REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of December 28, 2001 (the "Effective Date") by and among FURNITURE
BRANDS INTERNATIONAL, INC. ("FBI") HENREDON FURNITURE INDUSTRIES, INC.
("Henredon"), DREXEL HERITAGE FURNISHINGS INC. ("Drexel Heritage"),
MAITLAND-SMITH, INC. ("Maitland-Smith") and MAITLAND-SMITH PACIFIC, LTD.
("Pacific," which is collectively referred to with Henredon, Drexel Heritage and
Maitland-Smith as the "Selling Companies") and LIFESTYLE FURNISHINGS
INTERNATIONAL LTD. ("LFI", which is collectively referred to with the Selling
Companies as the "Holders").
RECITALS:
A. FBI, HDM Furniture Industries, Inc. ("HDM," a wholly-owned subsidiary of
FBI) and the Holders have entered into that certain Asset Purchase Agreement
dated December 4, 2001 (the "Purchase Agreement") pursuant to which HDM is
purchasing certain assets of the Selling Companies.
B. In accordance with the terms of the Purchase Agreement and in partial
consideration of the assets purchased, certain of the Holders are acquiring
shares of FBI common stock, $1.00 stated value (the "Common Stock").
C. As an inducement for the Holders to enter into, execute and comply with
the terms of the Purchase Agreement, the Holders have required that FBI grant
certain registration rights to the Holders, and FBI desires to grant those
registration rights to the Holders, pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Definitions and References.
Unless otherwise defined herein, the capitalized terms in this Agreement
shall have the same meanings given to them in the Purchase Agreement. For
purposes of this Agreement, in addition to the definitions set forth elsewhere
herein, the following terms shall have the following respective meanings:
"1933 Act" shall refer to the Securities Act of 1933, as amended, and the
rules and regulations adopted thereunder.
"Affiliate" shall have the meaning as provided in the 1933 Act.
"Exchange Act" refers to the Securities Exchange Act of 1934, as amended,
and the rules and regulations adopted thereunder.
"Incidental Registration Rights" shall refer to those rights for
"Incidental Registration" as provided in Section 4 hereunder.
"NASD" means the National Association of Securities Dealers, Inc. and any
successor thereto.
"NYSE" means the New York Stock Exchange and any successor thereto.
"Person" means any corporation, association, joint venture, partnership,
limited liability company, organization, business, individual, trust, government
or agency or political subdivision thereof or any other legal entity.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and all amendments and
supplements thereto, including any supplement relating to the terms of the
offering of any portion of the Shares covered by the Shelf Registration
Statement, and in each case including all materials incorporated by reference
therein.
"Register", "registered" and "registration" shall refer to a registration
effected by preparing and filing a Registration Statement or similar document in
compliance with the 1933 Act and the declaration or ordering of effectiveness of
such Registration Statement or document by the SEC.
"Registration Expenses" means all expenses incident to FBI's performance or
compliance with Sections 2, 3 and 4 of this Agreement, including without
limitation all registration and filing fees with the SEC, NYSE, the NASD and any
other governmental or regulatory agency, all fees and expenses of compliance
with securities or blue sky laws (including filing fees and the fees and
disbursements of underwriters' attorneys in connection with blue sky matters, if
applicable), all printing, messenger and delivery expenses, all fees and
disbursements of custodians, all fees, expenses and disbursements of attorneys
for FBI, all fees and disbursements of all independent certified public
accountants (including in connection with any special audits) and any other
persons retained by FBI, all expenses for liability insurance, and all fees and
disbursements for listing the securities to be registered on the NYSE or any
securities exchange as required hereunder.
"Registration Statement" shall refer to the Shelf Registration Statement or
any registration statement filed in connection with the Incidental Registration
Rights, as applicable.
"SEC" shall refer to the United States Securities and Exchange Commission.
