EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of November
9, 1998, by and among Consolidated Graphics, Inc., a Texas corporation (the
"Company") and XxXxx Communications, Inc. (the "Holder").
W I T N E S S E T H :
WHEREAS, it is a condition to the consummation of the transactions
contemplated by that certain Agreement and Plan of Reorganization by and among
the Company, XxXxx Acquisition Company, a Michigan corporation ("Newco"), The
XxXxx Press, Inc., a Michigan corporation, and the Holder dated as of November
9, 1998 (the "Merger Agreement") that this Agreement be executed and delivered
by the Company to the Holder;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Holder agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following terms
have the meanings indicated below:
AGENT shall mean any Person acting for or on behalf of a Holder of
Registrable Securities with respect to the holding or sale of such Registrable
Securities.
AGREEMENT shall mean this Registration Rights Agreement.
BUSINESS DAY shall mean any day other than a Saturday, Sunday, or a day on
which the New York Stock Exchange is not open for business.
COMMISSION shall mean the Securities and Exchange Commission.
COMMON STOCK shall mean the Company's common stock, par value $.01 per
share, or any successor class of the Company's common stock.
COMPANY shall mean Consolidated Graphics, Inc.
EFFECTIVE DATE shall mean the date upon which the Merger becomes
effective.
EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as amended.
INSPECTORS shall mean the Holder, any underwriter participating in any
disposition of Registrable Securities pursuant to the Required Registration and
any attorney, accountant or other agent retained by such Holder or underwriter.
LIABILITIES shall mean all losses, claims, damages, liabilities, whether
joint or several, and expenses (including, but not limited to, reasonable costs
of investigation, expert witness, appraisal
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and other professional fees) and any amount paid in any settlement effected with
the Company's consent.
MERGER AGREEMENT shall mean that certain Agreement and Plan of
Reorganization by and among the Company, Newco, The XxXxx Press, Inc. and the
Holder dated as of November 9,1998.
NEW COMMON STOCK shall mean the shares of Common Stock of the Company to
be acquired by the Holder pursuant to the Merger Agreement.
PERSON shall mean any individual, corporation, limited liability company,
partnership (general or limited), joint venture, association, joint-stock
company, trust, unincorporated organization or government or a political
subdivision, agency or instrumentality thereof or other entity or organization
of any kind.
RECORDS shall mean all financial and other records, pertinent corporate
documents and properties of the Company.
REGISTRABLE SECURITIES shall mean the New Common Stock and the Related
Securities for so long as such New Common Stock and/or Related Securities are
held by the Holder until such time as the New Common Stock and the Related
Securities have been (i) distributed to the public pursuant to a registration
statement covering such securities that has been declared effective under the
Securities Act, or (ii) sold in accordance with the provisions of Rule 144 (or
any similar provision then in force) under the Securities Act.
REGISTRATION EXPENSES shall mean all expenses incident to the Company's
performance of or compliance with the Required Registration pursuant to this
Agreement, including without limitation all Commission and securities exchange
or National Association of Securities Dealers, Inc. registration and filing
fees, fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of the Company's counsel in connection with
blue sky qualifications of the Registrable Securities), rating agency fees,
printing expenses (including the printing of prospectuses), messenger and
delivery expenses, internal expenses (including salaries and expenses of its
officers and employees performing legal or accounting duties), the fees and
expenses incurred in connection with the listing of the Registrable Securities
to be registered on each securities exchange on which similar securities issued
by the Company are then listed and fees and disbursements of counsel for the
Company and its independent certified public accountants, the fees and expenses
of any special experts retained by the Company in connection with such
registration, underwriting fees, discounts or commissions attributable to the
sale of Registrable Securities, and all out-of-pocket expenses of the Holder
(including, without limitation, the fees and disbursements of Holder's counsel)
arising out of or in connection with the Required Registration.
