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EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
entered as of this day of March 28, 1996 by and among Barnett Inc., a Delaware
corporation (the "Company"), and Waxman USA Inc., a Delaware corporation
("Waxman USA").
WHEREAS, Waxman USA owns all of the issued and outstanding
shares of common stock, par value $.01 per share (the "Common Stock"), of the
Company;
WHEREAS, in connection with the initial public offering (the
"Offering") of shares of Common Stock of the Company pursuant to a Registration
Statement on Form S-1 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), the Company and Waxman USA will sell to
the underwriter of the Offering for resale to the public, an aggregate of
approximately 6,552,000 shares (approximately 7,207,200 shares if the
underwriters' over-allotment option is exercised in full) of the issued and
outstanding Common Stock of the Company;
WHEREAS, the Company and Waxman USA desire to set forth
certain of their rights and obligations with respect to the shares of Common
Stock beneficially owned by Waxman USA upon consummation of the Offering;
NOW, THEREFORE, in consideration of the covenants and
agreements set forth herein, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Company and Waxman
USA hereby agree as follows:
1. Effective Date. This Agreement shall become effective (the
"Effective Date") on the date the Offering is consummated.
2. Registration Rights.
2.1. Demand and Incidental Registration.
(a) Demand Registration. From and after six
months subsequent to the Effective Date, Waxman USA shall have the right to
request that the Company file a registration statement with the Securities and
Exchange Commission (the "SEC") (a "Demand Registration") for the purpose of
registering not less than 1,000,000 shares of the Registrable Securities (as
hereinafter defined) under the Securities Act beneficially owned by Waxman USA.
Each request for registration under this Section 2.1(a) shall be effected by
Waxman USA by delivering a written notice (an "Investor Registration Notice") to
the Company. The Investor Registration Notice will specify the aggregate number
of Registrable Securities proposed to be sold and the intended method of
disposition thereof and will contain the
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undertaking of Waxman USA to provide all such information regarding its holdings
of securities of the Company, and such other information pertaining to Waxman
USA, as may be required to permit the Company to comply with all applicable laws
and regulations and all requirements of the SEC or any other applicable
regulatory or self-regulatory body. Upon receipt of an Investor Registration
Notice, the Company shall file and shall use all reasonable efforts to have
declared effective a registration statement under the Securities Act with
respect to the offer and sale of the Registrable Securities requested to be
registered by Waxman USA; provided that, the Company may delay the registration
of the offer and sale of the Registrable Securities following the receipt of an
Investor Registration Notice pursuant to this Section 2.1(a), for the time
periods described in Section 2.1(d), if:
(i) the Company is in possession of material
nonpublic information that the Company would be
required to disclose in the registration statement
and that is not, but for the registration, otherwise
required to be disclosed at the time of such
registration, the disclosure of which, in its good
faith judgment, would have a material adverse effect
on the business, operations, prospects or competitive
position of the Company or its subsidiaries;
(ii) at the time of receipt of an Investor
Registration Notice, the Company is engaged, or its
board of directors has adopted by resolution a plan
to engage in, any program for the purchase of shares
of Common Stock or securities convertible into,
exchangeable or exercisable for shares of Common
Stock and, in the opinion of counsel, reasonably
satisfactory to Waxman USA, the distribution of the
Common Stock to be registered would cause such
purchase of shares to be in violation of Rule 10b-6
under Section 10 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All of the Registration Expenses (as defined below) of
registering the Registrable Securities pursuant to this Section 2.1(a) shall be
borne by the Company. The Company shall have the right to select the underwriter
for any offering pursuant to this Section 2.1(a), which underwriter shall be
reasonably satisfactory to Waxman USA. For the purposes of this Agreement,
"Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with Section 2 including, without limitation, all
registration and filing fees, all listing fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses and the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters and expenses of
any special audits required by or incident to such performance and compliance,
premiums and other costs of policies of insurance against liabilities arising
out of the public offering of the Registrable Securities being registered and
any fees and disbursements of underwriters customarily paid by issuers and
sellers of securities, but excluding fees and disbursements of counsel to Waxman
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USA and its affiliates, underwriting fees, discounts and commissions and any
payment to underwriters in the form of shares of Common Stock or warrants, and
applicable transfer taxes, if any. Notwithstanding anything to the contrary
contained herein, Waxman USA shall pay or cause to be paid all Registration
Expenses in the event any registration statement is withdrawn at Waxman USA's
request or as a result of (x) Waxman USA's failure to deliver the information
reasonably requested by the Company for inclusion in the registration statement,
or (y) Waxman USA's failure to approve of the filing of any registration
statement or any amendment or supplement thereto. For purposes of this
Agreement, "Registrable Securities" shall mean (i) the shares of Common Stock
owned beneficially and of record by Waxman USA on the Effective Date (the
"Original Shares"); (ii) any Common Stock or other equity securities of the
Company issued or issuable in respect of the Original Shares on account of any
stock split, stock dividend, dilution event, recapitalization or similar event,
provided, however, that shares of Common Stock or other securities shall no
longer be treated as Registrable Securities if such securities are eligible for
sale (or such portion of such securities as Waxman USA has requested be
registered), in the opinion of counsel to the Company (such counsel to be
reasonably satisfactory to Waxman USA), in a single transaction exempt from the
registration and prospectus delivery requirements of the Act so that all
transfer restrictions and restrictive legends with respect thereto may be
removed from the certificates representing such securities upon the consummation
of such sale.
