REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of March
18, 1998, by and among Consolidated Graphics, Inc., a Texas corporation (the
"Company"), Xxxx X. Xxxxx, Xx., Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx and National HealthCare Corporation
(individually a "Holder" and collectively the "Holders");
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 dated as of
March 18, 1998 (the "Purchase Agreement"), among the Company, Courier Printing
Company, a Tennessee corporation, Courier Acquisition Company, a Tennessee
corporation and the Holders that this Agreement be executed and delivered by the
Company and the Holders;
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 Holders 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 legal
holiday for banks in the State of Texas.
COMMISSION shall mean the Securities and Exchange Commission.
COMMON STOCK shall mean the Company's common stock, par value $0.01 per
share, or any successor class of the Company's common stock.
COMPANY shall mean Consolidated Graphics, Inc.
DEMAND REGISTRATION shall mean the registration pursuant to Section 3
hereof, upon demand of the Holders, with the Commission of the offer and sale of
Registrable Securities under and in accordance with the provisions of the
Securities Act.
EARNOUT STOCK shall mean the shares of Common Stock to be acquired by
the Holders pursuant to Section 1.4 of the Purchase Agreement, together with any
Related Securities issued in connection with any Earnout Stock.
EXCESS DEMAND REGISTRATION shall mean the registration upon demand of
the Excess Requested Shares with the Commission of the offer and sale of the
Excess Requested Shares under and in accordance with the provisions of the
Securities Act.
EXCESS REQUESTED SHARES shall mean Registrable Securities that were
requested to be included in the Demand Registration, but were not so included
pursuant to the terms of this Agreement.
EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as amended.
HOLDER shall mean Xxxx X. Xxxxx, Xx., Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx or National HealthCare
Corporation.
HOLDERS shall mean Xxxx X. Xxxxx, Xx., Xxxxx Xxxxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx and National
HealthCare, Corp. collectively.
INSPECTORS shall mean any Holder of Registrable Securities, any
underwriter participating in any disposition of Registrable Securities pursuant
to a Demand Registration, and any attorney, accountant or other agent retained
by such Holder or underwriter.
LIABILITIES shall mean all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation).
NEW COMMON STOCK shall mean the shares of Common Stock to be acquired by
the Holders pursuant to Section 1.3 of the Purchase Agreement, together with any
Related Securities issued in connection with any New Common Stock.
PERSON shall mean any individual, corporation, partnership, 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.
PIGGYBACK REGISTRATION shall mean the registration of Registrable
Securities pursuant to a registration statement filed by the Company under the
Securities Act as set forth in Section 2 of this Agreement.
PURCHASE AGREEMENT shall mean that certain Agreement and Plan of
Reorganization dated as of March 18, 1998 among the Company, Courier Printing
Company, Courier Acquisition Company and the Holders.
RECORDS shall mean all financial and other records, pertinent corporate
documents and properties of the Company.
REGISTRABLE SECURITIES shall mean the New Common Stock, Earnout Stock
and the Related Securities, until such time as the New Common Stock, the Earnout
Securities and the Related Securities have been (a) distributed to the public
pursuant to a registration statement covering such securities that has been
declared effective under the Securities Act, (b) distributed to the public in
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accordance with the provisions of Rule 144 (or any similar provision then in
force) under the Securities Act, (c) repurchased by the Company, or (d)
qualified for sale under Rule 144(k) (or any similar provision then in force).
REGISTRATION EXPENSES shall mean all expenses incident to the Company's
performance of or compliance with the Demand 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 counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses, messenger and delivery expenses, internal expenses (not 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 (including the expenses of any special audit or interim
review or "cold comfort" letters required by or incident to such performance),
the fees and expenses of any special experts retained by the Company in
connection with such registration (including any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities) and any
out-of-pocket expenses of the Holders of Registrable Securities.
RELATED SECURITIES shall mean any securities issued in exchange for, as
a dividend on or in replacement of, or otherwise issued in respect of (including
securities issued in a stock dividend, split or recombination or pursuant to the
exercise of preemptive rights), the New Common Stock or Earnout Stock,
respectively.
SECURITIES ACT shall mean the Securities Act of 1933, as amended.
