EXHIBIT VI
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August 18,
1999, by and among Xxxxxxx American Corporation, a Delaware corporation
(the "Company"), and each of the holders named on the signature pages
hereto (collectively, the "Holders" and each individually, a "Holder").
This Agreement supersedes and replaces in its entirety that certain
Registration Rights Agreement, dated as of October 7, 1997 by and between
Richmont Marketing Specialists Inc. and MS Acquisition Limited (the "1997
Registration Rights Agreement").
The parties hereby agree as follows:
Section 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Business Day" means any day other than a day on which banks are
authorized or required to be closed in the State of New York.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the 6,705,551 shares of Common Stock received by
the Holders pursuant to the Merger Agreement, together with any shares of
Common Stock or any other class of capital stock of the Company received in
respect of such shares, by stock split, stock dividend, exchange,
recapitalization, reclassification or otherwise, and any shares owned by a
Holder during the term of this Agreement.
"Common Stock" means the common stock, par value $.0l per share, of
the Company.
"Company" has the meaning set forth in the preamble and shall include
the Company's successors by merger, acquisition, reorganization or
otherwise.
"Controlling Persons" has the meaning set forth in Section 8(a).
"Damages" has the meaning set forth in Section 8(a).
"Demand Registration Statement" has the meaning set forth in Section
2(a).
"Demand Threshold" shall have the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations
of the Commission promulgated thereunder.
"Holder" has the meaning set forth in the preamble and shall include
any assignee, successor or transferee who agrees to be bound by the terms
of this agreement to the same extent as any such Holder.
"Initiating Holders" shall have the meaning set forth in Section 2(a).
"Merger Agreement" means the Agreement and Plan of Merger, dated April
28, 1999, among the Company, RMSI and the other parties thereto.
"Xxxxxxx Agreement" means the Registration Rights Agreement dated as
of December 18, 1998 by and among the Company and the former stockholders
of Xxxxxxx Enterprises, Inc., a Massachusetts corporation.
"Monroe Agreement" means the Registration Rights Agreement dated as of
the date of this Agreement by and among the Company, Monroe & Company, LLC,
Xxxxxx X. Xxxxxxx and the other stockholders of the Company named therein.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
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, and by all other amendments and supplements to the prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference or deemed to be incorporated by
reference in such prospectus.
"Registrable Securities" means the Common Shares except for (i) Common
Shares the sale of which is covered by a Registration Statement that has
been declared effective under the Securities Act and (ii) Common Shares
which cease to be outstanding.
"Registration Expenses" has the meaning set forth in Section 6.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"Requesting Holder" shall mean any Holder requesting registration of
Registrable Securities pursuant to Section 2 or Section 3 hereof.
"RCP" means Richmont Capital Partners I, L.P.
"Richmont Party" means MS Acquisition Limited, a Texas limited
partnership, and Richmont Capital Partners I, L.P., a Delaware limited
partnership, and any of their affiliates or partners.
"RMSI" means Richmont Marketing Specialists Inc., a Delaware
corporation.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations of
the Commission promulgated thereunder.
"Selling Stockholders" has the meaning set forth in Section 2(a).
"Suspension Notice" has the meaning set forth in Section 5.
"Suspension Period" has the meaning set forth in Section 5.
Section 2. DEMAND REGISTRATIONS.