"Shares" shall include (a) the shares of Common Stock initially issued
pursuant to the Purchase Agreement and (b) any shares of the Common Stock issued
as (or issuable upon the conversion or exercise of any warrant, right, option or
other convertible security which is issued as) a dividend or other distribution
with respect to, or in exchange for, or in replacement of, such shares of Common
Stock.
2. "Shelf" Registration. As soon as practicable following the Effective
Date, but in no event later than March 31, 2002 or 90 days after the Effective
Date, whichever is later, FBI shall file with the SEC a "shelf" registration
statement for the public resale by the Holders of the Shares (and by the
pledgees, transferees and derivative transaction counterparties of the Holders)
on a continuous or delayed basis pursuant to Rule 415 (or any successor rule)
under the 1933 Act (the "Shelf Registration Statement"). The plan of
distribution indicated in the Shelf Registration Statement will include all such
transactions as the Holders may reasonably request in writing prior to the
filing of the Shelf Registration Statement and that can be included in the Shelf
Registration Statement under the 1933 Act, other than an underwritten public
offering solely of the Shares. FBI shall use all reasonable efforts to cause the
Shelf Registration Statement to be declared effective under the 1933 Act as
promptly as possible after the filing thereof, and shall use all reasonable
efforts to keep the Shelf Registration Statement continuously effective under
the 1933 Act until the earlier of (a) the date which is two (2) years after the
Effective Date (the "Shelf Registration Period"), or (b) the date when all
Shares have been sold by the Holders or by transferees to whom the Holders or
such transferees may assign their rights hereunder pursuant to Section 8 hereof.
All Registration Expenses incurred in connection with this Section 2 and the
Shelf Registration Statement shall be paid by FBI.
3. Obligations of FBI. FBI shall:
(a) use all reasonable efforts to cause the Shelf Registration Statement to
become effective as soon as practicable after the filing thereof, and remain
effective for the period set forth in Section 2 hereof;
(b) (i) prepare and file with the SEC such amendments and supplements to
the Shelf Registration Statement and the Prospectus used in connection therewith
as may be necessary to comply with the provisions of the 1933 Act with respect
to the disposition of all Shares ; (ii) cause such Prospectus to be amended or
supplemented as required and to be filed as required by Rule 424 or any similar
rule that may be adopted under the 1933 Act; (iii) respond as promptly as
practicable to any comments received from the SEC with respect to the Shelf
Registration Statement or any amendment thereto; and (iv) if applicable, comply
with the provisions of the 1933 Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holders thereof (including filing such Prospectus (and any amendment and
supplement thereto) with the NYSE, if required);
(c) furnish to the Holders such numbers of copies of the Shelf Registration
Statement and the Prospectus included therein (including each preliminary
Prospectus and any amendments or supplements thereto in conformity with the
requirements of the 1933 Act) and such other documents and information as they
may reasonably request; comply with the requirements of Rule 153 under the 1933
Act and furnish to the NYSE a reasonable number of copies of the Prospectus; FBI
consents to the use of the Prospectus and any amendment or supplement thereto by
each such Holder of Shares in connection with the offering and sale of Shares;
(d) use all reasonable efforts to register or qualify the Shares under the
securities or blue sky laws of such jurisdiction within the United States and
Puerto Rico as shall be reasonably requested by the Holders for the distribution
of the Shares; keep each such registration or qualification effective during the
period such Shelf Registration Statement is required to be kept effective or
during the period offers or sales are being made by a Holder, whichever is
shorter, and do any and all other acts that may reasonably be necessary to
enable such Holder to dispose of such Shares owned by such Holder in each such
jurisdiction; provided, however, that in connection therewith, FBI shall not be
required to (i) qualify as a foreign corporation to do business or to register
as a broker or dealer in any such jurisdiction where it otherwise would not be
required to qualify or register but for this Section 3(d), (ii) subject itself
to taxation in any such jurisdiction, or (iii) file a general consent to service
of process in any such jurisdiction wherein it is not otherwise required to do
so;
(e) notify each Holder of Shares (i) when any amendment or supplement to
the Shelf Registration Statement or Prospectus has been filed with the SEC, (ii)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Shelf Registration Statement or any part
thereof or the initiation of any proceedings for that purpose, or (iii) if FBI
receives any notification with respect to the suspension of the qualification of
the Shares for offer or sale in any jurisdiction or the initiation of any