Section 2. PIGGY-BACK REGISTRATION. a. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of any other Person of any
class of equity security, including any security convertible into or
exchangeable for any equity security (other than a registration statement on
Forms S-4 or S-8 (or their successor forms) or filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
Shareholders), then the Company shall in each case give written notice of such
proposed filing to each of the Holders of Registrable Securities at least twenty
days before the anticipated filing date, and such notice shall offer such
Holders the opportunity to register such number of Registrable Securities as
each such Holder may request. The Company shall use reasonable diligence to
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Holders of Registrable Securities requested to be
included in the registration for such offering to include such securities in
such offering on the same terms and conditions as any similar securities of the
Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers a written opinion to the
Holders of Registrable Securities that the total amount of securities which they
and the Company and any other Persons intend to include in such offering is
sufficiently large to materially and adversely affect the success of such
offering, then the amount of Registrable Securities to be offered for the
accounts of Holders of Registrable Securities and other Persons who have the
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contractual right to have securities included in the offering shall, to the
extent not inconsistent with the contractual obligations of the Company existing
on the date hereof, be reduced pro rata based on the amount of securities each
has requested to be included in the offering pursuant to such contractual rights
to the extent necessary, in the opinion of such managing underwriter, to reduce
the total amount of securities to be included in such offering to the amount
recommended by such managing underwriter.
b. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not be required to include Registrable Securities in any
registration statement if the proposed registration is (a) a registration of a
stock option or other employee incentive compensation plan or of securities
issued or issuable pursuant to any such plan, (b) a registration of securities
issued or issuable pursuant to a Shareholder reinvestment plan or other similar
plan, (c) a registration of securities issued in exchange for any securities or
any assets of, or in connection with a merger or consolidation with, an
unaffiliated company, or (d) a registration of securities pursuant to a "rights"
or other similar plan designed to protect the Company's Shareholders from a
coercive or other attempt to take control of the Company.
c. The Company may withdraw any registration statement and abandon any
proposed offering initiated by the Company without the consent of any Holder of
Registrable Securities, notwithstanding the request of any such Holder to
participate therein in accordance with this provision, if the Company
determines, in good faith in its sole discretion, that such action is in the
best interests of the Company and its Shareholders (for this purpose, the
interest of the Holders shall not be considered).
Section 3. DEMAND REGISTRATION RIGHTS. a. Subject to the conditions
stated herein, at any time after the 30th day following the closing of the
transaction contemplated in the Purchase Agreement (the "Closing Date"), and on
or before the 300th day following the Closing Date, Holders owning a majority of
the Registrable Securities acting together may make a written request to the
Company for registration with the Commission of the offer and sale of the
Registrable Securities held by the Holders under and in accordance with the
provisions of the Securities Act. Following receipt of such request, the Company
shall, no later than ten (10) Business Days after receipt of such request,
notify the Holders that it will file a registration statement covering the
Registrable Securities for sale by the Holders; PROVIDED, HOWEVER, THAT the
Company may, if necessary, delay the filing of any registration statement
relating to the Demand Registration for such reasonable period of time, not to
exceed 90 days, as is necessary to prepare the financial statements of the
Company for the fiscal period most recently ended prior to such written request.
If a Holder of Registrable Securities shall, within ten (10) days after receipt
of such notice, withdraw such Holder's Registrable Securities from the Demand
Registration, such Holder withdrawing such Registrable Securities from such
Demand Registration shall not have any further rights under this Section 3,
unless no registration statement is filed pursuant to this Demand Registration
right becomes effective under the Securities Act. Notwithstanding anything to
the contrary contained in this Agreement, the Company shall not be required to
include any Earnout Stock or Related Securities issued in connection with any
Earnout Stock in any Demand Registration.
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b. All requests made pursuant to this Section 3 will specify the amount
of Registrable Securities to be registered and will also specify the intended
methods of disposition thereof.
c. The Holders (as a group) of Registrable Securities shall as a group
be entitled to one Demand Registration. Such Demand Registration must become
effective under the Securities Act to count as having occurred with respect to
such Registrable Securities. The Registration Expenses of the Demand
Registration, whether or not it becomes effective, shall be paid as set forth in
Section 11 below.
