REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of July 28,
1998, between The ▇▇▇▇ Group Inc., a Louisiana corporation ("▇▇▇▇") and the
undersigned shareholders of ▇▇▇▇ (the "Shareholders").
Preliminary Statement
▇▇▇▇, the Shareholders, ▇▇▇▇▇▇▇ Brothers, Inc. ("BBI") and ▇▇▇▇▇▇▇ Brothers
Acquisition Corporation ("BBAC") are parties to that certain Plan and Agreement
of Merger dated as of July 28, 1998 (the "Merger Agreement"), pursuant to
which, on the date hereof, ▇▇▇▇ is issuing shares (the "Shares") of ▇▇▇▇'▇
common stock, no par value (the "Common Stock"), to the Shareholders.
NOW, THEREFORE, in consideration of the transactions effected pursuant to
the Merger Agreement and the premises and the mutual agreements set forth
herein, ▇▇▇▇ and the Shareholders hereby agree as follows:
1. The Shares shall bear a legend substantially identical to the following:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION
INVOLVING SAID SECURITIES, OR (ii) THIS CORPORATION RECEIVES AN
OPINION SATISFACTORY TO THIS CORPORATION OF LEGAL COUNSEL FOR THE
HOLDER OF THESE SECURITIES ACCEPTABLE TO THIS CORPORATION STATING THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION. THE SECURITIES EVIDENCED
BY THIS CERTIFICATE ARE SUBJECT TO (A) THE RESTRICTION SET FORTH IN
SECTIONS 5.12(c) OF THAT CERTAIN PLAN AND AGREEMENT OF MERGER DATED AS
OF JULY 28, 1998 (THE "PLAN OF MERGER") AMONG THE SHAREHOLDERS OF
▇▇▇▇▇▇▇ BROTHERS, INC., ▇▇▇▇▇▇▇ BROTHERS, INC., ▇▇▇▇▇▇▇ BROTHERS
ACQUISITION CORPORATION AND THE ▇▇▇▇ GROUP INC. ("▇▇▇▇") AND (B) THE
RESTRICTIONS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT DATED AS
OF JULY 28, 1998 (THE "REGISTRATION AGREEMENT") BETWEEN ▇▇▇▇ AND THE
SHAREHOLDERS OF ▇▇▇▇▇▇▇ BROTHERS, INC. COPIES OF THE PLAN OF MERGER
AND THE REGISTRATION AGREEMENT ARE FILED WITH THE SECRETARY OF ▇▇▇▇.
BY ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BE
BOUND BY THE TERMS OF THE PLAN OF MERGER AND THE REGISTRATION
AGREEMENT.
2. ▇▇▇▇ represents and warrants to the Shareholders that the Shares are (a)
duly authorized, validly issued, fully paid and nonassessable and (b) free
and clear of all liens, claims and encumbrances other than those created by
any action or inaction of the Shareholders.
3. ▇▇▇▇ represents and warrants that (a) it has the corporate power and
authority to enter into and perform its obligations under this Agreement,
(b) this Agreement has been duly and validly authorized by all necessary
action, corporate or otherwise, (c) this Agreement has been duly executed
and delivered by it, and (d) this Agreement constitutes the valid and
legally binding obligation of it, enforceable against it in accordance with
its terms, except that (i) the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereinafter in effect relating to creditors'
rights generally and (ii) the remedy of specific performance and other
forms of equitable relief may be subject to certain equitable defenses and
to the discretion of the court before which proceeding therefor may be
brought.
4. Each of the Shareholders represents and warrants, as applicable, that (a)
each has the power and authority to enter into and perform its obligations
under this Agreement, (b) this Agreement has been duly and validly
authorized by all necessary action of each, (c) this Agreement has been
duly executed and delivered by each, and (d) this Agreement constitutes the
valid and legally binding obligation of each, enforceable against each in
accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereinafter in effect relating to
creditors' rights generally and (ii) the remedy of specific performance and
other forms of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which proceeding
therefor may be brought.
5. (a) ▇▇▇▇ shall cause to be filed with the Securities and Exchange
Commission (the "Commission") on or prior to August 1, 1998, a shelf
registration statement pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Shelf Registration Statement") on Form S-1 or Form
S-3, if the use of such form is then available and as determined by ▇▇▇▇,
to cover resales of Transfer Restricted Securities (as hereinafter
defined). The Shareholders shall provide the information required pursuant
to Section 5(b) hereof. ▇▇▇▇ shall use commercially reasonable efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or prior to 60 days after the date the Shelf Registration
Statement is initially filed with the Commission. ▇▇▇▇ shall use
commercially reasonable efforts to keep such Shelf Registration Statement
continuously effective for a period ending two years from the effective
date thereof or such shorter period as will terminate when each of the
Transfer Restricted Securities covered by the Shelf Registration Statement
shall cease to be a Transfer Restricted Security.