proceeding for such purpose;
(f) notify the Holders at any time when a Prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the Prospectus included in the Shelf Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, and at the request of any Holder promptly prepare and furnish to
such Holder a reasonable number of copies of a supplement to or an amendment of
such Prospectus, or a revised Prospectus, as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such Prospectus shall
not include 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 in the light of the circumstances under which they were made;
provided, that in the event of a material development or transaction affecting
FBI that has not yet been publicly disclosed, if FBI shall determine in good
faith that it would be materially adversely affected by such disclosure, FBI may
so notify the Holders (such notice being referred to herein as a "Deferral
Notice"), and shall thereafter be entitled to defer preparing and furnishing
such supplement or amendment until such time (but not more than 90 days) as it
would not be so affected, at which time it shall give the Holders a further
notice to such effect and shall prepare and furnish to the Holders any such
supplement or amendment as may then be required (provided that FBI shall only be
entitled to deliver a Deferral Notice to such Holders if it shall have delivered
a comparable notice, or taken equivalent action, with respect to any other of
its shareholders holding shares that, to the extent permitted hereunder, are
then registered for resale on an effective registration statement filed by FBI).
Following receipt of any supplement or amendment to any Prospectus, the Holders
shall deliver such amended, supplemental, or revised Prospectus in connection
with any offers or sales of Shares, and shall not deliver or use any Prospectus
not so supplemented, amended or revised. Following receipt of a Deferral Notice,
the Holders shall not make any further sales of Shares pursuant to the
Registration Statement until the Holders receive such further notice, and any
such amendment or supplement, from FBI. FBI may deliver only two such Deferral
Notices during any period of one year and may not deliver any Deferral Notice
within 180 days of any prior Deferral Notice.
(g) use reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of the Shelf Registration Statement, or any part thereof, as
promptly as possible;
(h) make available for inspection by the Holders of Shares and any counsel,
accountants or other representatives retained by such Holders all financial and
other records, pertinent corporate documents and properties of FBI, and cause
the officers, directors and employees of FBI to supply all such records,
documents or information reasonably requested by such Holder's counsel,
accountants or representatives in connection with the Shelf Registration
Statement; provided, however, that such records, documents or information (other
than records, documents and information that is publicly available) shall not be
disclosed by such Holder's counsel, accountants or representatives unless (i)
such disclosure is necessary to avoid or correct a material misstatement or
omission in a Registration Statement, (ii) such disclosure is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, or (iii)
such records, documents or information become generally available to the public
other than through a breach of this Agreement;
(i) take such other actions as are reasonably required in order to
facilitate the disposition of the Shares to be so included in the Shelf
Registration Statement; and
(j) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the SEC in registering the resale of the Shares; and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months beginning
with the first full month after the effective date of such Registration
Statement, which earnings statements shall satisfy the provisions of Section
11(a) and Rule 158 of the 1933 Act.
4. Incidental Registration.
(a) Incidental Registration Rights Granted. Notwithstanding the rights set
forth in Section 3 above, at any time prior to the third anniversary of the
Effective Date, if FBI proposes to register any of the Common Stock under the
1933 Act (other than a registration statement on Form S-4 or Form S-8), it will
at each such time give written notice to all Holders of Shares of its intention
to do so. Upon the written request of such Holders given within twenty (20) days
after receipt of any such notice (stating the number of Shares to be disposed of
by such Holders and the intended method of disposition), FBI will use
commercially reasonable efforts to cause all such Shares to be registered under
the 1933 Act so as to permit the disposition (in accordance with the methods in
said request) by such Holders of the Shares so registered, subject, however, to
the limitations set forth in this Section 4. The Incidental Registration Rights
provided herein shall also apply to such additional shares of Common Stock as
may be held by the Holders at the time of such Incidental Registration (such
additional shares of Common Stock not to exceed one percent of the shares of
Common Stock then outstanding in the aggregate for all Holders).