d. If the Demand Registration is an underwritten offering, the Holders
of a majority of the Registrable Securities to be included in such demand
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 4. COMPANY REGISTRATION. Notwithstanding the provisions of
Section 3, the Company shall not be obligated to effect a registration requested
pursuant to Section 3 if within 30 days after receiving the notice provided by
any Holder under Section 3, the Company notifies all Holders of the Registrable
Securities of its intention to file a registration statement for an underwritten
public offering of Common Stock at least a portion of which shares are to be
issued and/or sold for the account of the Company and within 90 days after
providing such notice, the Company files a registration statement for such
offering. In such case, the Holders shall have all the rights provided herein as
if no such demand registration had been requested, including those in Section 2,
with the latest date by which a request for registration must be made with
respect to any Registrable Security not included in the underwritten public
offering delayed to a date 180 days after the effective date of such
registration statement filed for an offering for the account of the Company that
resulted in the application of this Section 4. If at any time the Company fails
to pursue diligently any such registration statement or offering, the provisions
of the preceding sentence shall not apply, and the Company shall be obligated to
satisfy its obligations under Section 3 promptly following notice to do so from
a Holder. With respect to such Company registration, the Company shall have the
sole authority to select or terminate the employment of underwriters and to make
all decisions in connection with the filing, effectiveness and consummation of
the proposed offering, subject to the express provisions hereof.
Section 5. LIMITATIONS ON OBLIGATIONS OF COMPANY. The obligations of the
Company under Section 3 are subject to each of the following limitations,
conditions and qualifications:
a. The Company shall be entitled to postpone for a reasonable period of
time (not exceeding 60 days) the filing (but not the preparation) of any
registration statement otherwise required to be prepared and filed by it
pursuant hereto if, at the time the Company receives a request for such
registration, the Company is in possession of material non-public information
that would be required to be disclosed in a registration statement, but that has
not been and will otherwise not be disclosed to the public, and the Company
deems disclosure not to be in the best interests of the Company and its
Shareholders (for this purpose, the interest of the Holders shall not be
considered). The Company shall be entitled to postpone the filing of such a
registration statement for an additional period of up to 60 days (not to exceed
in any event an aggregate of 120 days or, if earlier, the date counsel to the
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Company has determined that the Company is otherwise required by law, rule or
regulations to disclose such material non-public information) if it delivers to
the Holders of the Registrable Securities an opinion of counsel to the effect
that there is a reasonable likelihood that the filing of a registration
statement would result in the disclosure of material non-public information that
would be required to be disclosed in a registration statement and would not
otherwise be required to be disclosed by law, rule or regulations during the
duration of such postponement, the disclosure of which at the time of delivery
of such opinion appears not to be in the best interests of the Company and its
Shareholders (for this purpose, the interest of the Holders shall not be
considered).
b. The Company shall be entitled to postpone for a reasonable period of
time (not exceeding 90 days) the distribution of preliminary or final
prospectuses under any registration statement required to be prepared and filed
by it pursuant hereto, if at the time such distribution would otherwise be made,
the Company is engaged in an issuer tender offer within the meaning of Section
13(e) of the Exchange Act for securities of the same class (within the meaning
of the Exchange Act) as the Registrable Securities that are proposed to be
registered, unless the Holders of the Registrable Securities proposed to be
registered can obtain a no-action letter from the staff of the Commission to the
effect that the staff would not recommend enforcement action to the Commission
if offers or sales were made pursuant to a prospectus under such circumstances.
c. The Company shall be entitled to postpone for a reasonable period of
time (not exceeding 90 days) the effectiveness (but not the filing or
preparation) of any registration statement otherwise required to be prepared and
filed by it pursuant hereto if, within ten (10) Business Days after it receives
a request for a registration pursuant hereto, the Company's investment banking
firm determines (and the Company so notifies the Holders of the Registrable
Securities) that in its judgment, such registration and offering would
materially interfere with any financing, acquisition, corporate reorganization
or other material transaction involving the Company that before such request was
made the Board of Directors of the Company had agreed by resolution to pursue.
Section 6. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. To the extent not inconsistent with applicable law, including
insurance codes, each Holder of Registrable Securities that is included in a
registration statement which registers Registrable Securities pursuant to this
Agreement 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 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 7. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of any securities similar
to those being registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days before, and
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during the 90-day period beginning on, the effective date of any registration
statement in which the Holders of Registrable Securities are participating
(except pursuant to such registration statement).