(a) On any six (6) occasions after the date which is one hundred
eighty (180) days after the date of the execution of this Agreement,
subject to the conditions set forth in this Agreement, one or more Holders
holding at least forty percent (40%) of the Registrable Securities then
held by all Holders (the "Demand Threshold") may request (the "Initiating
Holders") that the Company cause to be filed with the Commission and cause
to become effective a registration statement (a "Demand Registration
Statement") under the Securities Act relating to the sale by such Holders
of their Registrable Securities in accordance with the terms hereof;
provided, however, that until the first anniversary of the date hereof,
only a Richmont Party can make any such demand; and provided further that
any Richmont Party may request the Company to file and cause to become
effective a Demand Registration Statement if such request is for the
registration of all of such Richmont Party's Registrable Securities,
notwithstanding the fact that such Richmont Party's Registrable Securities
are less than the Demand Threshold. Upon receipt of any such request, the
Company shall give written notice of such proposed registration to all
Holders of Registrable Securities. Such Holders shall have the right, by
giving written notice to the Company within fifteen (15) business days
after such notice referred to in the preceding sentence has been given by
the Company, to elect to have included in the Demand Registration Statement
such of their Registrable Securities as each Holder may request in such
notice of election. Thereupon, the Company shall as soon as practicable
thereafter cause such Demand Registration Statement to be filed and
declared effective by the Commission for all Registrable Securities which
the Company has been requested to register. The Company shall in no event
be obligated to effect under this Section 2 more than six (6) demand
registrations. If the managing underwriter of an underwritten offering
with respect to which registration has been requested by any Holder
pursuant to this Section 2 has advised the Company that, in such
underwriter's good faith judgment, the number of securities to be sold in
such offering by the Company and persons other than the Company
(collectively, "Selling Stockholders") is greater than the number which can
be offered without adversely affecting such offering, then the Company may
reduce the number of securities to be included in such offering to a number
deemed satisfactory by the managing underwriter, provided, however, that
the securities to be excluded shall be determined in the following order of
priority: first, securities held by any Selling Stockholder not having
contractual, incidental registration rights; second, securities held by any
Selling Stockholder (not including the Holders) participating in such
offering pursuant to the exercise of contractual piggyback registration
rights (other than pursuant to the Xxxxxxx Agreement or the Monroe
Agreement), as determined on a pro rata basis (based upon the aggregate
number of securities held by such Selling Stockholders); third, securities
the Company proposes to sell and other securities of the Company included
in such registration and; fourth, securities held by any Holder
participating in such registration pursuant to the exercise of the demand
registration rights set forth in this Section 2, and any Selling
Stockholder participating in such offering pursuant to the exercise of
piggyback registration rights under the Xxxxxxx Agreement or the Monroe
Agreement, as determined on a pro rata basis (based upon the aggregate
number of securities held by such Holders or Selling Stockholders, as the
case may be).
(b) If a requested registration pursuant to this Section 2 involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by the Holders of at least a majority (by number of shares) of the
Registrable Securities as to which registration has been requested;
provided, however, that if any Richmont Party is an Initiating Holder, then
such underwriter or underwriters shall be selected by the Richmont Party
(or, if more than one Richmont Party, by the Richmont Party requesting the
registration of the largest number of Registrable Securities).
Section 3. PIGGY-BACK REGISTRATIONS.
(a) If at any time or times after the date hereof the Company shall
determine to register under the Securities Act any shares of Common Stock
(other than in connection with a registration on Form S-4 or S-8 (or then
equivalent forms) or a registration statement filed in connection with an
exchange offer or offering of securities solely to the Company's existing
security holders), then the Company shall promptly give written notice of
such proposed registration to the Holders (but in no event less than thirty
(30) days prior to the anticipated effective date of the registration
statement). If within twenty (20) days after the receipt of such notice
the Company receives a written request from any Holder for the inclusion in
such, registration of some or all of the Registrable Securities held by
such Holder (which request shall specify the number of Registrable
Securities intended to be disposed of by such Holder and the intended
method of distribution thereof), the Company shall use all commercially
reasonable efforts to cause such Registrable Securities to be included in
such registration on the same terms and conditions as any similar
securities of the Company or any other securityholder included therein and
to permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof. The Company
may withdraw a registration under this Section 3 at any time prior to the
time it becomes effective, provided that the Company shall give prompt
notice of such withdrawal to the Holders which requested to be included in
such registration.
(b) Notwithstanding the foregoing, if counsel to the Company
determines that the form of Registration Statement for any such
registration by the Company does not permit the registration of Registrable
Securities, such counsel shall deliver to the Holders an opinion stating
(i) that such form does not permit the registration of Registrable
Securities and (ii) that the use of a form permitting the registration of
Registrable Securities would not be commercially feasible. Such opinion
shall be delivered to the Holders no less than thirty (30) days prior to
the anticipated effective date of the Registration Statement and the
Company shall not be obligated to register Registrable Securities of any
Holder in such Registration Statement pursuant to this Section 3.