(b) Priority of Registration Rights. If in an Incidental Registration the
managing underwriters advise FBI in writing that in their opinion the number of
securities requested to be included in such Registration exceeds the number that
could be sold in such offering without adversely affecting the marketability of
the offering, FBI shall include the Shares and other securities in such
Registration in the following order of priority: (i) first, the securities FBI
proposes to sell, (ii) second, the number of Shares requested to be included
therein that in the opinion of such underwriters can be sold therein without
adversely affecting the marketability of the offering, pro rata among the
respective Holders thereof on the basis of the number of Shares then held by
each such Holder, and (iii) third, any other securities requested to be included
in such Registration. All Registration Expenses incurred in connection with any
Incidental Registration contemplated by this Section 4 hereunder shall be paid
by FBI.
(c) Additional Requirements. In addition to the obligations set forth in
Sections 4(a) and 4(b) above, with respect to any Incidental Registration, FBI
shall comply with the obligations set forth in Section 3 of this Agreement as if
the Shelf Registration Statement referred to therein were the Registration
Statement filed in connection with any such Incidental Registration.
5. Furnish Information. It shall be a condition precedent to the
obligations of FBI to take any action pursuant to this Agreement that each
Holder shall furnish to FBI such information regarding itself, the Shares held
by it, and the intended method of disposition of such securities as FBI shall
reasonably request and as shall be required in connection with the actions to be
taken by FBI hereunder.
6. Other Registration Rights. Except as provided in and pursuant to this
Agreement, FBI represents and warrants to the Holders that there are, as of the
date hereof, no registration rights in effect (or that would become effective
upon the occurrence of any event or circumstance) in favor or any Person with
respect to equity securities of FBI or any securities convertible or
exchangeable into or exercisable for such securities. FBI shall not grant to any
Persons any registration rights with respect to equity securities of FBI or any
securities convertible or exchangeable into or exercisable for such securities,
which registration rights are superior or prior to, or conflict or are
inconsistent with, any of the registration rights granted under this Agreement,
without the prior written consent of the Holders of at least a majority of the
Shares, other than shelf registration rights comparable to the Shelf
Registration Statement for non-underwritten sales contemplated hereunder
7. Rule 144 Information. With a view to making available the benefits of
certain rules and regulations of the SEC which may at any time permit the sale
of the Shares to the public without registration, at all times FBI agrees to:
(a) make and keep public information available, as provided in Rule
144(c)(1) under the 1933 Act;
(b) use all reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of FBI under the 1933 Act and the Exchange
Act; and
(c) furnish to each Holder forthwith upon such Holder's request a written
statement by FBI that it has complied with the current public information
requirements of Rule 144(c), a copy of the most recent annual or quarterly
report of FBI, and such other reports and documents so filed by FBI as such
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing such Holder to sell any Shares without registration.
8. Transfer of Shares and Registration Rights.
(a) Each Holder agrees that it will not transfer any Shares except (i)
pursuant to an effective registration statement under the 1933 Act, (ii) in
compliance with Rule 144 or as contemplated by Rule 144(k), (iii) to Masco
Corporation, upon receipt by FBI of an opinion of counsel (which counsel may be
in-house counsel or other counsel reasonably satisfactory to FBI) in form and
substance customary in similar situations, or (iv) to any other Person upon
receipt by FBI of an opinion of counsel (which counsel shall be reasonably
satisfactory to FBI) in form and substance customary in similar situations, or
(v) upon receipt by FBI of a no-action letter from the SEC addressed to FBI or
such Holder, to the effect that no registration statement is required under the
Securities Act for the proposed transaction. The Holders acknowledge that the
certificates evidencing the Shares may bear a legend to the foregoing effect.