(b) Incidental Registration. If the Company
at any time proposes to register any of its securities under the Securities Act
(other than the registration of shares of Common Stock in the Offering), whether
or not for sale for its own account, on a form and in a manner which would
permit registration of the Registrable Securities for sale to the public under
the Securities Act, the Company will give prompt written notice to Waxman USA of
its intention to do so, in no event later than 30 days prior to the proposed
filing date of the registration statement covering such securities, describing
such securities and specifying the form and manner of such proposed
registration. Upon the written request of Waxman USA delivered to the Company at
least 10 days prior to the actual date of filing (which request shall specify
the Registrable Securities intended to be disposed of and the intended method of
disposition thereof and will contain the undertaking of Waxman USA to provide
all such information regarding its holdings of securities of the Company, and
such other information pertaining to Waxman USA, as may be required to permit
the Company to comply with all applicable laws and regulations and all
requirements of the SEC or any other applicable regulatory or self-regulatory
body), the Company shall use all reasonable efforts to effect the registration
under the Securities Act of the offer and sale of all Registrable Securities
which the Company has been so requested to register by Waxman USA; provided,
that the Company may delay the registration of the offer and sale of the
Registrable Securities following a written request pursuant to this Section
2.1(b), for the time periods described in Section 2.1(d) if:
(i) at any time after giving such written
notice of its intention to register any of the
Registrable Securities and prior to the effective
date
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of the registration statement filed in connection
with such registration, the Company shall determine
in good faith not to register any of its securities,
the Company may, at its election, give written notice
of its determination to Waxman USA and thereupon
shall be relieved of its obligation to register any
Registrable Securities in connection with such
registration, without prejudice, however, to the
rights of Waxman USA to request that such
registration be effected as a registration under and
pursuant to the provisions of Section 2.1(a);
(ii) (A) the registration so proposed by the
Company involves an underwritten offering of the
securities so being registered, whether or not for
sale for the account of the Company, to be
distributed (on a firm commitment basis) by or
through one or more underwriters of recognized
standing under underwriting terms appropriate for
such a transaction, (B) the Registrable Securities so
requested to be registered for sale for the account
of Waxman USA are not also to be included in such
underwritten offering (either because the Company has
not been requested so to include such Registrable
Securities pursuant to Section 2.1(b) or, if
requested to do so, has been unable so to include
such Registrable Securities after using all
reasonable efforts to do so as provided in Section
2.2) and (C) the managing underwriter of such
underwritten offering shall advise the Company in
writing that, in its opinion, the distribution of all
Registrable Securities or a specified portion of such
Registrable Securities concurrently with the
securities being distributed by such underwriters
will materially and adversely affect the distribution
of such securities by such underwriters (such opinion
to state the reasons therefor), then the Company will
promptly furnish Waxman USA with a copy of such
opinion and may require, by written notice to Waxman
USA accompanying such opinion, that the distribution
of all or such specified portion of such Registrable
Securities be deferred until the completion of the
distribution of such securities by such underwriters,
but in no event for a period of more than 120 days
after the effective date of such registration; and
(iii) the Company shall not be obligated to
effect any registration of Registrable Securities
under Section 2.1(b) incidental to the registration
of any of its Registrable Securities in connection
with mergers, acquisitions, exchange offers, dividend
reinvestment plans or stock option or other employee
benefit plans.