If there shall occur any event that would cause the Shelf Registration
Statement (i) to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) to be not effective and
usable for resale of Transfer Restricted Securities during the period that
such Shelf Registration Statement is required to be effective and usable,
▇▇▇▇ shall as promptly as practicable (but not later than 60 days) file an
amendment to the Shelf Registration Statement, in the case of clause (i),
correcting any such misstatement or omission, and in the case of either
clause (i) or (ii), use commercially reasonable efforts to cause such
amendment to be declared effective and such Shelf Registration Statement to
become usable as soon as practicable thereafter.
Notwithstanding anything to the contrary in this Section 5, ▇▇▇▇ may
prohibit offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement at any time if (A)(i) it is in possession of
material non-public information, (ii) the Board of Directors of ▇▇▇▇
determines (based on advice of counsel) that such prohibition is necessary
in order to avoid a requirement to disclose such material non-public
information, and (iii) the Board of Directors of ▇▇▇▇ determines in good
faith that disclosure of such material non-public information would not be
in the best interests of ▇▇▇▇ and its shareholders or (B) ▇▇▇▇ has made a
public announcement relating to an acquisition or business combination
transaction including ▇▇▇▇ and/or one or more of its subsidiaries (i) that
is material to ▇▇▇▇ and its subsidiaries taken as a whole and (ii) the
Board of Directors of ▇▇▇▇ determines in good faith that offers and sales
of Transfer Restricted Securities pursuant to the Shelf Registration
Statement prior to the consummation of such transaction (or such earlier
date as the Board of Directors shall determine) is not in the best
interests of ▇▇▇▇ and its shareholders or (C)(i) disclosure is required in
the Shelf Registration Statement of financial information of any person or
entity other than ▇▇▇▇ or its subsidiaries and affiliates pursuant to
Article 3 or Article 11 of Regulation S-X under the Securities Act of 1933,
as amended (the "Securities Act") and (ii) any of such required financial
information (including related audit reports and consents of independent
accountants) is not available to ▇▇▇▇ after use of commercially reasonable
efforts to obtain such financial information)(the period during which any
such prohibition of offers and sales of Transfer Restricted Securities
pursuant to the Shelf Registration Statement is in effect pursuant to
clause (A) or (B) of this subparagraph (a) is referred to herein as a
"Suspension Period"). A Suspension Period shall commence on and include the
date on which ▇▇▇▇ provides written notice to the Shareholders that offers
and sales of Transfer Restricted Securities cannot be made thereunder in
accordance with this Section 5 and shall end on the date on which the
Shareholders are advised in writing by ▇▇▇▇ that offers and sales of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
and use of the prospectus constituting a part of the Shelf Registration
Statement may be resumed; provided, however, that the aggregate number of
days in all Suspension Periods during any calendar year shall not exceed
120. Written notices and advices to the Shareholders pursuant to this
Section 5 shall be effective if provided to the Shareholder Representative
in accordance with Section 10.
(b) The Shareholders may not include any of their Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement
unless the Shareholders furnish to ▇▇▇▇ in writing, within 10 business days
after receipt of a request therefor, such information as ▇▇▇▇ may
reasonably request for use in connection with any Shelf Registration
Statement or prospectus or preliminary prospectus included therein.
(c) For purposes of this Section 5, "Transfer Restricted Securities"
shall mean each Share, until each such Share (A) has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement covering it, (B) is distributed to the public
pursuant to Rule 144 or (C) is sold or is available to be sold pursuant to
Rule 144(k) (or any similar provisions then in force) under the Securities
Act or otherwise or (D) is sold pursuant to Rule 904 of Regulation S under
the Securities Act.
6. If and whenever ▇▇▇▇ is required by the provisions of this Agreement to use
its best efforts to effect the registration of any of the Transfer
Restricted Securities under the Securities Act, ▇▇▇▇ will:
(a) furnish to each selling stockholder such number of prospectuses
and preliminary prospectuses in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably
request in order to facilitate the public sale or other disposition of the
Transfer Restricted Securities owned by such seller;
(b) use commercially reasonable efforts to register or qualify the
Transfer Restricted Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each such
selling stockholder shall reasonably request and do any and all other acts
and things which may be necessary or desirable to enable such seller to
consummate the public sale or other disposition in such jurisdiction of the
Transfer Restricted Securities owned by such seller; and
(c) use commercially reasonable efforts to list the Shares with any
securities exchange or market on which the Common Stock is then listed.
7. All expenses incident to ▇▇▇▇'▇ performance of or compliance with this
Agreement will be borne by ▇▇▇▇. Such expenses shall include, without
limitation, (i) all registration and filing fees (including those of the
Commission and the New York Stock Exchange, Inc.), (ii) fees and expenses
of compliance with all applicable state securities or "blue sky" laws,
(iii) printing and engraving expenses, (a) fees and disbursements of
counsel and independent accountants for ▇▇▇▇, (iv) listing fees on any
applicable stock exchange or trading system, and (v) rating agency fees.
