EXHIBIT 10.43
Empire of Carolina, Inc.
5150 Linton Boulevard
Delray Beach, FL 33484
June 17, 1997
Pellinore Securities Corp.
745 Fifth Avenue
New York, New York 10151
Axiom Capital Management Inc.
399 Park Avenue
27th Floor
New York, New York 10022
Commonwealth Associates Inc.
733 Third Avenue
New York, New York 10018
Gentlemen:
This is to advise each of you and all purchasers of Series A Preferred
Stock of Empire Carolina, Inc. ("Empire") that Empire agrees to be bound by the
Registration Rights provisions affecting the Series A Preferred Stock that are
appended to the Supplement to the Subscription Agreement relating to the Empire
financing.
Very truly yours,
Empire Carolina, Inc.
By: /s/ Lawrence Geller
-------------------
Lawrence Geller
Vice President and General
Counsel
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[THE FOLLOWING ARE THE REGISTRATION RIGHTS PROVISIONS AFFECTING THE SERIES A
PREFERRED STOCK THAT ARE AN APPENDIX TO THE SUPPLEMENT TO THE SUBSCRIPTION
AGREEMENT AND ARE REFERENCED IN THE PRECEDING LETTER.]
APPENDIX TO SUBSCRIPTION AGREEMENT
REGISTRATION RIGHTS
Capitalized terms used in this Appendix that are not otherwise defined
are used with the meanings given to them in the Certificate of Designation for
the Series A Preferred Stock of Empire of Carolina, Inc. (the "Company") (the
"Certificate of Designation") to be purchased pursuant to the Subscription
Agreement to which this Appendix is attached.
(a) Shelf Registration. Within 180 days from the first date of issuance
of the Series A Preferred Stock, the Company shall cause to be filed a
registration statement (a "Shelf Registration") on Form S-3 or any other
appropriate form under the Securities Act of 1933 (the "Securities Act") for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
thereunder or any similar rule that may be adopted by the Securities and
Exchange Commission (the "Commission") and permitting (i) sales of shares
("Preferred Shares") of Series A Preferred Stock, both in ordinary course
brokerage or dealer transactions or in any other transfer for consideration not
involving an underwritten public offering, and (ii) the sale in such
transactions of shares of Common Stock ("Common Shares") of the Company into
which Preferred Shares may be converted ("Converted Common Shares") pursuant to
the Certificate of Designation (together, the "Registrable Securities") (and in
both cases shall register or qualify the shares to be sold in such offering
under such other securities or "blue sky" laws, if any, as would be required
pursuant to paragraph (d)(ii) hereof). Prior to the filing of the Shelf
Registration or any supplement or amendment thereto, the Company shall furnish
copies of the Shelf Registration or such amendment to one counsel designated by
HPA Associates, LLC ("HPA"), and will not file the Shelf Registration or such
amendment without the prior consent of such counsel, which consent shall not be
unreasonably withheld. The Company shall use its reasonable efforts to (1) cause
the Shelf Registration to be declared effective by the Commission as soon as
practicable after its filing with the Commission and (2) keep the Shelf
Registration continuously effective, subject to paragraph (c) below. The Company
shall, if necessary, supplement or make amendments to the Shelf Registration, if
required by the registration form used by the Company for the Shelf Registration
or by the instructions applicable to such registration form or by the Securities
Act or the rules or regulations thereunder or as may reasonably be requested by
HPA. The Company shall pay all Registration Expenses incurred in connection with
the Shelf Registration.
(b) Piggyback Registration. The following provisions apply at any time
prior to the later of June 18, 2000 and the date upon which the right of
Piggyback Registration is no longer held by any holder of the Company's Series C
Preferred Stock (or, with respect to Registrable Securities that are owned by
HPA, Charles S. Holmes
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or James J. Pinto, or any direct or indirect transferees of Registrable
Securities from them in a transaction not involving a public offering (such
parties being referred to as "HPA Parties" and such Registrable Securities as
"HPA Party Shares"), so long as HPA Party Shares are held by an HPA Party who is
an affiliate of the Company for purposes of Rule 144 (as defined below)).