RELATED ACQUISITIONS shall mean the three (3) transactions contemplated by
those three (3) certain letters of intent dated July 29, 1998 between the
Company and (i) Xxxxxxx Xxxxx, et al, (ii) Xxxx Xxxxxxxx, et al, and (iii) Xxxx
X. Xxxxxxx, et al.
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RELATED SECURITIES shall mean any securities issued in exchange for (or
upon the conversion or exercise of any convertible security, warrant or stock
option) as a dividend on or in replacement of, or otherwise issued in respect
of, or in replacement for (including securities issued in a stock dividend,
split or recombination or pursuant to the exercise of preemptive rights), the
New Common Stock.
REQUIRED REGISTRATION shall mean the registration with the Commission and
all applicable state securities agencies pursuant to Section 2 hereof of the
offer and sale of the Registrable Securities under and in accordance with the
provisions of the Securities Act and as set forth in Section 2 of this
Agreement.
SECURITIES ACT shall mean the Securities Act of 1933, as amended.
Section 2. REQUIRED REGISTRATION.
a. Subject to the terms and conditions contained in this Agreement, the
Company shall file with the Commission a registration statement on Form S-3
under Rule 415 of the Securities Act covering the offer and sale of all of the
Registrable Securities held by the Holder under and in accordance with the
provisions of the Securities Act.
b. The Company shall file a registration statement for the offer and sale
of the Registrable Securities on or before the sooner to occur of (i) thirty
(30) calendar days following the Effective Date, or (ii) five (5) calendar days
following the last closing date of the Related Acquisitions; provided, however,
that if each of the Related Acquisitions has closed and the registration
statement(s) covering the resale of the Common Stock issued in connection
therewith has been declared effective prior to the Effective Date, this clause
(ii) shall no longer be effective and the filing of the registration statement
by the Company shall occur no later than thirty (30) days following the
Effective Date.
c. If the Required Registration is an underwritten offering, the Holder(s)
of a majority of the Registrable Securities to be included in the Required
Registration will select a managing underwriter or underwriters to administer
the offering. Such managing underwriter or underwriters shall be acceptable to
the Company, and such acceptance will not be unreasonably withheld or delayed.
Section 3. RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE
SECURITIES. To the extent not inconsistent with applicable law, if the
Registrable Securities held by the Holder are included in a registration
statement pursuant to this Agreement, the Holder agrees not to effect any public
sale or distribution of the issue being registered (or any securities of the
Company convertible into or exchangeable or exercisable for securities of the
same type as the issue being registered) during the 14 days before, and during
the 90-day period beginning on, the effective date of a registration statement
filed by the Company (except as part of such registration), but only if and to
the extent requested in writing (with reasonable prior notice) by the managing
underwriter or underwriters in the case of an underwritten public offering by
the Company of securities of the same type as the Registrable Securities;
provided, however, that the period of time for which the Company is
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required to keep such registration statement which includes Registrable
Securities continuously effective shall be increased by a period equal to such
requested holdback period.
Section 4. COOPERATION BY HOLDER. The offering of Registrable Securities
by the Holder shall comply in all material respects with the applicable terms,
provisions and requirements set forth in this Agreement, and Holder shall timely
provide the Company with all information and materials required to be included
in a registration statement and that relate to the offering of the Registrable
Securities of Holder, and to take all such action as may be reasonably required
in order not to delay the registration and offering of the securities by the
Company. The Company shall have no obligation to include in such registration
statement shares of the Holder if the Holder has failed to furnish such
information which, in the written opinion of counsel to the Company, is required
in order for the registration statement to be in compliance with the Securities
Act. If the Holder fails to furnish such information and as a result thereof,
(i) the Holder's Registrable Securities are not included in the registration
statement at the time it becomes effective, or (ii) such Required Registration
shall not become effective under the Securities Act then, in either such event,
the Holder shall have no further rights under this Agreement to require the
registration of the Holder's Registrable Securities nor shall the Holder have
any right to request inclusion of the Holder's Registrable Securities in a
future registration with respect to the Company's Common Stock.
