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EXHIBIT 10.(v)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT ("Agreement") is made
and entered into this 10th day of March, 1999, by and between Xxxxxx
Automotive Group, Inc., a Louisiana Corporation (the "Company"), and Xxx
Xxxxxx, a resident of the State of Texas ("Xxxxxx").
WITNESSETH:
WHEREAS, Xxxxxx, together with his wife and trusts established for the
benefit of his children (the "Xxxxxx Group"), own all of the outstanding shares
of capital stock of U.S. Parts Corporation, a Texas corporation ("U.S. Parts");
and
WHEREAS, U.S. Parts and the Company have entered into that certain Asset
Purchase Agreement (the "Purchase Agreement") dated as of February 26, 1999,
whereby the Company purchased substantially all of the assets of U.S. Parts in
exchange for $8,000,000 and 600,000 shares of the Company's common stock, par
value $0.01 per share, (the "Common Stock") and Xxxxxx and the Company have
entered into a Stock Option Agreement dated the 10th of March, 1999 providing
for the grant to Xxxxxx of an option to purchase 300,000 shares of Common
Stock (the "Stock Option Agreement"); and
WHEREAS, as a condition of the Purchase Agreement, the Company has
agreed to enter into this Purchase Agreement with Xxxxxx, providing Xxxxxx and
members of his family with certain registration rights on the Common Stock to
be received by them as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
and on the terms and conditions herein set forth, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Definitions. The following terms, which are capitalized in this
Agreement, shall have the meanings set forth below for the purpose of this
Agreement:
Business Day means any day on which the New York Stock
Exchange is open for trading.
Eligible Securities means all or any portion of the Common
Stock issued pursuant to the Purchase
Agreement, all or any portion of the
Common Stock acquired by Xxxxxx upon
exercise of the option under the Stock
Option Agreement and any Common Stock
issued in respect of any such shares upon
any stock split, stock dividend,
recapitalization or other similar event.
As to any proposed offer or sale of
Eligible Securities, such securities
shall cease to be Eligible Securities
with respect to such proposed offer or
sale when: (i) a registration statement
with respect to the sale of such
securities shall have become effective
under the Securities Act of 1933, as
amended (the "Securities Act"), and such
securities shall have been disposed of in
accordance with such registration
statement; (ii) such securities are
permitted to be distributed pursuant to
Rule 144(k) (or any successor provision
to such Rule) under the Securities Act to
be confirmed in a written opinion of
counsel to the Company; or (iii) such
securities shall have been otherwise
transferred pursuant
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to an applicable exemption under the
Securities Act, and such securities shall
be freely transferable to the public
without registration under the Securities
Act.
Registration Expenses means all expenses incident to the
Company's performance of or compliance
with the registration requirements set
forth in this Agreement including, without
limitation, the following: (i) the fees,
disbursements and expenses of the
Company's counsel(s), accountants and
experts in connection with the
registration of Eligible Securities to be
disposed of under the Securities Act; (ii)
all expenses in connection with the
preparation, printing and filing of the
registration. statement, any preliminary
prospectus or final prospectus, any other
offering document and amendments and
supplements thereto and the mailing and
delivering of copies thereof to the
underwriters and dealers; (iii) the cost
of printing or producing any agreement(s)
among underwriters, underwriting
agreement(s) and blue sky or legal
investment memoranda, any selling
agreements and any other documents in
connection with the offering, sale or
delivery of Eligible Securities to be
disposed of, (iv) Securities and Exchange
Commission (the "Commission") or blue sky
registration fees attributable to Eligible
Securities; (v) all expenses in connection
with the qualification of Eligible
Securities to be disposed of for offering
and sale under state securities laws,
including the fees and disbursements of
counsel for the underwriters in connection
with such qualification and in connection
with any blue sky and legal investment
surveys; (v) the filing fees incident to
securing any required review by the
National Association of Securities
Dealers, Inc. of the terms of the sale of
Eligible Securities to be disposed of; and
(vi) fees and expenses incurred in
connection with the listing of Eligible
Securities on each securities exchange on
which securities of the same class are
then Listed; provided, however, that
Registration Expenses with respect to any
registration pursuant to this Agreement
shall not include underwriting discounts
or commissions attributable to Eligible
Securities, transfer taxes applicable to
Eligible Securities or any legal fees or
costs incurred by Xxxxxx in connection
with the registration of Eligible
Securities pursuant to this Agreement
(other than legal fees or costs incurred
at the request of the Company).