(c) In connection with any offering under this Section 3 involving an
underwriting, the Company shall not be required to include a Holder's
Registrable Securities in the underwritten offering unless such Holder
accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by the Company. If the managing underwriter
of an underwritten offering with respect to which registration has been
requested by any Holder pursuant to this Section 3 has advised the Company
in writing that, in such underwriter's good faith judgment, the number of
securities to be sold in such offering by Selling Stockholders is greater
than the number which can be offered without adversely affecting such
offering, then the Company may reduce the number of securities to be
included in such offering for the accounts of Selling Stockholders
(including the Holders) to a number deemed satisfactory by the managing
underwriter, provided, however, that the securities to be excluded shall be
determined in the following order of priority: first, securities held by
any Selling Stockholder not having contractual, incidental registration
rights; and second, securities held by any Selling Stockholder (including
the Holders) participating in such offering pursuant to the exercise of
contractual piggyback registration rights and in the case of the Monroe
Agreement, pursuant to the exercise of demand registration rights, as
determined on a pro rata basis (based upon the aggregate number of
securities held by such Selling Stockholders).
(d) Each Holder hereby agrees that such Holder may not participate in
any underwritten offering hereunder unless such Holder (i) agrees to sell
such Holder's Registrable Securities on the basis provided in the
underwriting arrangements for such offering, and (ii) completes and
executes all customary questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of the underwriting arrangements.
Section 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company to register
Registrable Securities pursuant to the terms and conditions of this
Agreement:
(a) the Company shall, as expeditiously as possible, prepare and
file with the Commission a Registration Statement on the appropriate form
under the Securities Act, which form shall comply as to form in all
materials respects with the requirements of the applicable form and include
all financial statements required by the Commission to be filed therewith;
provided, however, that in the case of a Registration Statement filed
pursuant to Section 2 hereof, that the form of such Registration Statement
shall be reasonably acceptable to the Holders of more than 50% of the
Registrable Securities to be so registered;
(b) the Company shall (i) prepare and file with the Commission
such amendments and post-effective amendments to any Registration Statement
as may be necessary to keep such Registration Statement effective until the
earlier of (A) one hundred eighty (180) days following the effectiveness of
such Registration Statement; provided, however, that such 180-day period
shall be extended by the number of days for which any Suspension Period is
in effect during the effectiveness of such Registration Statement, or (B)
the completion of the proposed offering of Registrable Securities pursuant
to such Registration Statement, (ii) cause the prospectus included in such
Registration Statement to be supplemented by any required prospectus
supplement, and, as so supplemented, to be filed pursuant to Rule 424 under
the Securities Act, and (iii) comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all Registrable
Securities covered by such Registration Statement. A registration
requested pursuant to Section 2 shall not be deemed to have been effected
(and therefore not requested for purposes of Section 2) (i) unless a
Registration Statement with respect thereto has become effective, provided
that a registration which does not become effective after the Company has
filed a Registration Statement with respect thereto solely by reason of the
refusal to proceed of the Initiating Holders (other than a refusal to
proceed based upon the advice of counsel relating to a matter with respect
to the Company) shall be deemed to have been effected by the Company at the
request of such Initiating Holders unless the Initiating Holders shall have
elected to pay all Registration Expenses in connection with such
registration, (ii) if, after it has become effective, such registration
becomes subject to any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason, or
(iii) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration
are not satisfied, other than by reason of some act or omission by such
Initiating Holders;
(c) the Company shall furnish to any Holder, without charge,
such number of conformed copies of any Registration Statement and any post-
effective amendment thereto and such number of copies of the Prospectus
(including each preliminary Prospectus) and any amendments or supplements
thereto, as such Holder may reasonably request in order to facilitate the
sale of such Holder's Registrable Securities;
(d) the Company shall use its best efforts to register or
qualify the Registrable Securities covered by any Registration Statement
under such other securities or "blue sky" laws of such states of the United
States as any Holder or underwriter reasonably requests; provided, however,
that the Company shall not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 4(d), (ii) to file any general consent to
service of process, or (iii) to subject itself to taxation in any
jurisdiction where it would not otherwise be subject to taxation;
(e) the Company shall promptly notify each Holder of the
happening of any event which any statement made in any Registration
Statement or related Prospectus untrue or which requires the making of any
changes in such Registration Statement or Prospectus so that 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 light of the circumstances under which they were
