least three
business days prior to any sale of Registrable Securities to the
underwriters;
(i) upon the occurrence of any event contemplated by Section 4(e)(iv)
or Section 4(e)(v) hereof, use its reasonable best efforts to prepare a
supplement or post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other document so that, as thereafter delivered to the purchasers
of the Registrable Securities, the 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;
(j) enter into an underwriting agreement, if the Registrable
Securities are to be sold in an underwritten offering, with each
underwriter, which agreement is customary in form, substance and scope,
use its reasonable best efforts to obtain any opinions of counsel or
accountants' "cold comfort" letters referred to therein, and take all such
other reasonable actions in connection therewith in order to expedite or
facilitate the disposition of Registrable Securities in an underwritten
offering or, if the Registrable Securities are to be sold pursuant to a
"best efforts" underwriting, to enter into an agreement therefore with each
underwriter, which agreement is customary in form, substance and scope;
(k) make available for inspection by any underwriter participating in
any disposition pursuant to such Registration Statement and any attorney or
accountant retained by any such underwriter, all financial and other
records, pertinent corporate documents and properties of Xxxxxxxx'x, and
cause Xxxxxxxx'x officers, directors and employees to supply all
information reasonably requested by such underwriter, and any attorney or
accountant in connection with any such Registration Statement; provided,
however, that such underwriter, and such other attorney or accountant agree
in writing to keep confidential any records, information or documents that
are designated by Xxxxxxxx'x as confidential unless disclosure of such
records, information or documents is required by court or administrative
order after the exhaustion of appeals therefrom;
(l) deliver to the Holder and to each underwriter of any underwritten
offering of Registrable Securities, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as the Holder or such underwriters may reasonably
request;
(m) promptly prior to the filing of the Registration Statement, any
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Prospectus or any other document (other than periodic reports on Form 10-K,
Form 10-Q or Form 8-K, or any successor forms to be filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) which is
to be incorporated by reference into the Registration Statement or the
Prospectus after initial filing of the Registration Statement, provide
copies of such document to the Holder and the lead underwriter of an
underwritten offering of Registrable Securities, if any, and make
Xxxxxxxx'x representatives available for discussion of such document;
(n) use its reasonable best efforts to cause all Registrable
Securities covered by the Registration Statement to be listed on the NASDAQ
National Market System, or any securities exchange on which similar
securities issued by Xxxxxxxx'x are then listed;
(o) comply with all applicable rules of the SEC relating to
registration statements and the distribution of securities and otherwise
necessary in order to perform the obligations of Xxxxxxxx'x under this
Agreement; and
(p) take all other reasonable steps necessary and appropriate to
effect all registrations in the manner contemplated by this Agreement.
Xxxxxxxx'x may require the Holder to use its reasonable best efforts to
furnish to Xxxxxxxx'x such information regarding the distribution of such
Registrable Securities as Xxxxxxxx'x may from time to time reasonably request in
writing.
The Holder agrees that, upon receipt of any notice from Xxxxxxxx'x of the
happening of any event of the kind described in Section 4(e)(iv) or Section
4(e)(v), the Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering the Registrable
Securities until the Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(e) hereof, and, if so directed by
Xxxxxxxx'x, the Holder will deliver to Xxxxxxxx'x (at Xxxxxxxx'x expense) all
copies in its possession, other than permanent file copies then in the Holder's
possession, of the Prospectus covering the Registrable Securities current at the
time of receipt of such notice. In the event Xxxxxxxx'x shall give any notice,
Xxxxxxxx'x shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 4(e) hereof to and including the date when the Holder shall
have received copies of the supplemented or amended Prospectus contemplated by
Section 4(e) hereof.
Section 5. Indemnification and Contribution.
(a) Indemnification by Xxxxxxxx'x. In the event Xxxxxxxx'x registers
Registrable Securities pursuant to Section 2 or Section 3 hereof,
Xxxxxxxx'x agrees to indemnify and hold harmless each Person who
participates as a underwriter
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("Underwriter"), the Holder and each Person, if any, who controls the
Holder or an Underwriter within the meaning of Section 15 of the 1933 Act,
and their respective directors and officers (an "Indemnified Party") as
follows:
(i) against any and all loss, claim, damage and expense
whatsoever arising out of any untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
pursuant to which Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of Xxxxxxxx'x; and
(iii) against any and all expense whatsoever (including
reasonable fees and disbursements of counsel chosen by the Holder or
any Underwriter) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subsections (i) and (ii) of this Section
5(a);
provided, however, that this indemnity agreement does not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
Xxxxxxxx'x by the Holder or any Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto);
provided, further, however, that this indemnity agreement with respect to
any preliminary or amended preliminary Prospectus shall not inure to the
benefit of any
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Underwriter (or to the benefit of any Person controlling such Underwriter)
from whom the Person asserting any such loss, expense, liability or claim
purchased the Registrable Securities which are the subject thereof if the
Prospectus corrected any such alleged untrue statement or omission and if
such Underwriter failed to send or give a copy of the Prospectus to such
Person at or prior to the written confirmation of the sale of such
Registrable Securities to such Person.