Section 5. REGISTRATION PROCEEDINGS. In connection with the Required
Registration, the Company will act as expeditiously as possible to:
a. prepare and file with the Commission and all applicable state
securities agencies a registration statement within the applicable period
provided in Section 2 which includes the Registrable Securities and use
commercially reasonable efforts to cause such registration statement to become
effective as soon as practicable; provided, however, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of the
registration statement, the Company will furnish to the Holder and the
underwriters, if any, draft copies of all such documents proposed to be filed at
least three (3) Business Days prior thereto, which documents will be subject to
the reasonable review of the Holder and underwriters, if any, and the Company
will not file any registration statement or amendment thereto or any prospectus
or any supplement thereto (including such documents incorporated by reference)
to which the Holder or the underwriters, if any, with respect to the Holder's
Registrable Securities covered by such registration statement, shall reasonably
object, and will notify the Holder of any stop order issued or threatened by the
Commission and any applicable state securities agencies in connection therewith
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
b. prepare and file with the Commission and any applicable state
securities agencies such amendments and post-effective amendments to the
registration statement as may be necessary to keep the registration statement
effective for such period until the Holder can distribute such Registrable
Securities without regard to the volume limitations contained in Rule 144(d)
under the Securities Act or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold or
withdrawn, but not before the expiration of the
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90-day period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable; cause the prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act and all applicable state securities laws applicable to it with
respect to the disposition of all securities covered by such registration
statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such registration statement
or supplement to the prospectus;
c. furnish to the Holder and the underwriter or underwriters, if any,
without charge, such number of conformed copies of the registration statement
and any post-effective amendment thereto (including exhibits) and such number of
copies of the prospectus (including each preliminary prospectus) and any
amendments or supplements thereto, and any documents incorporated by reference
therein, as the Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities being sold by the
Holder (it being understood that the Company consents to the use of the
prospectus and any amendment or supplement thereto, provided by the Company to
the Holder with respect to the Registrable Securities covered by the
registration statement and the underwriter or underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the prospectus or any amendment or supplement thereto); provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to counsel selected by the Holder
copies of all documents proposed to be filed which documents will be subject to
the review of such counsel;
d. notify the Holder, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, when the Company becomes
aware of the happening of any event as a result of which the prospectus included
in such registration statement (as then in effect) contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of the prospectus or any preliminary prospectus,
in light of the circumstances under which they were made) not misleading and, as
promptly as practicable thereafter, prepare and file with the Commission and all
applicable state securities agencies and furnish a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such 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;
e. use commercially reasonable efforts to cause all Registrable Securities
included in such registration statement to be listed, by the date of the first
sale of Registrable Securities pursuant to such registration statement, on each
securities exchange (including, for this purpose, The New York Stock Exchange)
on which the Common Stock of the Company is then listed or proposed to be
listed, if any;
f. make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
45 days after the end of the twelve-month period beginning with the first day of
the Company's first fiscal quarter commencing after the effective date of the
registration statement, which earnings statement shall cover said twelve-month
period, which requirement will be deemed to be satisfied if the Company timely
files complete and accurate information on Forms 10-Q, 10-K, and 8-K under the
Exchange Act and otherwise complies with Rule 158 under the Securities Act as
soon as feasible;
g. make every reasonable effort to obtain the withdrawal of any stop
order, order suspending the effectiveness of the registration statement at the
earliest possible moment;
h. if reasonably requested by the managing underwriter or underwriters or
the Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters or the Holder requests
to be included therein, including without limitation, with respect to the number
of Registrable Securities being sold by the Holder to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and any other terms of the underwritten offering of such
Registrable Securities, and promptly make all required filings of such
prospectus supplement or post-effective amendment;
i. as promptly as practicable after filing with the Commission of any
document which is incorporated by reference into a registration statement,
deliver a copy of such document to the Holder of Registrable Securities covered
by such registration statement;
j. on or before the date on which the registration statement is declared
effective, use commercially reasonable efforts to register or qualify, and
cooperate with the Holder of Registrable Securities included in such
registration statement, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the Registrable
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as the Holder or underwriter reasonably requests in writing, to use
reasonable diligence to keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the period such
registration statement is required to be kept effective and to do any and all
other acts or things necessary or advisable to enable the disposition in all
such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
k. cooperate with the Holder of Registrable Securities covered by the
registration statement and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or underwriters, if any, or the Holder
may request, subject to the underwriters' obligation to return to the Holder any
certificates representing securities not sold;
l. use commercially reasonable efforts to cause the Registrable Securities
covered by the registration statement to be registered with or approved by such
other governmental agencies or
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authorities within the United States as may be necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to consummate the
disposition of such securities;
m. deliver to the Holder and its counsel and the managing underwriter or
underwriters, if any, copies of all correspondence related to the offering
between the Commission, the Company and its counsel;
n. make available for inspection by the Inspectors such Records as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors, and employees to
respond to all reasonable inquiries from, and to supply all Records reasonably
requested by, any such Inspector in connection with such registration statement;
provided, however, that with respect to any Records that are confidential, the
Inspectors shall execute such confidentiality agreements as the Company may
reasonably request in order to maintain the confidentiality of confidential
Records.