1.2 Other Defined Terms. Capitalized terms used herein and not
otherwise defined in this Agreement shall have the meanings assigned to them in
the Purchase Agreement being entered into simultaneously herewith.
ARTICLE 2
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 Registration Rights. The registration rights granted under this
Agreement to holders of Eligible Securities shall become effective two (2)
years from the date of this Agreement. In addition, the registration rights
under this Agreement shall remain effective only so long as holders of Eligible
Securities own in the aggregate of at least twenty (20)% of the Common Stock
being issued pursuant to the Purchase Agreement.
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ARTICLE 3
REGISTRATION REQUEST
3.1 Demand Registration. Subject to Section 3.2 below, upon written
notice from a holder of Eligible Securities requesting that the Company effect
a registration under the Securities Act of all or a portion of the Eligible
Securities held by such holder ("Notice"), which notice shall specify the
number of Eligible Securities intended to be sold and state the intended method
or methods of disposition of such Eligible Securities, the Company will use all
reasonable efforts to effect (at the earliest possible date) the registration
under the Securities Act of such Eligible Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request.
3.2 Registration Provisions. The registration rights granted under
Sections 3.1 are subject to the following provisions:
(a) if the Company shall have previously effected and maintained
effective for at least six months (or such lesser period as shall have been
necessary for the sale of all of the securities proposed to be sold in
connection therewith) a registration with respect to Eligible Securities
pursuant to Article 4 hereof, the Company shall not be required to file a
registration pursuant to this Article 3 until a period of one hundred eighty
(180) days shall have elapsed from the earlier of six months from the effective
date of the most recent previous registration or the sale of all of the
Eligible Securities covered by such registration;
(b) if, upon receipt of a registration request pursuant to this
Article 3, the Company is advised in writing (with a copy to the holders of
Eligible Securities) by a nationally recognized independent investment banking
firm selected by the Company to act as lead underwriter in connection with a
public offering of securities by the Company that, in such firm's opinion, a
registration at the time and on the terms requested would materially adversely
affect another public offering of securities by the Company (other than an
offering in connection with employee benefit and similar plans) (a "Company
Offering") that had been contemplated by the Company prior to the notice by a
holder of Eligible Securities, the Company shall not be required to file a
registration pursuant to this Article 3 until the earliest of (i) 120 days
after the completion of such Company Offering, (ii) the termination of any
"black out" period, if any, required by the underwriters to be applicable to a
holder of Eligible Securities in connection with such Company Offering and
agreed to in writing by such holder, (iii) promptly after abandonment of such
Company Offering;
(c) if, while a registration request is pending pursuant to Article 3,
the Company determines in the good faith judgment of the Board of Directors of
the Company, with the advice of counsel, that the filing of a registration
statement would require the disclosure of non-public material information, the
disclosure of which would have a material adverse effect on the Company or
would otherwise adversely affect a material financing, acquisition,
disposition, merger or other comparable transaction, the Company shall deliver
a certificate to such effect signed by its President or any Vice President to
the holder of Eligible Securities requesting registration and the Company shall
not be required to file a registration pursuant to this Article 3 until the
date upon which such material information is disclosed to the public or ceases
to be material, but in no event shall the filing of a registration statement be
postponed pursuant to this Article 3.2(c) for more than ninety (90) days from
the date of the certificate referenced herein; and
(d) the Company shall not be required to effect more than one
registration pursuant to this Article 3. In order to count as an "effected"
registration, the registration statement with respect thereto shall not have
been withdrawn and shall have remained effective for a period of at least nine
months.
3.3 Selection of Underwriter. The holder of Eligible Securities
requesting registration may select a nationally or regionally recognized,
independent investment banking firm to act as lead underwriter in his request
for registration, provided that the selection of an underwriter shall be
subject to (i) any obligations of the Company pursuant to any underwriting
agreement to which the Company is a party and (ii) approval by the Company,
which approval shall not be unreasonably withheld. If a request for
registration pursuant to this
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Article 3 contemplates an underwritten public offering as one of the methods of
disposition and does not specify an underwriter, the Company shall use
reasonable efforts to obtain an underwriter for such offering; provided,
however, that if the Company is unable to secure an underwriter, the Company
shall notify the holder of Eligible Securities requesting registration of such
unavailability and, if an underwritten public offering is the sole proposed
method of distribution, the request for registration shall be deemed to be
withdrawn, until such time as the holder of Eligible Securities requesting
registration shall present to the Company an underwriter willing to underwrite
the offering, subject to the approval of the Company.
