REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of the
11th day of August, 1996 among Xxxxxx & Xxxxx, Inc., a Delaware corporation
("FRI" or the "Company"), Xxxxx X. Xxxxxx ("Xxxxxx") and the Xxxxxx Family
Limited Partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, Xxxxxx is Chairman of the Board of Directors and
Chief Executive Officer of the Company; and
WHEREAS, Xxxxxx has entered into that certain agreement (the
"Option Agreement"), dated the date hereof, pursuant to which Xxxxxxx X. Xxxxx,
XX and the Xxxxx Family Limited Partnership have granted Xxxxxx the option to
purchase up to 1,600,000 shares of Common Stock (as hereinafter defined)
currently owned by such Persons; and
WHEREAS, the Company believes that the execution of the Option
Agreement by Xxxxxx will benefit the Company by providing for continuity of
control by the Company's major stockholders; and
WHEREAS, in order to induce Xxxxxx to enter into the Option
Agreement, FRI has agreed to enter into this Agreement and to grant the Rights
(as hereinafter defined) contained herein to Xxxxxx and the Partnership;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION 1. CERTAIN DEFINITIONS AND TERMS.
The following terms have the meanings indicated:
"Commission" means the Securities and Exchange Commission or
any successor thereof.
"Common Stock" means the common stock, par value $.01 per
share, of FRI.
"Enron/Merrill Agreement" means that certain Registration
Rights Agreement, dated December 7, 1994, as amended, by and among FRI, Xxxxxx &
Xxxxx, Inc., a Louisiana corporation, Enron Finance Corp. and Xxxxxxx Xxxxx
Capital Markets plc.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" means Xxxxxx, the Partnership and any other Person
holding Registrable Shares; provided, that such Person acquired such Registrable
Shares in accordance with Section 7 of this Agreement.
"Option Shares" means the 1,600,000 shares of Common Stock
subject to the Option Agreement, 1,000,000 of which are currently owned of
record by the Xxxxx Family Limited Partnership and 600,000 of which are
currently owned of record by Xxxxxxx X. Xxxxx, XX.
"Permitted Transferee" means (i) Xxxxxx, (ii) Xxxxxx' spouse,
(iii) Xxxxxx' children, (iv) Xxxxxx' estate or the estates of Xxxxxx' spouse or
children, and (v) any trust, partnership, corporation or similar entity
controlled by or for the benefit of the Persons named in clauses (i) through
(iv) hereof, including the Partnership, the Xxxxx Xxxxxx Children's Trust and
the Xxxxxx Xxxxxx Children's Trust.
"Person" means any individual, firm, corporation, trust,
association, partnership, joint venture or other entity.
"Registrable Shares" means the Option Shares.
"Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement.
"Rights" means all rights, remedies, powers, benefits, and
privileges granted to the Holders pursuant to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
SECTION 2. REGISTRATION RIGHTS.
(a) Any Holder or Holders shall hereby have the right to
request, in writing specifying that such request is made pursuant to this
Section 2(a), that FRI file a registration statement under the Securities Act
covering not less than 250,000 Registrable Shares (unless fewer Registrable
Shares are held by the Holders, in which case, covering all such Registrable
Shares). Such request shall set forth the proposed plan of distribution for the
Registrable Shares to be registered. Within thirty days of such request, or, in
the event that Form S-3 under the Securities Act is available to FRI to effect
such registration, within twenty-one days of such request, FRI shall file a
registration statement to register under the Securities Act all Registrable
Shares subject to such request; provided, however, that FRI may defer its
obligations under this Section 2(a) for a period of no more than thirty days
(which thirty days shall be in addition to the 30-day or 21-day period, as
applicable, permitted above) if FRI's Board of Directors adopts a resolution or
obtains written
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advice from FRI outside securities counsel (which counsel shall be a nationally
recognized securities law firm or a law firm acceptable to the Holders) that
filing such a registration statement would require public disclosure by FRI of
any material non-public development; and provided further, that once such
information has been publicly disclosed by FRI, FRI shall promptly proceed to
fulfill its obligations under this Section 2(a).