(b) Indemnification by the Holder. The Holder agrees to indemnify and
hold harmless Xxxxxxxx'x and each Underwriter, and each of their
respective directors and officers (including each officer of Xxxxxxxx'x who
signed the Registration Statement), and each Person, if any, who controls
Xxxxxxxx'x and any Underwriter within the meaning of Section 15 of the 1933
Act (an "Indemnified Party"), against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 5(a)
hereof, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to Xxxxxxxx'x by the Holder expressly for use
in the Registration Statement (or any amendment thereto) or such
preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Conduct of Indemnification Proceedings. Each Indemnified Party
shall give prompt notice to each indemnifying party (the "Indemnifying
Party") of any action commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an Indemnifying Party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An Indemnifying Party may, at its own
expense, participate in and direct the defense of such action. In no event
shall the Indemnifying Parties be liable for the fees and expenses of more
than one counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to a party entitled to indemnification in respect of any
losses, liabilities, claims, damages and expenses referred to herein, then
each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as
a result of such losses, liabilities, claims, damages and expenses (i) in
such proportion as is appropriate to reflect the relative benefits received
by the parties or (ii) if such allocation is not permitted by applicable
law, the relative fault of the Indemnifying Party, on the one hand, and the
Indemnified Party, on the other hand, in connection with the statements or
omissions which resulted in losses, liabilities, claims, damages and
expenses as well as other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of
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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 statement or
omission. Xxxxxxxx'x and the Holder acknowledge that it would not be just
and equitable if contribution pursuant to this Section 5(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 prior provisions of this Section 5(d). Notwithstanding anything herein
to the contrary, no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Section 6. Registration Expenses. All expenses incident to the performance
by Xxxxxxxx'x of its obligations under this Agreement, including, without
limitation, all (i) registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications and
registrations (or the obtaining of exemptions) of the Registrable Securities),
(iii) printing expenses (including expenses of printing Prospectuses), (iv)
messenger and delivery expenses, (v) internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (vi) fees and disbursements of its counsel and
independent certified public accountants (including the expenses associated with
any special audit or comfort letters required by or incident to performance or
compliance), (vii) reasonable fees and expenses of any special experts retained
by Xxxxxxxx'x in connection with any registration, (viii) securities act
liability insurance, if any, and (ix) reasonable fees and expenses of other
Persons retained by Xxxxxxxx'x (all such expenses referred to as the
"Registration Expenses"), will be borne by Xxxxxxxx'x. Registration Expenses
shall not include any underwriting discounts, commissions or fees attributable
to the sale of the Registrable Securities, or any fees, expenses and
disbursements of counsel, accountants or other Persons retained by the Holder in
connection with the offering of Registrable Securities pursuant to this
Agreement. Such expenses shall be borne by the Holder.
Section 7. Rule 144. Xxxxxxxx'x shall use its reasonable best efforts to
file the reports required to be filed by it under the 1933 Act and the Exchange
Act and all rules and regulations promulgated by the SEC thereunder. Xxxxxxxx'x
shall take such additional actions as the Holder shall reasonably request to the
extent required from time to time to enable the Holder to sell Registrable
Securities without registration under the 1933 Act within the limitations of the
exemptions provided by Rule 144 thereunder.
Section 8. Holdback Agreements.
(a) Restrictions on Public Sales by the Holder. If the Holder is
timely notified in writing by the lead underwriter for an underwritten
offering by Xxxxxxxx'x to be effected by a registration under the 1933 Act,
the Holder shall not effect any
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public sale or distribution (including a sale pursuant to Rule 144) of
Registrable Securities during a Limitation Period (as defined below),
except as part of a Demand Registration or a Piggyback Registration.