(b) The registration rights of a Holder under this Agreement with respect
to any Shares, and any and all other rights afforded to the Holders in
accordance with the terms of this Agreement may be transferred or assigned to
(a) any transferee or assignee of such Shares who, after such transfer or
assignment, holds at least 1,000,000 Shares previously held by the Holders; (b)
any other Holder, any Affiliate of a Holder, or any pledgee to whom a Holder
pledges Shares, or (e) Masco Corporation; provided, however, that (i) such
Holder shall give FBI written notice of such transfer stating the name and
address of the transferee and identifying the securities with respect to which
the rights under this Agreement are being transferred; and (ii) such transferee
shall agree in writing, in form and substance reasonably satisfactory to FBI, to
be bound as a Holder by the provisions of this Agreement. FBI will take such
action as may be required to permit the sale of Shares by all such transferees
pursuant to the Shelf Registration Statement contemplated by Section 2 hereof,
including amending or supplementing any Registration Statement or Prospectus.
9. Indemnification; Contribution.
(a) Indemnification by FBI. FBI agrees to indemnify and hold harmless each
Holder and its officers and directors and each Person, if any, who controls any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred (including any legal or other expenses
reasonably incurred in connection with defending or investigating any such
claim), (A) that arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(including all documents incorporated therein by reference) or any amendment
thereto, or the omission or alleged omission therein of a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (B) that arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (including all
documents incorporated therein by reference) or any amendment or supplement
thereto, or the omission or alleged omission therein of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnity provided pursuant to this Section 9(a) shall not apply to any
Holder with respect to any loss, liability, claim, damage or expense that arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to FBI by such Holder expressly for use in the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto.
(b) Indemnification by Holders. Each Holder agrees to indemnify and hold
harmless FBI and the other selling Holders, and each of their respective
directors and officers (including each director and officer of FBI who signed
the Registration Statement), and each Person, if any, who controls FBI or any
other selling Holder within the meaning of Section 15 of the Securities Act, to
the same extent as the indemnity contained in Section 9(a) hereof, but only
insofar as such loss, liability, claim, damage or expense arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto or
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to FBI by such selling Holder
expressly for use therein.
(c) Conduct of Indemnification Proceedings. Each indemnified party shall
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability that it may have under the indemnity agreement provided in
Section 9(a) or (b) above, unless and to the extent it did not otherwise learn
of such action and the lack of notice by the indemnified party materially
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligations provided under Section 9(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, to the extent it wishes, jointly with any other
indemnifying party so notified, assume the defense of such action or proceeding
at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that if the defendants in any
such action or proceeding include both the indemnified party and the
indemnifying party and the indemnified party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to the indemnified parties that are different from or in
addition to those available to the indemnifying party, then the indemnifying
party shall not be entitled to assume the defense of such action or proceeding
and the indemnified party shall be entitled to one separate counsel, the
reasonable fees and expenses of which counsel shall be paid by the indemnifying
party. If the indemnifying party does not assume the defense of any such action
or proceeding, after having received the notice referred to in the first
sentence of this Section 9(c), the indemnifying party will pay the reasonable
fees and expenses of counsel (which shall be limited to a single law firm) for
the indemnified party. In such event, however, no indemnifying party will be
liable for any settlement effected without the written consent of such
indemnifying party. If the indemnifying party assumes the defense of any such
action or proceeding in accordance with this Section 9(c), such indemnifying
party shall not be liable for any fees and expenses of counsel for the
indemnified party incurred thereafter in connection with such action or
proceeding, except as otherwise set forth in this Section 9(c).