All Registration Expenses pursuant to this Section 2.1(b)
shall be borne by the Company.
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Waxman USA acknowledges that any notification received by or
from the Company regarding a proposal of the Company to register any of its
securities under the Securities Act may constitute "material inside information"
under the federal securities laws.
(c) Number and Timing of Requests. Waxman
USA shall be entitled to an aggregate of two Demand Registrations; provided,
however, that no Demand Registration shall be or be deemed to have been utilized
under Section 2.1(a) unless and until the registration statement relating to the
Registrable Securities which are the subject of the Demand Registration is
declared effective by the SEC and no stop order suspending the effectiveness of
such registration statement shall have been issued. Such Demand Registration
rights may not be exercised more than once every six months. Waxman USA shall
have unlimited incidental registration rights; provided such incidental rights
are exercised by Waxman USA with respect to the lesser of (x) the total number
of Registrable Securities owned by Waxman USA or (y) 1,000,000 Registrable
Securities.
(d) Period of Delay. If an event described
in clause (i) of Section 2.1(a) or clause (i) or (iii) of Section 2.1(b) shall
occur, the Company may, by written notice to Waxman USA, delay the filing of a
registration statement with respect to the Registrable Securities for a period
of time ending on the earlier to occur of (x) the date upon which the basis for
the delay is no longer a cause for delay or (ii) the date which is 60 days after
the date upon which the filing of the registration statement, absent the delay,
was required to have been made.
If an event described in clause (ii) of Section 2.1(a) shall occur, the
filing of a registration statement with respect to the Registrable Securities
shall be delayed until the first date that the Registrable Securities can be
sold without violation of Rule 10b-6 under Section 10 of the Exchange Act.
(e) Withdrawal of Registration. If the
Company gives a written notice of extension as set forth in Section 2.1(d),
Waxman USA may withdraw its registration request pursuant to Section 2.1(a) by
written notice delivered to the Company no later than the expiration of the
extension period set forth in the Company's notice of extension.
(f) Cutbacks. In connection with a
registration pursuant to Section 2.1(a) or (b) hereof, if the underwriter
advises the Company in writing that the amount of Registrable Securities
proposed to be sold by Waxman USA is greater than the amount of securities which
the underwriter reasonably believes feasible to sell at that time, at the price
and upon the terms approved by Waxman USA, then the amount of securities which
the underwriter in its sole discretion believes may be sold shall be limited to
such amount of Registrable Securities as is feasible to sell at that time.
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2.2. Registration Procedures.
(a) If and whenever the Company is required
to file and to use all reasonable efforts to have declared effective a
registration statement with respect to any Registrable Securities under the
Securities Act as provided in Section 2.1, the Company will expeditiously:
(i) prepare and, as soon as practicable, but
in no event later than 45 days after a request for
registration has been delivered to the Company by
Waxman USA, file with the SEC a registration
statement with respect to such Registrable Securities
and use all reasonable efforts to cause such
registration statement to become effective on the
appropriate form for an offering to be made on a
continuous basis pursuant to Rule 415 under the
Securities Act;
(ii) prepare and file with the SEC such
amendments and supplements to such registration
statement and the prospectus used in connection
therewith as may be necessary to keep such
registration statement effective and to comply with
the provisions of the Securities Act with respect to
the disposition of all Registrable Securities and
other securities covered by such registration
statement until the earlier of (a) such time as all
of such Registrable Securities and securities have
been disposed of in accordance with the intended
methods of disposition by the seller or sellers
thereof set forth in such registration statement or
(b) the expiration of two years after such
registration statement becomes effective;
(iii) furnish to Waxman USA such number of
conformed copies of such registration statement and
of each such amendment and supplement thereto (in
each case including all exhibits), such number of
copies of the prospectus included in such
registration statement (including each preliminary
prospectus and any summary prospectus), in conformity
with the requirements of the Securities Act, such
documents incorporated by reference in such
registration statement or prospectus, and such other
documents, as Waxman USA may reasonably request;
(iv) use all reasonable efforts to register
or qualify all Registrable Securities and other
securities covered by such registration statement
under the blue sky laws of such jurisdictions as
Waxman USA shall reasonably request, and do any and