Notwithstanding the foregoing, in the event FRI reasonably
expects to file, within 60 days of a request made pursuant to this Section 2(a),
a registration statement pertaining to securities for the account of FRI (except
a registration statement on Form S-8 or any successor form thereto) then such
request shall constitute a request made pursuant to Section 2(b) hereof to
include in such registration statement all Registrable Shares subject to such
request and FRI shall not be obligated to file a separate registration statement
for the Registrable Shares subject to such request; provided, that FRI is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and that FRI's estimate of the date
of filing of such registration statement is made in good faith. If FRI has not
filed a registration statement pertaining to securities for the account of FRI
and the Registrable Shares during this 60 day period, then FRI shall promptly
proceed to fulfill its obligations under this Section 2(a).
FRI shall be obligated to effect only two registrations
pursuant to this Section 2(a) with respect to all Holders; provided, however,
that a registration requested pursuant to this Section 2(a) shall not be deemed
to be a "registration" for such purposes, (i) if a registration statement with
respect thereto has not been declared effective by the Commission, (ii) if after
such registration statement has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not the
fault of a holder of Registrable Shares and the Registrable Shares covered
thereby have not been sold, or (iii) if the conditions to closing specified in
the selling agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived by the parties thereto other than
a holder of Registrable Shares.
Distribution by the Holder or Holders of the Registrable
Shares registered pursuant to this Section 2(a) may be made in any lawful
manner, including underwritten public offerings and non-underwritten "at the
market" distributions. If any such offering is to be an underwritten public
offering, the Holder or Holders of such Registrable Shares shall have the right
to select the managing underwriter or underwriters, subject to the approval of
FRI, which approval shall not be unreasonably withheld.
The Holders shall not make a request to FRI to effect any
registration pursuant to this Section 2(a) during (i) the 180-day period
beginning on the effective date of the first registration of Registrable Shares
made pursuant to this Section 2(a), (ii) the 90-day period beginning on the
effective date of any registration of Registrable Shares made pursuant to
Section 2(b) of this Agreement and (iii) the 14-day period prior to, and during
the 90-day period beginning on, the effective date of a registration statement
filed pursuant to Section 2(a) of the Enron/Merrill Agreement.
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Whenever FRI shall effect a registration pursuant to this
Section 2(a), securities that may be included among the securities covered by
such registration include (i) securities subject to registration rights granted
by the Company or (ii) such other securities as the Company may desire to
include.
(b) If at any time FRI proposes to register any of its Common
Stock under the Securities Act (other than registrations on Forms S-4 or S-8 or
any successor forms thereto or registrations of securities in connection with a
Rule 145 transaction), whether of its own accord or at the request of any holder
or holders of its securities, it shall each such time promptly give written
notice to all Holders of its intention to do so.
Upon the written request of a Holder or Holders delivered to
FRI within five business days after receipt of any such notice, FRI shall use
its best efforts (subject to the provisions of this Section 2(b)) to cause all
Registrable Shares, the Holders of which shall have so requested registration
thereof, to be registered under the Securities Act, all to the extent requisite
to permit the sale or other disposition by the Holder or Holders of such
Registrable Shares; provided, however, FRI may elect not to file a registration
statement pursuant to this Section 2(b) or may withdraw any registration
statement filed pursuant to this Section 2(b) at any time prior to the effective
date thereof.
If the managing underwriter for the respective offering
advises that marketing factors require the inclusion in such registration of
some or all of the Registrable Shares sought to be registered by the Holders to
be limited or that the number of securities to be registered at the insistence
of FRI and any other selling shareholders plus the number of Registrable Shares
sought to be registered by the Holders should be limited due to marketing
factors, the number of Registrable Shares sought to be registered by each
Holder, FRI and such other selling shareholders shall be reduced pro rata, based
on the number of securities sought to be registered by each such Holder, FRI or
such other selling shareholder, to the number recommended by the managing
underwriter, provided, that in the event such registration is initiated by FRI,
the number of shares offered by FRI shall not be reduced.