8. In the event of a registration of any of the Transfer Restricted Securities
under the Securities Act, ▇▇▇▇ will hold harmless the seller of such
Transfer Restricted Securities, and each director, officer and partner of
such seller and each other person, if any, who controls such seller within
the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or
controlling persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any violation of
law by ▇▇▇▇ or its agents or any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in
any registration statement under which such Transfer Restricted Securities
was registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the 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 will reimburse such seller and
each such controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that ▇▇▇▇ will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, said preliminary prospectus or said prospectus or
said amendment or supplement in reliance upon and in conformity with
written information furnished to ▇▇▇▇ through an instrument duly executed
by such seller specifically for use in the preparation thereof.
In the event of any registration of any of the Transfer Restricted
Securities under the Securities Act pursuant to this Agreement, each seller
of such Transfer Restricted Securities, severally and not jointly, will
indemnify and hold harmless ▇▇▇▇ and each person, if any, who controls ▇▇▇▇
within the meaning of Section 15 of the Securities Act, each officer of
▇▇▇▇ who signs the registration statement and each director of ▇▇▇▇ within
the meaning of Section 15 of the Securities Act, against any and all such
losses, claims, damages or liabilities referred to in the above paragraph,
if the statement, alleged statement, omission or alleged omission in
respect of which such loss, claim, damage or liability is asserted was made
in reliance upon and in conformity with information furnished in writing to
▇▇▇▇ by or on behalf of such seller specifically for use in connection with
the preparation of such registration statement, preliminary prospectus,
prospectus, amendment or supplement.
9. Prior to any proposed transfer of any of the Transfer Restricted Securities
(other than under pursuant to an effective registration as provided
herein), the Shareholder shall give written notice to ▇▇▇▇ of such
Shareholder's intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied by a written opinion (in form
and content acceptable to ▇▇▇▇) of such counsel as shall be satisfactory to
▇▇▇▇ to the effect that (i) such proposed transfer does not create a
situation which would require the registration of any of the Transfer
Restricted Securities under the Securities Act; and (ii) the proposed
transfer may be effected without registration under the Securities Act of
the Transfer Restricted Securities to be transferred (as, for example, that
such transfer may be made pursuant to and in compliance with the conditions
of Rule 144 or Rule 237 under the Securities Act (or any other similar rule
in effect at the time)). ▇▇▇▇'▇ acceptance of such an opinion as
satisfactory shall not be unreasonably withheld. Such proposed transfer may
be effected only if ▇▇▇▇ shall have received such notice and opinion of
counsel, whereupon the holder of such Transfer Restricted Securities shall
be entitled to transfer such Transfer Restricted Securities in accordance
with the terms of the notice delivered by the holder to ▇▇▇▇. The
certificate issued upon the transfer of any such Transfer Restricted
Securities as above provided (and the certificate evidencing any
untransferred balance of such Transfer Restricted Securities) shall bear
the restrictive legend set forth in Section 1 above, except that the
certificate shall not bear such restrictive legend and the holder thereof
shall be entitled to receive from ▇▇▇▇, without expense, a new certificate
not bearing such legend, if the opinion of counsel referred to above is to
the further effect that such legend or legends are not required in order to
establish compliance with any provisions of the Securities Act. The rights
of the Shareholders under this Agreement may be transferred or assigned
only upon the written consent of ▇▇▇▇.
10. Each of the Shareholders hereby constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as his or her true and lawful attorney-in-fact, agent and representative
(the "Shareholder Representative"), with full power of substitution and
resubstitution, for him or her and in his or her name, place and ▇▇▇▇▇, in
any and all capacities, to negotiate and sign all amendments to this
Agreement, and all other documents in connection with the transactions
contemplated by this Agreement, including without limitation those
instruments called for by this Agreement and all waivers, consents,
instructions, authorizations and other actions called for, contemplated or
that may otherwise be necessary or appropriate in connection with this
Agreement or any of the foregoing agreements or instruments, granting unto
the Shareholder Representative full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that the Shareholder Representative, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof, including without limitation, the power and authority to deliver
and convey his Shares in accordance with the terms hereof, to receive and
give receipt for all consideration due him pursuant to this Agreement and
to receive all notices, requests and demands that may be made under and
pursuant to this Agreement. Should the Shareholder Representative be unable
or unwilling to serve or to appoint his successor to serve in his stead,
and unless the Shareholders appoint a successor to serve in his stead, the
Shareholders shall be required to act jointly so that ▇▇▇▇ may always deal
with one person on their behalf.
11. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier or air courier
guaranteeing overnight delivery:
If to the Shareholders:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇:
The ▇▇▇▇ Group Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
12. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Louisiana, without regard to principles of conflicts
of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE ▇▇▇▇ GROUP INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
SHAREHOLDERS OF ▇▇▇▇▇▇▇ BROTHERS, INC.:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