Notwithstanding the foregoing provisions of this Section 5, upon expiration of
the period described in subsection b. of this Section 5 during which the Company
is obligated to keep the registration statement effective, the Company shall
have the right to de-register any Registrable Securities which have not been
sold prior to such date. In addition, the Holder acknowledges that there may
occasionally be times when the Company must suspend the use of the prospectus
included in such registration statement until such time as an amendment to the
registration statement has been filed by the Company and declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The Holder, upon
receipt of any notice from the Company of the happening of any event of the kind
described in subsection d. of this Section 5, will forthwith discontinue
disposition of the Registrable Securities until the Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by the first
sentence of this paragraph, subsection d. of this Section 5, or until it is
advised in writing by the Company that the use of the prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the Company,
the Holder will, or will request the managing underwriter or underwriters, if
any, to, deliver to the Company (at the Company's expense) all copies in their
possession or control, other than permanent file copies then in the Holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice. The Company will use commercially reasonable
efforts to amend or supplement, as necessary, its registration statement to
permit the sale of the Registrable Securities to resume ninety (90) days after
it has given the notice referred to in the preceding sentence. If the Company
shall give any such notice, the time periods mentioned in subsection b. of this
Section 5 and elsewhere herein shall be extended by the number of days during
the 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 have received the copies of the supplemented or
amended prospectus contemplated by the first sentence of this paragraph,
subsection d. of this Section 5 hereof, or the notice that they may resume use
of the prospectus.
Section 6. REFERENCE TO HOLDER IN REGISTRATION STATEMENT. If such
registration statement refers to the Holder by name or otherwise as the holder
of any securities of the Company, then
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the Holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to the Holder, to the effect that
the holding by the Holder of such securities is not to be construed as a
recommendation of the Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that the Holder
will assist in meeting any future financial requirements of the Company, or (ii)
if such reference to the Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to the Holder.
Section 7. REQUIRED REGISTRATION EXPENSES. All Registration Expenses
incident to the Company's performance of the Required Registration, pursuant to
this Agreement, except underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities and any out-of-pocket expenses (including,
without limitation, the fees and disbursements of Holder's counsel) of the
Holder of the Registrable Securities, will be borne by the Company.
Section 8. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless the Holder and each Person who controls the Holder (within the
meaning of the Securities Act), and any Agent or investment advisor thereof
against all Liabilities arising out of or based upon any untrue or alleged
untrue statement of material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary prospectus
together with the documents incorporated by reference therein, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as any such Liabilities arise out of or are based upon any untrue
statement or omission with respect to such indemnified Person furnished in
writing to the Company by such indemnified Person expressly for use therein. In
connection with an underwritten offering, the Company will indemnify the
underwriters thereof, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holder of
Registrable Securities or to such other extent as the Company and such
underwriters may agree.
Section 9. INDEMNIFICATION BY HOLDER. In connection with any registration
statement in which the Holder is participating, the Holder will furnish to the
Company in writing such information with respect to the name and address of the
Holder and the amount of Registrable Securities held by the Holder and such
other information as the Company shall reasonably request for use in connection
with any such registration statement or prospectus, and agrees to indemnify, to
the extent permitted by law, the Company, its directors and officers, and each
Person who controls the Company (within the meaning of the Securities Act)
against any Liabilities resulting from any untrue statement of a material fact
or any omission of a material fact required to be stated in the registration
statement or prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is based upon any
information with respect to the Holder so furnished in writing by the Holder
specifically for inclusion in any prospectus or registration statement. The
indemnification provided for in this section shall be limited to the net dollar
amount received by the Holder.