made, not misleading, and promptly following expiration of any Suspension
Period, the Company shall prepare and file with the Commission and furnish
a supplement or amendment to such Prospectus so that, as thereafter
deliverable to the purchasers of Registrable Securities, such Prospectus
will not contain any 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 light of the circumstances under which they were
made, not misleading;
(f) the Company shall use its best efforts to prevent the
issuance of any order suspending the effectiveness of any Registration
Statement, and, if one is issued, the Company shall use its best efforts to
obtain the withdrawal of such order as promptly as practicable;
(g) the Company shall use its best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(h) the Company shall furnish to each seller of Registrable
Securities and each Requesting Holder a signed counterpart, addressed to
such seller, such Requesting Holder and the underwriters, if any, of:
(X) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such
registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement),
reasonably satisfactory in form and substance to such seller, and
(Y) a "comfort" letter (or, in the case of any such Person
which does not satisfy the conditions for receipt of a "comfort"
letter specified in Statement on Auditing Standards No. 72, an
"agreed upon procedures" letter), dated the effective date of
such registration statement (and, if such registration includes
an underwritten public offering, a letter of like kind dated the
date of the closing under the underwriting agreement), signed by
the independent public accountants who have certified the
Company's financial statements included in such registration
statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered
to the underwriters in underwritten public offerings of securities
(with, in the case of an "agreed upon procedure" letter, such
modifications or deletions as may be required under Statement on
Auditing Standards No. 35) and, in the case of the accountants'
letter, such other financial matters, and, in the case of the legal
opinion, such other legal matters, as such seller or such Requesting
Holder (or the underwriters, if any) may reasonably request;
(i) the Company shall notify the Holders of Registrable
Securities and the managing underwriter or underwriters, if any, promptly
and confirm such advice in writing promptly thereafter:
(V) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment
to the registration statement has been filed, and, with respect
to the registration statement or any post-effective amendment
thereto, when the same has become effective;
(W) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or
for additional information;
(X) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose;
(Y) if at any time the representations and warranties of
the Company made as contemplated by this Agreement cease to be
true and correct; and
(Z) 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 or threat of any proceeding for
such purpose;
(j) the Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, but
not more than eighteen (18) months, beginning with the first day of the
Company's first full calendar quarter after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder,
and will furnish to each such seller and each Requesting Holder at least
five (5) business days prior to the filing thereof a copy of any amendment
or supplement to such registration statement or prospectus and shall not
file any thereof to which any such seller or any Requesting Holder shall
have reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(k) the Company shall provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective
date of such registration statement;
(l) the Company shall enter into such agreements and take such
other actions as sellers of such Registrable Securities holding more than
50% of the shares so to be sold shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(m) the Company shall use its best efforts to list all
Registrable Securities covered by such registration statement on any
securities exchange on which any of the securities of the same class as the
Registrable Securities are then listed; and
(n) the Company shall use its best efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective date of
the registration statement.
The Company will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto (including such
documents incorporated by reference and proposed to be filed after the
initial filing of the registration statement) to which the Holders of at
least a majority of the Registrable Securities covered by such registration
statement or the underwriter or underwriters, if any, shall reasonably
object, provided that the Company may file such document in a form required
by law or upon the advice of its counsel.
Section 5. SUSPENSION PERIOD.
Each Holder, upon receipt of any notice (a "Suspension Notice") from
the Company of the happening of any event of the kind described in Section
4(e) or of any event which, in the Company's reasonable business judgment
and good faith judgment, could become such an event, shall immediately
discontinue disposition of the Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(e) (the period from the date on which such Holder
receives a Suspension Notice to the date on which such Holder receives
copies of the supplemented or amended Prospectus is referred to herein as
the "Suspension Period"). If so directed by the Company, each Holder will
deliver to the Company all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities that is current at the time of receipt of such notice. In the
event that the Company shall give any Suspension Notice, the Company shall
use commercially reasonable efforts and take such actions as are reasonably
necessary to end the Suspension Period as promptly as practicable.