3.4 Registration Expenses. With respect to a registration requested
pursuant to this Article 3 and any registration arising from an exercise of a
Blackout Termination Right (as defined below), the Company shall pay all
Registration Expenses.
ARTICLE 4
INCIDENTAL REGISTRATION
4.1 Notice and Registration. If the Company at any time proposes to
register any of its equity securities under the Securities Act (other than by a
registration on Form X-0, Xxxx X-0 or any successor or similar form, or in
connection with a tender offer, merger, or other acquisition, and other than
pursuant to Section 3.1), whether or not for sale for its own account (the
"Other Securities"), it will each such time give prompt written notice to the
holders of Eligible Securities of its intention to do so and of the Xxxxxx
Group's rights under this Article 4.1. Upon the written request of any holder
of Eligible Securities made within 30 days after the date of any such notice
given in accordance with Article 5 hereof, the Company will use its best
efforts to effect the registration under the Securities Act of all Eligible
Securities which the Company has been so requested to register by a holder
thereof, to the extent requisite to permit the disposition of the Eligible
Securities so to be registered, provided that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay registration of the Other Securities, the Company may, at its election,
give written notice of such determination to holders of Eligible Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Eligible Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
holders of Eligible Securities to request that such registration be effected as
a registration under Article 3, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Eligible
Securities for the same period as the delay in registering such Other
Securities.
4.2 If (i) a registration pursuant to this Article 4 involves an
underwritten offering of the securities being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized national or
regional standing under underwriting terms appropriate for such a transaction,
and (ii) the managing underwriter of such underwritten offering shall inform
the Company and the holders of Eligible Securities requesting such registration
by letter of its good faith belief that the number of securities requested to
be included in such registration exceeds the number which can be sold in (or
during the time of) such offering or that the inclusion would adversely affect
the marketing or the selling price of the securities to be sold by the Company
therein, if applicable, then the Company may include all securities proposed by
the Company to be sold for its own account and may decrease the number of
Eligible Securities and other securities of the Company so proposed to be sold
and so requested to be included in such registration (pro rata on the basis of
the percentage of the securities of the Company sought to be registered that
are held by holders of Eligible Securities and holders of Other Securities) to
the extent necessary to reduce the number of securities to be included in the
registration to the level recommended by the managing underwriter.
Notwithstanding the foregoing, if the registration referred to herein involves
an underwritten offering of securities being registered for sale by holders of
Other Securities pursuant to the exercise by such holders of demand
registration rights (the "Demand Securities"), the Company will include in such
registration the Demand Securities proposed to be sold and may decrease the
number of Eligible Securities proposed to be sold and any Other Securities
proposed to be sold pursuant to
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the exercise of "incidental" or "piggyback" registration rights (pro rata on
the basis of the percentage of the securities sought to be registered that are
held by holders of Eligible Securities and holders exercising "incidental" or
"piggyback" registration rights) to the extent necessary to reduce the number
of securities to be included in the registration to the level recommended by
the managing underwriter. In such case, no securities shall be offered for sale
by the Company.
4.3 No registration of Eligible Securities effected under this Article
4 shall relieve the Company of its obligation (if any) to effect registrations
of Eligible Securities pursuant to Article 3.
4.4 Registration Expenses. The Company (as between the Company and
holders of Eligible Securities) shall be responsible for the payment of all
Registration Expenses incurred in connection with any registration pursuant to
this Article 4.
ARTICLE 5
REGISTRATION PROCEDURES
5.1 If and whenever the Company is required to effect the registration
of any Eligible Securities under the Securities Act as provided in Article 3 or
4, the Company will as promptly as is practicable:
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to become and remain effective for a period
of nine months, provided that the Company may discontinue any registration of
its securities which are not Eligible Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Eligible Securities until the earlier of such time as
all of such Eligible Securities have been disposed of in accordance with the
intended methods of disposition set forth in such registration statement, or
the expiration of nine months after such Registration Statement becomes
effective (the "Effective Period"), unless such Registration Statement was
filed in reliance upon Rule 415(a), as promulgated by the Commission under the
Securities Act, in connection with a continuous or delayed offering of the
Eligible Securities, in which case the Effective Period shall expire on the
second annual anniversary of the effective date of such Registration Statement.