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Section 10. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such Person may claim indemnification or contribution
pursuant to this Agreement (provided the failure to so notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party so long as the failure to so notify the indemnifying party
does not prejudice the indemnifying party's ability to defend any such action,
suit, investigation, proceeding or claim) and, unless in the written opinion of
counsel for such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party. Whether or not such defense
is assumed by the indemnifying party, the indemnifying party will not be subject
to any liability for any settlement made without its consent. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation. If the indemnifying party is not entitled to, or
elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel with respect to such claim,
unless in the opinion of counsel for any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels.
Section 11. CONTRIBUTION. If the indemnification provided for in Sections
8 and 9 from the indemnifying party is unavailable or insufficient to hold
harmless to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities, or expenses (including reasonable costs of investigation)
referred to therein, then the 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, claims, damages, liabilities, or
expenses (including reasonable costs of investigation) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions or omissions which resulted
in such losses, claims, damages, liabilities, or expenses (including reasonable
costs of investigation), as well as any other relative equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such action, untrue statement or omission. The amount paid or
payable by a party as a result of any losses, claims, damages, liabilities, and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 10, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph. No Person guilty of
fraudulent misrepresentation (within the
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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 obligations of the Company pursuant to Sections 8, 9, 10
and 11 shall be further subject to such additional express agreements of the
Company as may be required to facilitate an underwritten offering, provided,
however, that no such agreement shall in any way limit the rights of the Holder
of Registrable Securities under this Agreement, or create additional obligations
of the Holder not set forth herein, except as otherwise expressly agreed in
writing by the Holder.
Section 12. NO OBLIGATION FOR UNDERWRITTEN REGISTRATIONS. Notwithstanding
any statement contained herein to the contrary, or seemingly to the contrary,
the Company is under no obligation to cooperate with the Holder in connection
with any underwritten offering.
Section 13. RULE 144.
a. The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of the Holder of
Registrable Securities, make publicly available other nonconfidential
information so long as necessary to permit sales under Rule 144 under the
Securities Act).
b. Subject to the conditions of this Section 13, the Company further
covenants that it will take such other action as the Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable the Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the Commission. Upon
the request of the Holder, the Company will deliver to the Holder a written
statement as to whether it has complied with such requirements.
c. The Company covenants that at such time the Holder is permitted to sell
Registrable Securities without registration under the Securities Act within the
limitations of the exemption provided under Rule 144(k) under the Securities
Act, as such Rule may be amended from time to time, the Company shall, upon
request of the Holder and to the extent the Company is otherwise legally
permitted to do so, remove the restrictive legend set forth on any certificate
evidencing the Holder's Registrable Securities. The Holder shall only be
permitted to make a single request for the removal of such restrictive legend in
accordance with the foregoing provisions.
d. If at any time the Holder shall seek to transfer any Registrable
Securities other than pursuant to the registration statement filed by the
Company pursuant to Section 2 hereof while the certificates evidencing such
Registrable Securities contain a legend restricting the transfer hereof, Holder
shall, at the Holder's cost and expense, provide an opinion of counsel
reasonably acceptable to CGX together with such other representations and
requests for transfer as may be reasonably required in connection therewith;
provided, however, that if the registration statement filed by the Company
pursuant to Section 2 hereof does not become effective within sixty (60) days of
its filing for any reason other than the fault of the Holder, the Company shall
provide, to
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the extent practicable, opinions of counsel as may be reasonably required in
connection with any such transfer of the Registrable Securities.
Section 14. RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this
Agreement shall apply, to the full extent set forth herein, with respect to the
Registrable Securities, to any and all shares of equity capital of the Company
or any successor or assign of the Company (whether by merger, consolidation,
sale of assets, or otherwise) which may be issued in respect of, in exchange
for, or in substitution of the Registrable Securities, in each case as the
amounts of such securities outstanding are appropriately adjusted for any equity
dividends, splits, reverse splits, combinations, recapitalizations, and the like
occurring after the date of this Agreement.