Section 6. REGISTRATION EXPENSES.
Subject to the proviso below, any all expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation Commission and securities exchange registration and
filing fees, reasonable fees and expenses of one legal counsel for the
Holders, fees and expenses incurred in connection with state securities or
"blue sky" laws, printing expenses, fees and expenses incurred in
connection with the listing of the Registrable Securities and fees and
disbursements of counsel for the Company and of the independent certified
public accountants of the Company (all such expenses being herein called
"Registration Expenses"), will be borne by the Company; provided, however,
that Registration Expenses shall not include (a) underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities, or (b) any fees or expenses of any counsel,
accountants or other persons retained or employed by the Holders (other
than the fees and expenses of one legal counsel as provided above).
Section 7. UNDERWRITTEN OFFERINGS
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by Holders of Registrable
Securities pursuant to a registration requested under Section 2, the
Company will enter into an underwriting agreement with such underwriters
for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, each such Holder and the underwriters,
and to contain such representations and warranties by the Company and such
other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities. The Holders of the Registrable
Securities will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable
suggestions of the Company regarding the form thereof, provided that
nothing herein contained shall diminish the foregoing obligations of the
Company. The Holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at
their option, 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 shall also be made to and for the benefit of
such Holders of Registrable Securities 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
Holders of Registrable Securities. Any such Holder of Registrable
Securities shall not be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations and warranties contained in writing furnished by such
Holder expressly for use in such registration statement or agreements
regarding such Holder, such Holder's Registrable Securities and such
Holder's intended method of distribution and any other representation
required by law or to make any agreements with the Company or the
underwriters with respect to indemnification of any Person or the
contribution obligations of any Person that would impose any obligation
beyond or inconsistent with the provisions of this Agreement.
(b) Incidental Underwritten Offerings. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by Section 3 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any
Holder of Registrable Securities as provided in Section 3, use its best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such Holder among the securities to be
distributed by such underwriters. The Holders of Registrable Securities to
be distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriters and may, at their
option, 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 shall also be made to and for the benefit of such
Holders of Registrable Securities 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 Holders of
Registrable Securities. Any such Holder of Registrable Securities shall
not 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, such Holder's Registrable Securities
and such Holder's intended method of distribution and any other
representation required by law or to make any agreements with the Company
or the underwriters with respect to indemnification of any Person or the
contribution obligations of any Person that would impose any obligation
beyond or inconsistent with the terms of this Agreement.
(c) Holdback Agreements.
(i) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities, if and to the extent so
required by the managing underwriter, not to sell, make any short sale
of, loan, grant any option for the purchase of, effect any public sale
or distribution of or otherwise dispose of any securities of the
Company, during the 7 days prior to and the 90 days after any
underwritten registration pursuant to Section 2 or 3 has become
effective, except as part of such underwritten registration, whether
or not such Holder participates in such registration, provided that
the foregoing restrictions shall not apply with regard to any Richmont
Party in a distribution of Registrable Securities to its partners or
to the transfer to any affiliate of such Persons or to any other
transferee in a private transaction not requiring registration under
the Securities Act, or to any bona fide pledge of such Registrable
Securities, provided that such affiliate or other transferee and/or
lender or creditor acknowledges in writing that it is bound by the
provisions of this Section 7(c). Each Holder of Registrable
Securities agrees that the Company may instruct its transfer agent to
place stop transfer notations in its records to enforce this Section
7(c).
(ii) The Company agrees (X) if so required by the managing
underwriter not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of
or otherwise dispose of its equity securities or securities
convertible into or exchangeable or exercisable for any of such
securities during the seven days prior to and the 90 days after any
underwritten registration pursuant to Section 2 or 3 has become
effective, except as part of such underwritten registration and except
pursuant to registrations on Form X-0, X-0, or any successor or
similar forms thereto, and (Y) to cause each holder of its securities
purchased from the Company at any time after the date of this
Agreement (other than in a public offering) to agree not to sell, make
any short sale of, loan, xxxx any option for the purchase of, effect
any public sale or distribution of or otherwise dispose of such
securities during such period.