Section 8. COOPERATION BY HOLDERS. The offering of Registrable
Securities by any Holder shall comply in all respects with the applicable terms,
provisions and requirements set forth in this Agreement, and such Holder shall
timely provide the Company with all information and materials required to be
included in a registration statement that (a) relate to the offering, (b) are in
possession of such Holder and (c) relate to such 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 a Holder who 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 a Holder of Registrable Securities which are the
subject of the Demand Registration or an Excess Demand Registration shall fail
to furnish such information and such Demand Registration or Excess Demand
Registration shall not become effective under the Securities Act, such Holder
shall not have a right to request inclusion of such Holder's Registrable
Securities in a future demand registration with respect to Registrable
Securities.
Section 9. REGISTRATION PROCEEDINGS. Whenever any Registrable Securities
are to be registered pursuant to Sections 2 or 3 of this Agreement, the Company
will use reasonable diligence to effect the registration of such Registrable
Securities in accordance with the intended method of disposition thereof as
quickly as practicable. In connection with any Piggyback Registration, Demand
Registration or Excess Demand Registration, the Company will act as
expeditiously as possible to:
a. prepare and file with the Commission a registration statement which
includes the Registrable Securities and use reasonable diligence to cause such
registration statement to become effective; 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 Holders of the
Registrable Securities covered by such registration statement and the
underwriters, if any, draft copies of all such documents proposed to be filed at
least five (5) Business Days prior thereto, which documents will be subject to
the reasonable review of such Holders and underwriters, 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
Holders of a majority of the Registrable Securities covered by such registration
statement or the underwriters with respect to such Registrable Securities, if
any, shall reasonably object, and will notify each Holder of the Registrable
Securities of any stop order issued or threatened by the Commission 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 such amendments and
post-effective amendments to the registration statement as may be necessary to
keep the registration statement effective for a period of 180 days if the
registration is pursuant to Section 2 or until six months past the date hereof
or, if later, 60 days after effectiveness if the registration is pursuant to
Section 3 (or such later date that results by adding the number of days by which
the effectiveness of the registration statement
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is delayed as a result of any postponement permitted under subsections a through
c of Section 5) 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 90-day period referred to in Section 3(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 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; the Company shall not be deemed to have complied
with its obligations hereunder to keep a registration statement effective during
the applicable period if it voluntarily takes any action that would result in
selling Holders of the Registrable Securities being prevented from selling such
Registrable Securities during that period unless such action is required under
applicable law;
c. furnish to any Holder of Registrable Securities included in such
registration statement and the underwriter or underwriters, if any, without
charge, such number of conformed copies of the registration statement and any
post-effective amendment thereto and such number of copies of the prospectus
(including each preliminary prospectus) and any amendments or supplements
thereto, and any documents incorporated by reference therein, as such Holder or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Securities being sold by such 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 each Holder of 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 one counsel
selected by the Holders of a majority of the Registrable Securities covered by
such registration statement copies of all documents proposed to be filed which
documents will be subject to the review of such counsel;
d. notify each Holder of Registrable Securities included in such
registration statement, 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
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 reasonable diligence 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
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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 forty-five 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 order
suspending the effectiveness of the registration statement at the earliest
possible moment;
h. if reasonably requested by the managing underwriter or underwriters
or any 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 such Holder requests
to be included therein, including without limitation, with respect to the number
of Registrable Securities being sold by such 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 each Holder of Registrable Securities covered
by such registration statement;
j. on or before the date on which the registration statement is declared
effective, use reasonable diligence to register or qualify, and cooperate with
the Holders 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 any such 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 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 Holders 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
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names as the managing underwriter or underwriters, if any, or such Holders may
request, subject to the underwriters' obligation to return any certificates
representing securities not sold;
l. use reasonable diligence to cause the Registrable Securities covered
by the registration statement to be registered with or approved by such other
governmental agencies or 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. enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other reasonable actions as the
Holders of a majority of the Registrable Securities being sold or the
underwriters retained by Holders participating in an underwritten public
offering, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
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
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; and
o. use reasonable diligence in connection with any underwritten offering
to obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the managing underwriter or underwriters may
reasonably request.
Each 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 9, will forthwith
discontinue disposition of the Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
subsection d of this Section 9 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, such 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 such Holder's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice. If the Company shall give any such notice, the time periods
mentioned in subsection b of this Section 9 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 subsection d of this Section 9 hereof or
the notice that they may resume use of the prospectus.