all other acts and things which may be necessary or
advisable to enable Waxman USA to consummate the
disposition in such jurisdictions of its Registrable
Securities covered by such registration statement;
provided that the Company will not be
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required to register or qualify the Registrable
Securities in any jurisdiction where such
registration or qualification would (w) require it to
qualify generally to do business in such jurisdiction
and where it would not otherwise be required to
qualify but for this subparagraph (iv), (x) subject
it to taxation in such jurisdiction and where it
would not otherwise be subject to taxation, (y)
require it to consent to service of process in any
such jurisdiction where it would not otherwise be
generally available for service of process, or (z)
require it to amend the terms of the securities being
registered or of any other class of its securities;
(v) furnish to Waxman USA a signed
counterpart, addressed to Waxman USA, of (A) an
opinion of counsel for the Company dated the
effective date of such registration statement (and,
if such registration includes an underwritten public
offering, dated the date of the closing of such
underwritten public offering), and (B) a "cold
comfort" letter signed by the independent public
accountants who have certified the Company's
financial statements included in such registration
statement, covering substantially the same matters
with respect to such registration statement (and the
prospectus included therein) and, in the case of such
accountants' letter, with respect to events
subsequent to the date of such financial statements,
as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of
securities and, in the case of the accountants'
letter, such other financial matters, as Waxman USA
may reasonably request;
(vi) promptly notify Waxman USA in writing
at any time when a prospectus relating thereto is
required to be delivered under the Securities Act,
(u) when the registration statement or any amendment
thereto has been filed with the SEC and when the
registration statement or any post-effective
amendment thereto has become effective, (v) of any
request by the SEC for amendments or supplements to
the registration statement or the prospectus included
therein or for additional information (including the
particulars thereof), (w) of the issuance by the SEC
of any stop order suspending the effectiveness of the
registration statement or the initiation or
threatening of any proceedings for that purpose, (x)
of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of
the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of
proceedings for the same, (y) of the happening of any
event that would require the Company to make changes
in the registration statements or in the prospectus
included therein in order to make the statements
therein not misleading (which
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notice shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite
changes have been made) or (z) when the prospectus
relating thereto shall not contain the current
information required by the Securities Act, and upon
the occurrence of any event specified in clause (y)
or (z), prepare and furnish to Waxman USA such number
of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary to make the statements therein not
misleading in the light of the circumstances under
which they were made;
(vii) otherwise use all of its reasonable
efforts to comply with all applicable rules and
regulations of the SEC and make available to its
securities holders, as soon as reasonably practicable
an earnings statement covering the period of at least
twelve months beginning after the effective date of
such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(viii) provide and cause to be maintained a
transfer agent and registrar for such Registrable
Securities from and after a date not later than the
effective date of such registration statement.
(b) If requested by the underwriter for any underwritten
offering of Registrable Securities on behalf of Waxman USA pursuant to a
registration requested under Section 2.1(a), the Company and Waxman USA will
enter into an underwriting agreement with such underwriter for such offering,
which shall be reasonably satisfactory in substance and form to the Company,
Waxman USA and the underwriter, and such agreement shall contain such
representations and warranties by the Company and Waxman USA and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities substantially to the effect and to the extent provided in Section
2.3. If the Company at any time proposes to register any of its securities under
the Securities Act (other than pursuant to a request made under Section 2.1(a)),
whether or not for sale for its own account, and such securities are to be
distributed by or through one or more underwriters, the Company will use all
reasonable efforts, if requested by Waxman USA in connection therewith pursuant
to Section 2.1(b), to arrange for such underwriters to include such Registrable
Securities among those securities to be distributed by or through such
underwriters.
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2.3 Indemnification and Contribution.