(d) Participation in Underwritten Offerings. No Person may
participate in any underwritten offering hereunder unless such person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved, subject to the terms and conditions
hereof, by the Company and the Holders of a majority of Registrable
Securities to be included in such underwritten offering and (ii) completes
and executes all questionnaires, indemnities, underwriting agreements and
other documents (other than powers of attorney) required under the terms of
such underwriting arrangements. Notwithstanding the foregoing, no
underwriting agreement (or other agreement in connection with such
offering) shall require any Holder of Registrable Securities to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations and warranties contained in a
writing furnished by such Holder expressly for use in the related
registration statement or agreements regarding such Holder, such Holder's
registrable Securities and such Holder's intended method of distribution
and any other representation required by law or to make any agreements with
the Company or the underwriters with respect to indemnification of any
Person or the contribution obligations of any Person that would impose any
obligation beyond or inconsistent with the provisions of this Agreement.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder, its
officers, directors, trustees, employees, agents, successors and assigns
and each Person, if any, which controls such Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
(collectively, "Controlling Persons"), from and against all losses, claims,
damages, liabilities and expenses (including without limitation any legal
or other fees and expenses reasonably incurred by any Holder or any such
Controlling Person in connection with defending or investigating any action
or claim in respect thereof) (collectively, "Damages") to which any of them
may become subject under the Securities Act or otherwise, insofar as such
Damages arise out of or are based upon (i) any untrue or alleged untrue
statement of material fact contained in any Registration Statement
(including any related preliminary or final Prospectus) pursuant to which
Registrable Securities were registered under the Securities Act, or (ii)
any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such Damages arise out of
or are based upon any such untrue statement or omission or alleged untrue
statement or omission based upon information furnished in writing to the
Company by such Holder expressly for use therein.
(b) Indemnification by the Holders. Each Holder agrees to indemnify
and hold harmless, to the full extent permitted by law, the Company, its
directors, officers, employees and agents and each Controlling Person of
the Company, from and against any and all Damages to which any of them may
become subject under the Securities Act or otherwise to the same extent as
the foregoing indemnity from the Company to such Holder, but only to the
extent such Damages arise out or are based upon any untrue statement or
omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement. In no event shall the liability of any Holder for
indemnification under this Section 8(b) in its capacity as such (and not in
such Holder's capacity as an officer or director of the Company) exceed the
proceeds received by such Holder from the sale of Registrable Securities
under such Registration Statement.
(c) Indemnification Procedures. In case any proceeding (including
any governmental investigation) shall be instituted involving any Person in
respect of which indemnity may be sought pursuant to either paragraph (a)
or (b) above, such Person (the "indemnified party") shall promptly notify
the Person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceedings and shall pay the fees and disbursements of such counsel
relating to such proceeding. The failure or delay of an indemnified party
to notify the indemnifying party with respect to a particular proceeding
shall not relieve the indemnifying party from any obligation or liability
which it may have pursuant to this Agreement if the indemnifying party is
not prejudiced by such failure or delay. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding without its written consent. No indemnifying
party shall, without the prior written consent of any indemnified party
(which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which such
indemnified party is a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on all claims that are
the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided
for in paragraph (a) or (b) of this Section 8 is held by a court of
competent jurisdiction to be unavailable to an indemnified party in respect
of any Damages, then each indemnified party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
Damages (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and each Holder on the
other, from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Holders, on the other, in connection with
the statements or omissions which resulted in such Damages, as well as any
other relevant equitable considerations. The relative fault of the Company
on the one hand and of the Holders 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 Company or by the
Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
If indemnification is available under paragraph (a) or (b) of this
Section 8, the indemnifying parties shall indemnify each indemnified
party to the full extent provided in such paragraphs without regard to
the relative benefits to or relative fault of said indemnifying party or
indemnified party or any other equitable consideration provided for in this
Section 8(d).