(c) If and whenever FRI is required by the provisions of this
Section 2 to effect the registration of any Registrable Shares under the
Securities Act, FRI shall, as expeditiously as possible,
(1) cooperate with any underwriters for, and the
Holders of, such Registrable Shares, and shall enter into a usual and
customary underwriting agreement with respect thereto and take all such
other reasonable actions as are necessary or advisable to permit,
expedite and facilitate the disposition of such Registrable Shares in
the manner contemplated by the related registration statement,
including without limitation, the inclusion in such registration
statement of any information relating to FRI or its subsidiaries which
such holders or underwriters deem reasonably necessary to facilitate
such disposition, in each case to the same extent as if all the
securities then being offered were for the account of FRI,
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and FRI shall provide to any Holder of such Registrable Shares, any
underwriter participating in any distribution thereof pursuant to a
registration statement, and any attorney, accountant or other agent
retained by any Holder or underwriter, reasonable access to appropriate
FRI officers and employees to answer questions and to supply
information reasonably requested by any such Holder, underwriter,
attorney, accountant or agent in connection with such registration
statement; provided, however, that each such party shall be required to
maintain in confidence and not disclose to any other person any
information or records reasonably designated by FRI in writing as being
confidential, until such time as (A) such information becomes a matter
of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to the subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such persons shall have given FRI prompt prior
written notice of such requirement), or (C) such information is
required to be set forth in such registration statement or the
prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order
that such registration statement, prospectus, amendment or supplement,
as the case may be, does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(2) furnish or cause to be furnished to each Holder
of the Registrable Shares covered by such registration statement, on
the date that such Registrable Shares are to be delivered to the
underwriters for sale pursuant to such registration or, if such
Registrable Shares are not being sold through underwriters, on the date
the registration statement with respect to such Registrable Shares
becomes effective (i) an opinion, dated such date, of the outside
counsel representing FRI for the purposes of such registration,
addressed to the underwriters, if any, and to the Holders, stating that
such registration statement has become effective under the Securities
Act and that (A) to the knowledge of such counsel, no stop order
suspending the effectiveness of such registration statement has been
instituted or is pending or contemplated under the Securities Act; and
(B) the registration statement, the related prospectus, and each
amendment or supplement thereto, including all documents incorporated
by reference therein, comply as to form in all material respects with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements or other financial or
statistical or reserve data contained or incorporated by reference
therein); and such counsel shall state in customary form that no facts
have come to the attention of such counsel that caused such counsel to
believe (with customary qualifications) that either the registration
statement or the prospectus, or any amendment or supplement thereto,
including all documents incorporated by reference therein, in light of
the circumstances under which they were made, contains any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no belief as to
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financial statements or other financial or statistical or reserve data
contained or incorporated by reference therein or as to any information
provided by the Holders or any underwriter for inclusion therein); and
(ii) a letter, dated such date, from the independent certified public
accountants of FRI, addressed to the underwriters, if any, and to the
Holders, stating that they are independent certified public accountants
within the meaning of the Securities Act and that in the opinion of
such accountants, the financial statements and other financial data of
FRI included in the registration statement or the prospectus, or any
amendment or supplement thereto, including all documents incorporated
by reference therein, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act. Such
letter from the independent certified public accountants shall
additionally cover such other customary financial matters (including
information as to the period ending not more than five business days
prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters, if
any, or the Holders may reasonably request;
(3) prepare and file with the Commission a
registration statement with respect to such Registrable Shares and use
its best efforts to cause such registration statement to become and
remain effective for a period of not more than 180 days (or in the
event of a firm underwritten offering such longer period as may be
customary), and 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 during such period and to comply with the
provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such registration statement;
provided that no such registration statement or amendment thereto shall
be filed by FRI until the Holders of the Registrable Shares included
therein and their counsel shall have had a reasonable opportunity to
review the same, to exercise their rights under clause (1) above with
respect thereto and to approve or disapprove any portion of such
registration statement describing or referring to such Holders;
provided, further, that if, after a registration statement becomes
effective, the Company advises the Holders that the Company considers
it appropriate for the registration statement to be amended, the
Holders shall suspend any further sales of their registered shares