(a) In the event of any registration of any Registrable
Securities of the Company under the Securities Act on behalf of Waxman USA
pursuant to Section 2.1(a) or (b) hereof, the Company will indemnify and hold
harmless Waxman USA and its directors and officers and each other person, if
any, who controls Waxman USA within the meaning of the Securities Act (the
"Controlling Person"), against any losses, claims, damages, liabilities and
reasonable legal and other expenses to which Waxman USA or any such director or
officer or Controlling Person becomes subject under the Securities Act or
otherwise insofar as such losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) arise out of or are based upon (x)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (y) 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; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement, in reliance upon and in conformity with information furnished in
writing by Waxman USA to the Company for use in the preparation thereof; and
provided, further, that the Company shall not be liable under this Section
2.3(a) with respect to any preliminary prospectus to the extent that any such
loss, claim, damage or liability results from the fact that Waxman USA or its
representative sold securities to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of a prospectus as
then amended or supplemented.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2.1, that the Company shall have received an undertaking satisfactory to it from
Waxman USA, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.3(a)), the Company, each director of the
Company, and each officer of the Company who shall sign such registration
statement and each other person, if any, who controls the Company within the
meaning of the Securities Act, with respect to (i) any statement in or omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus included therein, or any amendment or supplement thereto,
if such statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by Waxman USA for use in such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement; or (ii) a failure to deliver a prospectus
as set forth in the last proviso to Section 2.3(a).
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving a claim
referred to in this Section 2.3,
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such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give the indemnifying party notice of the commencement of
such action or proceeding. In case any such action is brought against an
indemnified party, and the indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to appoint
counsel reasonably satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 2.3 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has expressly authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii).
(d) Contribution. If the indemnification provided for
in this Section 2.3 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages or liabilities
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 or liabilities in
such proportion as is appropriate to reflect the relative fault of such
indemnifying party and indemnified parties in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant 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 or omission or alleged omission to state 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; provided,
however, that Waxman USA shall not be required to contribute in an amount
greater than the dollar amount of the proceeds received by Waxman USA with
respect to the sale of any securities. The amount paid or payable by a party as
a result of the losses, claims, damages and liabilities referred to above shall
be deemed to include, subject to the
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limitations set forth in this Section 2.3(d), 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 2.3(d) 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.
3. Termination. This Agreement and the rights of all parties
hereto shall terminate and be of no further force and effect ten years from the
Effective Date unless terminated earlier by the written consent of each of the
parties hereto.
4. Miscellaneous.
4.1. Severability. If any term, provision, covenant,
restriction, part or portion of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, or is otherwise legally
impossible to perform, the remainder of the terms, provisions, covenants,
restrictions, parts and portions of this Agreement shall remain in full force
and effect.
4.2 Specific Enforcement. The parties hereto
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement, this being in addition to any
other remedy to which they may be entitled by law or equity.
4.3 Entire Agreement. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and this Agreement may be amended only by an agreement in writing executed by
Waxman USA and the Company.
4.4 Counterparts. This Agreement may be executed by
the parties hereto in counterparts, each of which shall be deemed an original,
but all of which together constitute one and the same instrument.
4.5 Notices. Any notice pursuant to this Agreement to
be given by any party hereto shall be sufficiently given for purposes of this
Agreement if sent by first-class mail, postage pre-paid, delivered by hand or
overnight courier or sent by facsimile, addressed as follows:
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If to the Company to:
Barnett Inc.
3333 Lenox Avenue
Jacksonville, Florida 32254
Attention: William R. Pray, President and Chief
Executive Officer
Facsimile No.: (904) 388-4566
If to Waxman USA:
Waxman USA Inc.
24460 Aurora Road
Bedford Heights, Ohio 44146
Attention: Armond Waxman, Co-Chairman of the Board
and Co-Chief Executive Officer
Facsimile No.: (216)439-8678
4.6 Waivers. Each party may waive in whole or in part
any benefit or right provided to it under this Agreement. No waiver by any party
of any default with respect to any provision, condition, requirement, or of any
benefit or right hereof shall be deemed to be a waiver of any other provision,
condition, requirement, benefit or right hereof; nor shall any delay or omission
of either party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
4.7 Headings. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
4.8 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company and Waxman USA, and their
successors and legal representatives. The rights and obligations of each party
hereunder may not be assigned.
4.9 Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
entirely within such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date set forth
above.
BARNETT INC.
By:/s/ William R. Pray
-------------------------------------
Name: William R. Pray
Title: President and Chief Executive
Officer
WAXMAN USA INC.
By: /s/ Armond Waxmond
-------------------------------------
Name: Armond Waxman
Title: Co-Chairman of the Board and
Co-Chief Executive Officer
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