(b) Restriction on Public Sales by Xxxxxxxx'x. Xxxxxxxx'x shall not
effect any public sale or distribution of the following securities during a
Limitation Period:
(i) securities of Xxxxxxxx'x that are the same class or series as
Registrable Securities (other than pursuant to an employee stock
option, stock purchase, stock bonus or similar plan, pursuant to a
merger, consolidation, exchange offer or a transaction of the type
specified in Rule 145(a) under the 0000 Xxx); or
(ii) securities of Xxxxxxxx'x similar to securities referred to
in clause (i) immediately above or securities of Xxxxxxxx'x
convertible into or exchangeable or exercisable for the securities
referred to in clause (i) immediately above.
(c) Limitation Period. For purposes of this Section 8, "Limitation
Period" shall mean the period beginning on the 10th day prior to the
effective date of a Registration Statement and ending on the later of (i)
the completion of the distribution of the securities pursuant to the
offering and (ii) 90 days after the effective date of the applicable
Registration Statement.
Section 9. Miscellaneous.
(a) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented
except in writing and signed by Xxxxxxxx'x and the Holder.
(b) Successors, Assigns and Transferees. This Agreement will be
binding upon and will inure to the benefit of Xxxxxxxx'x, CPS, the Person,
if any, that becomes the Holder after the date of this Agreement and each
person that succeeds to any of them by operation of law. CPS may assign its
rights, and delegate its obligations, under this Agreement to any Person
that acquires from CPS all Registrable Securities that CPS owns at the time
of the assignment and delegation, if the Person acquires at least 513,276
shares of the Registrable Securities (the number of shares to be reduced
appropriately to reflect reverse stock splits, recapitalizations, and other
transactions that have the effect of reducing proportionately the number of
shares of Xxxxxxxx'x Common Stock held by Xxxxxxxx'x stockholders). Upon
the assignment and delegation, the Person will become the Holder for all
purposes of this Agreement and, subject to Section 5(b), CPS will have no
liability or obligation under this Agreement from and after the time of
assignment and delegation.
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(c) Integration. This Agreement and the documents referred to in, or
delivered pursuant to, this Agreement that form a part of this Agreement
contain the entire understanding of Xxxxxxxx'x and CPS with respect to its
subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly provided in this
Agreement. This Agreement supersedes all prior agreements and
understandings between Xxxxxxxx'x and CPS with respect to its subject
matter.
(d) Notices. All notices, demands and requests required or permitted
hereunder shall be in writing, and shall be personally delivered,
telecopied, telexed or sent by courier service or United States mail and
will be deemed to have been given when delivered in person or by courier
service, upon receipt of a telecopy (such receipt evidenced by a
confirmation from the sender's telecopy machine that the notice was sent)
or telexed, or if mailed, five days after deposit in the United States mail
(registered or certified, with postage prepaid return receipt requested)
addressed to the party so notified and sent to the address or number so
indicated as follows:
if to Xxxxxxxx'x:
Xxxxxxxx'x, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Mr. R. Xxxx Xxxxxx
Xxxxxxxx'x, Inc.
0000 Xxxxxxx 00 Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
if to CPS:
Xxxxxx Xxxxx Xxxxx & Co.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. XxxXxxxxx
With a Copy to:
Xx. Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxx Xxxxx & Co.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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Each party may specify a different address or addressee upon giving five days'
prior written notice to the other party.
(e) Headings. All section and paragraph headings in this Agreement are
for convenience of reference and are not to be used to interpret this
Agreement.
(f) Severability. If any provision, paragraph, sentence, clause,
phrase or sentence in this Agreement is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of the provision, paragraph, sentence, clause, phrase or
sentence, in every other respect and of the remaining provisions,
paragraphs, sentences, clauses, phrases and sentences of this Agreement
will not be in any way impaired, it being intended that all rights, powers
and privileges of Xxxxxxxx'x and the Holder will be enforceable to the
fullest extent permitted by law.
(g) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Tennessee (without giving
effect to choice of law principles).
(h) Termination. This Agreement shall terminate on the Termination
Date; provided, however, Section 5 shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first written above.
Xxxxxxxx'x, Inc.
("Xxxxxxxx'x")
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Printed: Xxxxx X. Xxxxxx
----------------------------
Its: Senior Vice President
--------------------------------
Xxxxxx Xxxxx Xxxxx & Co.
("CPS")
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Printed: Xxxxxxx X. Xxxxxx
----------------------------
Its: Vice President
--------------------------------
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