Whenever the Company proposes to file a registration statement under the
Securities Act with respect to an underwritten public offering of Preferred
Shares or Common Shares by the Company for its own account or for the account of
any other holder of Preferred Shares or Common Shares or any other security
convertible into Common Shares, the Company shall give at least 30 days' written
notice before the anticipated filing date (the "Offering Notice") of such
proposed filing to each person identified on the transfer records of the Company
(a "Holder") as holding Preferred Shares that are convertible into at least
50,000 Common Shares or at least 50,000 Converted Common Shares, or Preferred
Shares and Converted Common Shares that aggregate the equivalent of 50,000
Common Shares upon conversion. Such Offering Notice shall offer all such Holders
the opportunity to register such number of Preferred Shares, Common Shares or
HPA Party Shares as each such Holder may request in writing, which request for
registration (each, a "Piggyback Registration", with the rights to registration
thereof being referred to as "Piggyback Rights") must be received by the Company
within 15 days after the Offering Notice is given. The Company shall use all
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit the Holders of the Registrable
Securities requested to be included in the registration for such offering to
include such Registrable Securities in such offering on the same terms and
conditions as the securities of the Company included therein. Notwithstanding
the foregoing, if the managing underwriter or underwriters of a proposed
underwritten offering advise the Company in writing that in its or their opinion
the number of Registrable Securities proposed to be sold in such offering
exceeds the number of Registrable Securities that can be sold in such offering
without adversely affecting the market for the Company's securities or the price
that may be obtained in such offering, the Company shall include in such
registration the number of Registrable Securities that in the opinion of such
managing underwriter or underwriters can be sold without adversely affecting the
market for the Preferred Shares or the Common Shares or the price to be received
in such offering. In such event, the number of Registrable Securities, if any,
to be offered for the accounts of Holders shall be reduced pro rata on the basis
of the relative number of any Registrable Securities requested by each such
Holder to be included in such registration to the extent necessary to reduce the
total number of Registrable Securities to be included in such offering to the
number recommended by such managing underwriter or underwriters, provided that
if any other Person has rights to a Piggyback Registration with respect to the
same underwritten public offering, the rights of the Holders to sell their
securities together with such other Persons holding Piggyback Rights shall be
cut back proportionately (in relation to the number of shares that each Person
so participating in the Piggyback Registration has requested to be included
(using Converted Common Share equivalents in a case in which a cutback is
required of a Piggyback Registration of Preferred Shares) compared to the number
of all shares with respect to which inclusion has been properly requested),
except to the extent that the instrument governing such other Piggyback Rights
specifically provides that the rights held by such other Person either take
precedence over or shall be subordinated to the Piggyback Rights held by the
Holders hereunder, it being
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understood that the rights of holders of Series A Preferred Stock hereunder take
precedence as to cutbacks over the rights of holders of Series C Preferred
Stock. The Company shall pay all Registration Expenses incurred in connection
with any Piggyback Registration.
(c) Termination of Registration Rights; Provision of Rule 144
Information. As used in this section "affiliate" has the meaning given to it in
Rule 144 under the Securities Act ("Rule 144"). The registration rights provided
hereunder shall continue so long as any Series A Shares and Converted Common
Shares remain outstanding and shall then terminate (except in the case of HPA
Party Shares), provided that (i) the Company shall be entitled to remove from
registration under paragraph (a) Preferred Shares held by Persons (other than
HPA Persons who are affiliates of the Company) who have acquired such Preferred
Shares or Converted Common Shares for consideration pursuant to a transaction
covered by the registration provided by paragraph (a), and (ii) at any time
after two years after the date of the issuance of the Preferred Shares, so long
as the Preferred Shares and Converted Common Shares are freely tradable under
Rule 144 in the hands of Persons who are not affiliates of the Company, (A) the
Company shall be entitled to remove Registrable Securities held by
non-affiliates from registration under paragraph (a) and, (B) if no HPA Person
remains an affiliate of the Company, or no HPA Person who is an affiliate of the
Company owns more than 1% of the then outstanding Preferred Shares or Common
Shares, registration of the Preferred Shares or Converted Common Shares (as
applicable) under paragraph (a) shall no longer be required. Registration may
terminate under paragraph (a) with respect to HPA Party Shares when, and to the
extent that, no HPA Person who remains an affiliate of the Company owns more
than 1% of the then outstanding Preferred Shares or Common Shares.