(c) furnish to holders and to any underwriter of such Eligible
Securities (1) such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case including all
exhibits), (2) such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any summary
prospectus) in conformity with the requirements of the Securities Act, (3) such
documents incorporated by reference in such registration statement or
prospectus, and (4) such other documents as any such holder or such underwriter
may reasonably request;
(d) use all reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as holders or any underwriter of such
Eligible Securities shall reasonably request, and do any and all other acts and
things which may be reasonably requested by such holders or any underwriter to
consummate the disposition in such jurisdictions of the Eligible Securities
covered by such registration statement, except the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to subject
itself to taxation in any jurisdiction where it is not then subject to
taxation, or to consent to general service of process in any jurisdiction where
it is not then subject to service of process;
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(e) use all reasonable efforts to list the Eligible Securities on each
national securities exchange on which the Common Stock is then listed, if the
listing of such securities is then permitted under the rules of such exchange;
(f) furnish to holders of Eligible Securities included in such
registration statement, an opinion of counsel for the Company addressed to each
such holder, dated the date of the closing under the underwriting agreement,
and (ii) use all reasonable efforts to furnish to each such holder a "comfort
letter" signed by the independent public accountants who have certified the
Company's financial statements included in such registration statement,
addressed to each such holder, each such document covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such 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 underwriters in underwritten public offerings of securities and such other
matters as such holders may reasonably request; and
(g) immediately notify holders of Eligible Securities included in such
registration statement at any time when a prospectus relating to a registration
pursuant to Article 3 or 4 hereof is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
at the request of such holders prepare and furnish to such holders as many
copies of a supplement to or an amendment of such prospectus as such holders
reasonably request so that, as thereafter delivered to such holders, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The Company may require holders of Eligible Securities included in
such registration statement to furnish the Company such information regarding
each such holder and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
or by the Commission in connection with any registration.
Holders of such Eligible Securities agree that upon receipt of any
notice from the Company of the happening of any event of the kind described in
subdivision (g) of this Article 5.1, such holder will forthwith discontinue
such holder's disposition of Shares pursuant to the registration statement
relating to such Eligible Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by subdivision (g) of
this Section 5.1 and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies, then in such holder's possession, of the prospectus relating to such
Shares.
5.2 (a) If requested by the underwriters for any underwritten offering
of any Eligible Securities pursuant to a registration requested under Article
3, 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, the holders of such Eligible Securities and the
underwriters and to contain such representations and warranties by the Company
and such other terms as are generally included in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Article 7 and the holders of such Eligible Securities will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable requests of the Company regarding the
form thereof, provided that nothing herein contained shall diminish the
foregoing obligations of the Company. The holders of such Eligible Securities,
if necessary, shall be a party 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 their benefit, 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 the
holders of such Eligible
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Securities. The holders of such Eligible 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 typical in an
offering of that type, including those regarding such holders, their shares and
their intended method of distribution, any other information supplied by such
holder for use in the registration statement and any other representation
required by law.
(b) If the Company at any time proposes to register any of its
securities under the Securities Act as contemplated by Article 4 and such
securities are to be distributed by or through one or more underwriters, the
Company will, if requested by a holder of Eligible Securities as provided in
Article 4 and subject to the provisions of Article 5, arrange for such
underwriters to include all the shares to be offered and sold by such holder
among the securities to be distributed by such underwriters. Holders whose
Eligible Securities are to be distributed by such underwriters shall be a party
to the underwriting agreement between the Company and such underwriters and
may, at such holder's 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 holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holder. Holders of such
Eligible 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 typical in an offering of this type,
including those regarding such holders, their Eligible Securities and their
intended method of distribution and any other representation required by law.
5.3 Blackout Periods. (a) At any time when a registration statement
effected pursuant to Article 3 relating to Eligible Securities is effective,
upon written notice from the Company to holders of such Eligible Securities
that the Company determines in the good faith judgment of the Board of
Directors of the Company, with the advice of counsel, that such holders' sale
of Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would
have a material adverse effect on the Company (an "Information Blackout"), such
holders shall suspend sales of Eligible Securities pursuant to such
registration statement until the earlier of:
(i) the date upon which such material information is disclosed to the.
public or ceases to be material, and
(ii) such time as the Company notifies such holders that sales
pursuant to such registration statement may be resumed (the number of days from
such suspension of sales by such holders until the day when such sales may be
resumed hereunder is hereinafter called a "Sales Blackout Period").
(b) Any delivery by the Company of notice of an Information Blackout
during the 90 days immediately following effectiveness of any registration
statement effected pursuant to Article 3 hereof shall give the holders of
Eligible Securities included therein the right, by written notice to the
Company within 20 Business Days after the end of such blackout period, to
cancel such registration and obtain one additional registration right under
Article 3 during the twelve month period immediately following such blackout
period (a "Blackout Termination Right").