until the Company advises them that the registration statement has been
amended. The 180-day time period referred to herein during which the
registration statement must be kept current after its effective date
shall be extended for an additional number of business days equal to
the number of business days during which the rights to sell shares was
suspended pursuant to the preceding sentence;
(4) furnish to each Holder and to each underwriter,
if any, such numbers of copies of a summary prospectus or other
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents, as such
Holder may reasonably request in order to facilitate the public sale or
other disposition of such Holder's Registrable Shares;
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(5) use its best efforts to register or qualify the
Registrable Shares covered by such registration statement under the
state securities of blue sky laws of such United States jurisdictions
as each Holder shall request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder to
consummate the public sale or other disposition in such United States
jurisdictions of the Registrable Shares owned by such Holder, except
that FRI shall not for any such purpose be required to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not
so qualified or to file therein any general consent to service;
(6) in the event of the issuance of any stop order
suspending the effectiveness of any registration statement or of any
order suspending or preventing the use of any prospectus or suspending
the qualification of such Registrable Shares for sales in any
jurisdiction, use its reasonable efforts promptly to obtain its
withdrawal;
(7) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission in connection with
such registration and related transactions, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, beginning with
the first fiscal quarter beginning after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(8) list such securities on any securities exchange
or consolidated reporting system on which the Common Stock of FRI is
then listed, if the listing of such securities is then permitted under
the rules of such exchange or consolidated reporting system; and
(9) furnish unlegended certificates representing
ownership of the Registrable Shares being sold in such denominations as
shall be requested by each Holder or the managing underwriter, provided
such request is made at least two business days prior to the closing of
the sale of such Registrable Shares.
(d) In connection with any offering involving an underwriting
of shares being issued by FRI, FRI shall not be required to include any of the
Holders' Registrable Shares in such underwriting pursuant to Section 2(b) unless
the Holders accept the terms of the underwriting as agreed upon between FRI and
the underwriters; provided, however, that the only representations and
warranties any Holder shall be required to make in connection therewith shall be
with respect to such Holder's ownership of the Registrable Shares to be sold by
it and its ability to convey title thereto free and clear of all liens,
encumbrances or adverse claims and such other customary representations and
warranties reasonably requested by the underwriters; and provided further, that
the only indemnity any Holder shall be required to make in connection therewith
shall be to the effect of Sections 4(b) and 4(c) hereof.
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(e) The Registrable Shares proposed to be registered under any
registration statement under Section 2(b) hereof shall be offered for sale at
the same public offering price as the shares of Common Stock offered for sale by
FRI or any other selling shareholder covered thereby.
SECTION 3. EXPENSES OF REGISTRATION.
All expenses incurred in connection with the registration of
Registrable Shares pursuant to this Agreement, including without limitation (i)
the Commission registration fee, (ii) the fee payable to the National
Association of Securities Dealers, Inc., (iii) all state registration and
qualification fees, (iv) all printing, engineering and accounting fees, (v) all
fees and disbursements of counsel for FRI and (vi) all fees and disbursements of
one law firm selected by the Holders to represent all the Holders, shall be
borne by FRI; provided, however, that FRI shall not be required to pay, and the
Holders shall pay any underwriter discounts, commissions and other underwriter
compensation, to the extent such fees, discounts, commissions and compensation,
relate to the Registrable Shares.
SECTION 4. INDEMNIFICATION.
(a) In the event of any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, FRI shall indemnify and
hold harmless the Holder of such Registrable Shares, such Holder's directors,
officers and partners, if any, and each other Person, if any, who controls such
Holder within the meaning of the Securities Act (a "Controlling Person"),
against any losses, claims, damages or liabilities, joint or several, to which
such Holder or any such director, officer, partner or Controlling Person may
become subject under the Securities Act or other statute or at common law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such Registrable Shares were registered under the
Securities Act, or in any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse such Holder or such
director, officer, partner or Controlling Person for any legal or any other
expenses reasonably incurred by such Holder, director, officer, partner or
Controlling Person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that FRI shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any alleged untrue statement
or alleged omission made in such registration statement, preliminary prospectus,
prospectus, or amendment or supplement in reliance upon and in conformity with
written information furnished to FRI through an instrument duly executed or
provided by such Holder or an underwriter specifically for use therein. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Holder, director, officer, partner or Controlling
Person, and shall survive the transfer of such Registrable Shares by such
Holder.