For a period of at least two years, and continuing while any HPA Person
remains an affiliate of the Company and continues to hold Preferred Shares or
Converted Common Shares, the Company shall be required (i) to file such reports
under the Exchange Act, or otherwise make publicly available such information,
as may be required by section (c) of Rule 144 in order for sales to be permitted
under the provisions of Rule 144 and (ii) to provide confirmation of such filing
or availability upon request to any Holder or HPA Person who seeks to rely upon
Rule 144 (other than section (k) thereof) in the sale of Preferred Shares or
Converted Common Shares.
(d) Registration Procedures. Whenever Registrable Securities are to be
registered pursuant hereto, the Company shall use its best efforts to effect the
registration of Registrable Securities in accordance with the intended method of
disposition thereof as expeditiously as practicable and, in connection with any
such request, the Company shall as expeditiously as possible:
(i) furnish to each seller of
Registrable Securities such number of copies of the registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as each seller
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may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(ii) if required, use best efforts
to register or qualify such Registrable Securities under such other securities
or "blue sky" laws of such jurisdictions as any seller reasonably requests in
writing and to do any and all other acts and things that may be reasonably
necessary or advisable to register or qualify for sale in such jurisdictions the
Registrable Securities owned by such seller; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) subject itself to taxation
in any such jurisdiction, (iii) consent to general service of process in any
such jurisdiction or (iv) provide any undertaking required by such other
securities or "blue sky" laws or make any change in its charter or by-laws that
the Board of Directors of the Company determines in good faith to be contrary to
the best interest of the Company and its stockholders;
(iii) use best efforts to cause the
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(iv) notify each seller of such
Registrable Securities at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement
contains 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,
in light of the circumstances under which they were made, not misleading, and
prepare and file with the Commission a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided, in the use of a Piggyback
Registration, that prior to the filing of such supplement or amendment, the
Company shall furnish copies thereof to the Holders whose Registrable Securities
are included in such registration, any underwriters and counsel for such
Holders, and will not file such supplement or amendment without the prior
consent of such counsel, which consent shall not be unreasonably withheld;
(v) enter into customary
agreements (including an underwriting agreement in customary form) if the
offering is an underwritten offering) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities;
(vi) make available for inspection
by any seller of Registrable Securities and any attorney, accountant or other
agent retained by any such seller (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents
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and properties of the Company (collectively, the "Records") as are reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors, employees and agents to supply all
information reasonably requested by any such Inspector in connection with such
registration statement. Records that the Company determines, in good faith, to
be confidential and that it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (i) the disclosure of such Records is, in
the reasonable judgment of any Inspector, necessary to avoid or correct a
misstatement or omission of a material fact in the registration statement or
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court or governmental agency of competent jurisdiction or required
(in the written opinion of counsel to such Holder or underwriter, which counsel
shall be reasonably acceptable to the Company) pursuant to applicable state or
federal law. Each seller of Registrable Securities shall be required to agree,
however, that it will, upon learning that disclosure of such Records are sought
by a court or governmental agency, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(vii) if such sale is pursuant to an
underwritten offering, use reasonable efforts to obtain a "cold comfort" letter
and updates thereof 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 reasonably
request; and
(viii) otherwise use its best efforts
to comply with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period of 12 months, beginning within three
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
Provided that the applicable listing requirements continue to be
satisfied, the Company shall use its best efforts to maintain the listing of the
Common Shares on the American Stock Exchange or, if such stock is delisted from
the American Stock Exchange, to provide for the listing of the Common Shares on
NASDAQ/NMS; and provided that such a listing continues to be in effect, the
Company shall cause any Converted Common Shares to be listed on the applicable
market. In the case of the Preferred Shares, if (i) Preferred Shares convertible
into at least 500,000 Common Shares have been sold pursuant to one or more
Piggyback Registrations or (ii) Holders of at least 10% of the then outstanding
Preferred Shares request the Company to make a determination whether the public
distribution and float of the Preferred Shares will qualify for such a listing
and the Company determines that the applicable standards have been met, the
Company shall use its best efforts to cause the Preferred Shares to be
registered under the Securities Exchange Act of 1934 (the "Exchange Act") and to
be listed for trading on each securities market, if any, on which the Common
Shares are listed or, with the consent of the Company (which shall not be
unreasonably withheld), on any other United States securities exchange that is
registered under the
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Exchange Act or over-the-counter market that is maintained by the National
Association of Securities Dealers, Inc.