Section 10. REFERENCE TO HOLDER IN REGISTRATION STATEMENT. If such
registration statement refers to any Holder by name or otherwise as the holder
of any securities of the Company, then such Holder shall have the right to
require (a) the insertion therein of language, in form and substance
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satisfactory to such Holder, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation of such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (b) if such reference to such 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 such Holder.
Section 11. DEMAND AND PIGGYBACK REGISTRATION EXPENSES. All Registration
Expenses incident to the Company's performance of or compliance with the Demand
Registration, Excess Demand Registration or Piggyback Registration pursuant to
this Agreement, except underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities and any out-of-pocket expenses of the
Holders of the Registrable Securities, will be borne by the Company.
Section 12. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder of Registrable Securities, its officers,
directors, and each Person who controls such Holder (within the meaning of the
Securities Act), and any Agent (as hereinafter defined), 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, 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 based upon information 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 Holders of Registrable Securities or to such other extent
as the Company and such underwriters may agree.
Section 13. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any registration statement in which a Holder of Registrable
Securities is participating, each such Holder will furnish to the Company in
writing such information with respect to the name and address of such Holder and
the amount of Registrable Securities held by such 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 losses, damages and expenses 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 such Holder so furnished in writing by such
Holder specifically for inclusion in any prospectus or registration statement.
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Section 14. 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 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 15. CONTRIBUTION. If the indemnification provided for in
Sections 12 and 13 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities, or
expenses 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 in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities, or
expenses, 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, 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. 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 14, 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 15 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 the immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The obligations of the Company pursuant to
Sections 12, 13, 14 and 15 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 Holders of Registrable Securities under this Agreement, or
create additional obligations of such Holders not set forth herein, except as
otherwise expressly agreed in writing by any such Holders.
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Section 16. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's securities on the
terms of and on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements (which shall be the
Company in the case of an offering of securities by the Company), and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
Section 17. RULE 144. 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 any
Holder of Registrable Securities, make publicly available other nonconfidential
information so long as necessary to permit sales under Rule 144 under the
Securities Act), and it will take such other action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
Section 18. 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 19. 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 20. 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
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WITH A COPY TO:
R. Xxxxx Xxxxxx, Xx.
Xxxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
IF TO THE HOLDERS, TO EACH:
c/o Xxxx X Xxxxx, Xx.
c/o Courier Printing, Inc.
X.X. Xxx 000, 0 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
WITH A COPY TO:
Xxxxxx X. Xxxxxxxx, Esq.
Bass, Xxxxx & Xxxx, PLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
IF TO ANY PERSON OTHER THAN THE HOLDERS:
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 21. 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 22. AMENDMENT AND WAIVER. This Agreement may be amended, and the
provisions hereof may be waived, only by a written instrument signed by (a) the
Holders of a majority of the Registrable Securities and (b) 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 23. 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 23, the
other party shall, in addition to
14
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 24. 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 25. 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.
Section 26. 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 27. 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 permitted assigns, and is not intended to confer upon any other
Person any right or remedies hereunder; PROVIDED, HOWEVER, THAT a transferee of
a Holder, other than as contemplated in (a), (b) or (c) of the definitions of
Registrable Securities in Section 1, shall be deemed to be a Holder for purposes
of obtaining the benefits or enforcing the rights of a Holder.
Section 28. 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 29. INFORMATION. So long as each Holder owns Registrable
Securities, such Holder agrees to deliver to the Company, upon request, such
information about such Holder and such 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, its proxy statements
under the Exchange Act and any filings under the Securities Act. Without
limiting the generality of the foregoing, each Holder agrees to provide the
Company, upon request, with information concerning the number of shares then
held by such Holder that are the subject of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CONSOLIDATED GRAPHICS, INC.
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By: /s/ XXX X. XXXXX
Xxx X. Xxxxx, Chief Executive
Officer
/s/ XXXX X. XXXXX
Xxxx X. Xxxxx, Xx.
/s/ XXXXX XXXXXXXXX
Xxxxx Xxxxxxxxx
/s/ XXXXXX XXXXXXXXX
Xxxxxx Xxxxxxxxx
/s/ XXXXX XXXXXXXX
Xxxxx Xxxxxxxx
/s/ XXX XXXXXXXXX
Xxx Xxxxxxxxx
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
NATIONAL HEALTHCARE CORPORATION
By: /s/ XXXXXXX X. XXXXXXX, XX.
Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Senior Vice President
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