Section 15. OPINIONS. When any legal opinion is required to be delivered
hereunder, such opinion may contain such qualifications as may be customary or
otherwise appropriate for legal opinions in similar circumstances.
Section 16. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO COMPANY, TO: Consolidated Graphics, Inc.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxx,
Chief Executive Officer
WITH A COPY TO: R. Xxxxx Xxxxxx, Xx.
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
IF TO HOLDER: XxXxx Communications, Inc.
P. O. Box 648
000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-000
WITH A COPY TO: Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx, PLC
P. O. Box 2765
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
AND TO: Xxxxxxx X. Xxxxxxx, Xx.
00000 X. Xxxxxx
00
Xxxxxxxxxx, XX 00000
IF TO ANY PERSON OTHER THAN HOLDER:
to the address of such Person on the records of the transfer agent of the
Company as of the date prior to the date of any notice by the Company or
to such other address as any party may furnish to the others in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt, and that failure to copy legal counsel shall
not invalidate notices otherwise properly given.
Section 17. APPLICABLE LAW. This Agreement and all rights and obligations
hereunder, including matters of construction, validity and performance, shall be
governed by the laws of the State of Texas, without giving effect to the
principles of conflicts of laws thereof.
Section 18. AMENDMENT AND WAIVER. This Agreement may be amended, and the
provisions hereof may be waived, only by a written instrument signed by the
Holder and the Company. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
Section 19. REMEDY FOR BREACH OF CONTRACT. The parties agree that if there
is any breach or asserted breach of the terms, covenants, or conditions of this
Agreement, the remedy of the parties hereto shall be at law and in equity and
injunctive relief shall lie for the enforcement of or relief from any provisions
of this Agreement. If any remedy or relief is sought and obtained by any party
against one of the other parties pursuant to this Section 19, the other party
shall, in addition to the remedy of relief so obtained, be liable to the party
seeking such remedy or relief for the reasonable expenses incurred by such party
in successfully obtaining such remedy or relief, including the reasonable fees
and expenses of such party's counsel.
Section 20. SEVERABILITY. It is a desire and intent of the parties that
the terms, provisions, covenants, and remedies contained in this Agreement shall
be enforceable to the fullest extent permitted by law. If any such term,
provision, covenant, or remedy of this Agreement or the application thereof to
any Person or circumstances shall, to any extent, be construed to be invalid or
unenforceable, in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement, or the application thereof to any Person
or circumstances other than those to which they have been held invalid or
unenforceable, shall remain in full force and effect.
Section 21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
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Section 22. HEADINGS. The section and paragraph headings have been
inserted for purposes of convenience of reference only and shall not be used for
interpretive purposes.
Section 23. BINDING EFFECT. Unless otherwise provided herein, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives,
successors, and assigns, and is not intended to confer upon any other Person any
right or remedies hereunder; provided, however, that Holder may not make any
transfer or assignment of any rights under this Agreement without the prior
written consent of the Company.
Section 24. ENTIRE AGREEMENT. This Agreement, together with the other
agreements referenced herein, constitutes the entire agreement and supersedes
all prior agreements, understandings, both written and oral, among the parties
with respect to the subject matter hereof.
Section 25. INFORMATION. So long as the Holder owns Registrable
Securities, the Holder agrees to use commercially reasonable efforts to deliver
to the Company, upon request, such information about the Holder and the Holder's
holdings of Registrable Securities as the Company may reasonably request as is
necessary to permit the Company to prepare and file its annual report on Form
10-K and its proxy statements under the Exchange Act and any filings under the
Securities Act. The Holder further agrees to report to the Company any sale or
disposition of any kind relating to the Holder's Registrable Securities.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CONSOLIDATED GRAPHICS, INC.
By:/s/G. XXXXXXXXXXX XXXXXXXX
G. Xxxxxxxxxxx Xxxxxxxx
Executive Vice President -
Mergers and Acquisitions
XxXXX COMMUNICATIONS, INC.
By:/s/XXXXXXX X. XXXXXXX, XX.
Xxxxxxx X. Xxxxxxx, Xx.
Chairman
By:/s/XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