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(b) It shall be a condition to FRI's obligation to register
the Registrable Shares of any Holder that such Holder shall enter into an
agreement to indemnify and hold harmless FRI, its directors and officers and
each other Person, if any, who controls FRI against any losses, claims, damages
or liabilities, joint or several, to which FRI or any such director or officer
or any such Person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any alleged
untrue statement or omission of any material fact contained, on the effective
date thereof, in any registration statement under which such Holder's
Registrable Shares were registered under the Securities Act, or in any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or (ii) any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
alleged untrue statement or omission was contained in written information
furnished to FRI through an instrument duly executed or provided by such Holder
specifically for use therein, and to reimburse FRI or such director, officer or
other Person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Indemnification similar to that specified in (i) and (ii)
in paragraphs 4(a) and 4(b) above shall be given by FRI and each Holder (with
such modifications as shall be appropriate) to any underwriter with respect to
any required registration or other qualification of any Registrable Shares
registered under this Agreement under any federal or state law or regulation of
governmental authority. The indemnity and expense reimbursements obligations of
FRI and the Holders under (i) and (ii) in paragraphs 4(a) and 4(b) above shall
be in addition to any liability FRI and the Holders may otherwise have.
(d) Each Person (an "Indemnitor") who under the preceding
provisions of this Section 4 agrees to indemnify another Person (an
"Indemnitee") shall have the rights, subject to the provisions hereto, to
designate counsel (which counsel shall be a nationally recognized securities law
firm or a law firm acceptable to the Holders) or to defend any case or
proceeding against the Indemnitee arising in respect of any claim of liability
for which such indemnification may be claimed, to the end that duplication of
legal expense may be minimized; provided that, if the Indemnitee notifies the
Indemnitor that the former has been advised by its counsel that any single
counsel in such case or proceeding would have a conflict of interest in
representing both the Indemnitor and the Indemnitee, the Indemnitee may
designate one counsel of its own in such case or proceeding and, to the extent
so provided above in this Section 4, shall be entitled to be reimbursed for its
legal expenses reasonably incurred in connection with defending itself in such
case or proceeding.
(e) The Indemnitee shall give notice to the Indemnitor
promptly after such Indemnitee has actual knowledge of any claim as to which
indemnity may be sought, provided that the failure of any Indemnitee to give
notice as provided herein shall not relieve the Indemnitor of its obligations
hereunder except to the extent that the Indemnitor's defense of such claim is
prejudiced thereby.
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SECTION 5. CONTRIBUTION.
(a) In the event the indemnity provisions provided for in
Section 4 of this Agreement are for any reason held to be unenforceable by the
indemnified parties, FRI, the Holders and the underwriters, if any, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity provisions incurred by FRI, the
Holders and the underwriters in proportion to the relative fault of each such
party in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages and expenses. Relative fault 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 one of the parties and such
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Notwithstanding the
foregoing, no Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total price at which the Registrable
Shares sold by it exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(b) Notwithstanding the foregoing provisions of this Section
5, no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
underwriter, and each director of FRI, each officer of FRI who signed such
registration statement and each person, if any, who controls FRI or any Holder
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as FRI or such Holder, as the case may be.
SECTION 6. SALES PURSUANT TO RULE 144.
Upon written request, FRI shall deliver to any Holder a
written statement as to whether it has complied with all rules and regulations
of the Commission applicable in connection with the use of Rule 144 (or any
successor thereto), including the timely filing of all reports required to be
filed by FRI with the Commission. Upon receipt of an opinion of counsel
satisfactory to FRI, FRI shall cause any restrictive legends to be removed and
any transfer restrictions to be rescinded with respect to any sale of
Registrable Shares which is exempt from registration under the Securities Act
pursuant to Rule 144.