(c) If there is an Information Blackout and holders of Eligible
Securities do not exercise their cancellation right, if any, pursuant to (b)
above, or, if such cancellation right is not available, the time period set
forth in Article 3 shall be extended for a number of days equal to the number
of days in the Sales Blackout Period.
5.4 Qualification for Rule 144 Sales. The Company will take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any such
holder, the Company will deliver to such holder a written statement as to
whether it has complied with such filing requirements.
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ARTICLE 6
PREPARATION; REASONABLE INVESTIGATION
6.1 Preparation: Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the holders of
Eligible Securities proposed to be included therein and the underwriters, if
any, and their respective counsel and accountants, drafts of such registration
statement for their review and comment prior to filing and such reasonable and
customary access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary.
ARTICLE 7
INDEMNIFICATION AND CONTRIBUTION
7.1 Indemnification and Contribution. (a) In the event of any
registration of any Eligible Securities hereunder, the Company will enter into
customary indemnification arrangements to indemnify and hold harmless, each
holder of Eligible Securities included therein, each underwriter participating
in the offering or sale of such securities, and each person (as defined in the
Securities Act of 1933, as amended), if any, who controls any such holder or
such underwriter within the meaning of the Securities Act, against any losses,
claims, damages, liabilities and expenses, joint or several, to which such
person may be subject under the Securities Act or otherwise insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto, or any document incorporated by reference
therein, or (ii) 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, and the Company will promptly reimburse each such person for
any legal or any other expenses reasonably incurred by such person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expenses arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus
or final prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by holders of Eligible
Securities included therein or such underwriter expressly for use in the
registration statement. Such indemnity shall remain in, full force and effect
regardless of any investigation made by or on behalf of any such person and
shall survive the transfer of such securities. The Company also shall agree to
provide provision for contribution in circumstances where such indemnity is
held unenforceable.
(b) Each holder of Eligible Securities included therein, by virtue of
exercising registration rights hereunder, agrees and undertake to enter into
customary indemnification arrangements to indemnify and hold harmless (in the
same manner and to the same extent as set forth in clause (a) of this Article
7) the Company, each director of the Company, each officer of the Company who
shall sign such registration statement, each person who participates as an
underwriter in the offering or sale of such securities, each person, if any,
who controls the Company or any such underwriter within the meaning of the
Securities Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus or final prospectus included
therein, or any amendment or supplement thereto, but only to the extent that
such statement or omission was made in reliance upon and in conformity with
written information furnished by such holder to the Company expressly for use
in the registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling person and shall survive the transfer
of the registered securities by such holder and the expiration of this
Agreement.
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(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding subdivisions of this Article 7, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under the preceding
subdivisions of this Article 7, except to the extent that the indemnifying
party is prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment defenses may be available to the indemnified party that may
not be available to the indemnifying party or a conflict of interest between
such indemnified party and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, 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 to such claim or
litigation.
ARTICLE 8
MISCELLANEOUS
8.1 Captions. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
8.2 Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
8.3 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Louisiana, without reference
to its rules as to conflicts or choice of laws.
8.4 Modification and Amendment. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
8.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
8.6 Entire Agreement. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
8.7 Assignment. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of the Company
and Xxxxxx. Xxxxxx may assign his rights hereunder to one or more members of
the Xxxxxx Group. In addition, any member of the Xxxxxx Group may assign its
rights to any other person so long as such persons agree to act in concert with
respect to all matters under this Agreement. Any such assignee must agree to be
bound by the terms hereof. The members of the Xxxxxx Group shall act by and
through Xxx Xxxxxx with respect to the actions contemplated by this Agreement
and, in the event of Ali Attayi's death or disability, through such other
member of the Xxxxxx Group as the other members of the Xxxxxx Group may
designate by notice to the Company.
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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8.8 Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery
service or by certified mail, return receipt requested, postage prepaid.
Notices shall be deemed given when actually received, which shall be deemed to
be not later than the next Business Day if sent by overnight courier or after
three (3) Business Days if sent by mail. Notice to Xxxxxx shall be made to the
address specified in the Purchase Agreement, or such other address as
designated, from time to time, by Xxxxxx. Notice to the Company shall be sent
to Xxxxxx Automotive Group, 0000 X. XxxXxxxxx Xxxxx, Xxxxxxxxxx, XX 00000,
Attn: Xx. Xxxxxxx Xxxxxx.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above
written.
ATTEST: XXXXXX AUTOMOTIVE GROUP, INC.
By: By:
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Its: Title:
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(CORPORATE SEAL)
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Witness Xxx Xxxxxx
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Witness
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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