(d) Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in this Section 9
is for any reason held to be unenforceable, although applicable in accordance
with its terms, FBI and the selling Holders shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by FBI and the selling Holders, in such
proportion as is appropriate to reflect the relative fault of FBI on the one
hand and the selling Holders on the other (in such proportions that the selling
Holders are severally, not jointly, responsible for the balance), in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or the indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9(d), no selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price (less selling commissions) at which the Shares of such selling Holder were
offered to the public exceeds the amount of any damages which such selling
Holder otherwise has been required to pay by reason of such untrue statement or
omission.
Notwithstanding the foregoing, 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. For purposes of this Section 9(d), each Person, if
any, who controls a Holder within the meaning of Section 15 of the 1933 Act, and
directors and officers of a Holder shall have the same rights to contribution as
such Holder, and each director of FBI, each officer of FBI who signed the
Registration Statement and each Person, if any, who controls FBI within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as FBI.
10. General Provisions.
(a) Notices. All notices and other communications hereunder must be in
writing and will be deemed to have been duly given when delivered personally,
sent by messenger or by documented overnight delivery service, mailed by
registered or certified mail (return receipt requested) or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission service
to the appropriate address or number as set forth below. Notices to the Holders
shall be addressed to:
LifeStyle Furnishings International
4000 LifeStyle Court
High Point, NC 27265
Attn: Ronald J. Hoffman
Fax No.: (336) 878-7005
with a copy to:
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
230 N. Elm Street, Suite 2000
Renaissance Plaza
Greensboro, NC 27401
Attn: Marc D. Bishop
Fax No.: (336) 378-1001
or at such other address and to the attention of such other person as the
Holders may designate by written notice to FBI. Notices to FBI shall be
addressed to:
Furniture Brands International, Inc.
101 South Hanley Road, 19th Floor
St. Louis, MO 63105
Attn: Secretary
Fax No.: 314-863-7047
with a copy to:
Furniture Brands International, Inc.
Attn: General Counsel
at the same address
or at such other address and to the attention of such other person as FBI may
designate by written notice to the Holders.
(b) Entire Agreement; Independence of Obligations. This Agreement and the
Purchase Agreement constitute and contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersede any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof. In the
event of any conflict between this Agreement and the Purchase Agreement, the
terms of this Agreement shall control.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to
conflicts of law principles.
(d) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
(e) Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
(f) Successors and Assigns. Subject to the provisions of Section 8, the
provisions of this Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of the parties hereto.
(g) Captions. The captions to sections of this Agreement have been inserted
for identification and reference purposes only and shall not be used to construe
or interpret this Agreement.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
(i) Costs and Attorneys' Fees. In the event that any action, suit or other
proceeding is instituted concerning or arising out of this Agreement or any
transaction contemplated hereunder, the prevailing party shall recover all of
such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
(j) Adjustments for Stock Splits, Etc. Wherever in this Agreement there is
a reference to a specific number of Shares, then, upon the occurrence of any
subdivision, combination or share dividend of such class of shares, the specific
number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of shares by such subdivision, combination or share dividend.
(k) Each Holder represents to FBI that such Holder is acquiring the Shares
with investment intent and without a view to the distribution thereof in
violation of the 1933 Act.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LifeStyle Furnishings International Ltd. Furniture Brands International, Inc.
By: /s/ Ronald J. Hoffman By: /s/ David P. Howard
------------------------------------- -------------------------------
Ronald J. Hoffman David P. Howard
Its: Vice President and CFO Its: Vice President
Henredon Furniture Industries, Inc.
By: /s/ Ronald J. Hoffman
--------------------------------------
Ronald J. Hoffman
Its: Vice President
Drexel Heritage Furnishings Inc.
By: /s/ Ronald J. Hoffman
--------------------------------------
Ronald J. Hoffman
Its: Vice President
Maitland-Smith, Inc.
By: /s/ Ronald J. Hoffman
--------------------------------------
Ronald J. Hoffman
Its: Vice President
Maitland-Smith, Smith Pacific, LTD.
By: /s/ Ronald J. Hoffman
--------------------------------------
Ronald J. Hoffman
Its: Vice President