The Company and each Holder agrees that it would not be just or
equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the Damages referred
to in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred (and not otherwise reimbursed) by such indemnified
party in connection with investigating or defending any such action or
claim. In no event shall any Holder be required to contribute an amount
under this Section 8(d) in excess of the proceeds received by such Holder
from the sale of Registrable Securities under the relevant Registration
Statement. 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.
Section 9. INFORMATION FURNISHED BY HOLDERS.
Each Holder shall furnish to the Company such information regarding
such Holder and such Holder's intended method of distribution of the
Registrable Securities as the Company may from time to time reasonably
request in writing in order to comply with the Securities Act and the
provisions of this Agreement. Each Holder agrees (a) to notify the Company
as promptly as practicable of any inaccuracy or change in information
previously furnished by the Holder to the Company or of the occurrence of
any event, in either case as a result of which any Prospectus contains or
would contain an untrue statement of a material fact regarding the Holder
or the Holder's intended method of distribution of the Registrable
Securities or omits or would omit to state any material fact regarding the
Holder or the Holder's intended method of distribution of the Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and (b) to promptly furnish to the Company any additional
information required to correct and update any previously furnished
information or required so that the Prospectus shall not contain, with
respect to the Holder or the Holder's intended method of distribution of
the Registrable Securities, 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 not misleading in light of the circumstances then
existing.
Section 10. "MOST FAVORED NATIONS" ELECTION.
In the event that after the date of this Agreement, but prior to its
termination, the Company enters into an agreement with any Holder of shares
of its Common Stock whereby such Holder is granted registration rights with
respect to such shares (a "Subsequent Agreement"), then the Company shall
(a) provide each Holder of Registrable Securities a copy of such
agreement promptly after its execution, and
(b) offer each such Holder of Registrable Securities an opportunity
to elect to enter into an agreement with the Company whereby such Holder of
Registrable Securities, in lieu of its rights hereunder, shall be entitled
to the registration rights equivalent to those described in the Subsequent
Agreement.
A Holder of Registrable Securities shall have 20 days after the date
on which notice of such event is deemed to have been given by the Company
pursuant to the provisions of Section 11(b) of this Agreement, to notify
the Company in writing of its election to terminate its rights under this
Agreement and, in lieu thereof, to enter into a new agreement containing
registration rights equivalent to those contained in the Subsequent
Agreement. Such new agreement shall be executed promptly after receipt of
such notice by the Company.
Section 11. MISCELLANEOUS
(a) 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 Company has obtained the written consent
of the Holders of a majority in interest of the Registrable Securities then
outstanding.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by registered or certified mail
(return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at
such other address for any party as shall be specified by like notice,
provided that notices of a change of address shall be effective only upon
receipt thereof). All such notices and communications shall be deemed to
have been received: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; and on the next Business Day if timely delivered to a courier
guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for
an express assignment, subsequent Holders. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all
of the terms of this Agreement, and by taking and holding such Registrable
Securities such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
and such person shall be entitled to receive the benefits hereof.
(d) 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.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to
principles of conflicts of law.
(g) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein
shall not be in any way impaired thereby, it being intended that all of the
rights and privileges of the Holders shall be enforceable to the fullest
extent permitted by law.
(h) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(i) Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(j) Rule 144. The Company shall timely file any reports required to
be filed by it under the Securities Act and the Exchange Act to the extent
required from time to time to enable the Holders to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemption provided by Rule 144 under the Securities Act. Upon request of
any Holder, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
(k) Termination of 1997 Registration Rights Agreement. MS
Acquisition Limited and Richmont Marketing Specialists Inc. hereby
terminate the 1997 Registration Rights Agreement and agree that none of
such parties shall have any further rights or obligations thereunder.
[End of text]
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
XXXXXXX AMERICAN CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
Address:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
HOLDERS:
MS ACQUISITION LIMITED
By: MS Acquisition Corp.
its General Partner
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Address:
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX X. XXXXXX
Address:
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxx X. Xxxxxx
-------------------------------------
XXXX X. XXXXXX
Address:
00 Xxxxxxxx
Xxxxxx Xxxx, Xxxxx 00000
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
XXXXXX X. XXXXXXXX
Address:
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxxxxx X. Xxxx
-----------------------------------
XXXXXXX X. XXXX
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