SECTION 7. TRANSFER OF REGISTRATION RIGHTS.
The Rights of Holders under this Agreement may be assigned or
transferred upon written notice to the Company to any Permitted Transferee in
connection with the transfer of all or a portion of the Registrable Shares. In
the event that the Rights under this Agreement are assigned or transferred by a
Holder to a Permitted Transferee in connection with the transfer of a portion of
the Registrable Shares, any registration rights exercised by such Holder or any
such Permitted
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Transferee must be exercised collectively as one Holder and, for purposes of
this Agreement, including without limitation, with respect to providing notices
and payment of any expenses, such Holder and such Permitted Transferee will be
treated as one Holder. Any transferee hereunder must acknowledge in writing its
acceptance of all terms, conditions and obligations of this Agreement.
SECTION 8. TERMINATION.
FRI shall not be obligated to take any action to effect any
registration, qualification or compliance pursuant to this Agreement, and this
Agreement shall terminate and be of no force and effect (except any obligations
of FRI under Section 6 of this Agreement), with respect to any Holder (and such
Holder only) who may sell all of such Holder's Registrable Shares in reliance
upon Rule 144(k) (or any successor rule) promulgated under the Securities Act.
SECTION 9. REMEDIES.
FRI recognizes that money damages may be inadequate to
compensate the Holders for a breach by FRI of its obligations under this
Agreement, and FRI agrees that in the event of such a breach any of the Holders
may apply for an injunction of specific performance or the granting of such
other equitable remedies as may be awarded by a court of competent jurisdiction
in order to afford the Holders the benefits of this Agreement and that FRI shall
not object to such application, entry of such injunction or granting of such
other equitable remedies on the grounds that money damages shall be sufficient
to compensate the Holders.
SECTION 10. MISCELLANEOUS.
(a) Notices.
(1) All communications under this Agreement shall be
in writing and shall be mailed by first class mail, postage prepaid, or
sent by facsimile,
(i) if to any party hereto at its address or
facsimile number for notices specified beneath its name on the
signature page hereof, or at such other address or facsimile
number as it may have furnished in writing to each other party
hereto;
(ii) if to any other person or entity who is
the registered holder of any Registrable Shares to the address
or facsimile number of such holder as it appears in the stock
ledger of FRI.
(2) Any notice shall be deemed to have been duly given and
received (i) at the time of delivery when delivered by hand, if
personally delivered, (ii) if sent by mail, two business days after
being deposited in the mail, postage prepaid and (iii) when sent by
HOU04:38327.2
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facsimile so long as a duplicate of such notice is deposited in the
mail, first class postage prepaid, on the date such facsimile is sent.
(b) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the permitted successors and assigns of each of
the parties whether so expressed or not.
(c) Amendment and Waiver, etc. This Agreement may be amended,
and the observance of any term of this Agreement may be waived, but only with
the unanimous written consent of FRI and the Holders. No failure or delay on the
part of the Holders in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Holders at law or in equity or otherwise. No waiver of or
consent to any departure by FRI from any provision of this Agreement shall be
effective unless in writing and signed by the Holders.
(d) Duplicate Originals. Two or more duplicate originals of
this Agreement may be signed in counterpart by the parties, each of which shall
be an original but all of which together shall constitute one and the same
instrument.
(e) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive law of Delaware without giving
effect to the principles of conflicts of law thereof.
(g) Entire Agreement. This Agreement constitutes and contains
the entire agreement of the parties and supersedes any and all prior
negotiations, correspondence, undertakings and agreements between the parties
hereto respecting the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
XXXXXX & XXXXX, INC.,
a Delaware corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chairman of the Board
By: /s/ XXXXXXX X. XXXXXXXXX, XX.
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President and
Chief Operating Officer
/s/ XXXXX X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx
XXXXXX FAMILY LIMITED PARTNERSHIP,
a Texas Limited Partnership
c/o Xxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
By: /s/ XXXXX X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx
General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------
Xxxxxx X. Xxxxxx
General Partner
-13-