The Company may require each seller or prospective seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such securities and other
matters as may be required to be included in the registration statement.
Upon receipt of any notice from the Company of the happening of any event
of the kind described in clause (iv), each holder of Registrable Securities
shall forthwith discontinue disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by this clause (iv) and, if so directed by the Company, such holder
shall deliver to the Company (at the Company's expense) all copies, 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 gives any such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (iv) 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 in clause (iv). Notwithstanding anything to the
contrary set forth above in this paragraph, the Company may not require the
holders of Registrable Securities to discontinue disposition of Registrable
Securities for purposes of effecting a public offering of any securities of the
Company by any of its securityholders (other than an offering made pursuant to a
registration on Form S-8). Notwithstanding the foregoing, if the Company
furnishes to the Holders a certificate signed by the Chief Financial Officer of
the Company stating that (i) in the good faith judgment of the Board of
Directors of the Company it would be significantly disadvantageous to the
Company and its stockholders for any such Shelf Registration to be amended or
supplemented and (ii) the need for such an amendment or supplement is not caused
by a proposed secondary public offering of securities of the Company by any of
its securityholders (other than an offering made pursuant to a registration on
Form S-8), the Company may defer such amending or supplementing of such Shelf
Registration for not more than 45 days and in such event the Holders shall be
required to discontinue disposition of any Registrable Securities covered by
such Shelf Registration during such period. Notwithstanding the foregoing, in
connection with any amendment or supplement required to reflect a public
offering of securities by the Company, the Company shall file such amendment or
supplement no later than the same day that it files a registration statement
relating to such offering and shall provide written notice of the filing of such
amendment or supplement to the holders of Registrable Securities promptly
following such filing.
(e) Registration Expenses. The Company shall pay all expenses incident
to its performance of or compliance with this Agreement ("Registration
Expenses"), regardless of whether such registration becomes effective including,
without
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limitation, (a) all Commission, stock exchange or market and National
Association of Securities Dealers, Inc. registration and filing fees, (b) all
fees and expenses incurred in complying with securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with "blue
sky" qualifications of the Registrable Securities), (c) all printing, messenger
and delivery expenses, (d) all fees and disbursements of the Company's
independent public accountants and counsel, (e) all fees and expenses of any
special experts retained by the Company in connection with any Piggyback
Registration pursuant to the terms of this Agreement, and (f) the fees and
disbursements of one counsel retained collectively by the Holders for a
registration; provided, however, that the Company shall not pay the costs and
expenses of any counsel, accountants or other representatives retained by the
Holders, individually or in the aggregate.
(f) Indemnification; Contribution.
(1) Indemnification
by the Company. The Company shall indemnify, to the fullest extent permitted by
law, each Holder, its officers, directors and agents and each Person, if any,
who controls such Holder (within the meaning of the Securities Act) (it being
understood that, for these purposes, an HPA Person who is an affiliate of the
Company shall be considered a Holder in respect of HPA Party Shares), against
any and all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by or contained in any information with respect to such Holder furnished
in writing to the Company by such Holder expressly for use therein or by such
Holder's failure to deliver a copy of the prospectus or any supplements thereto
after the Company has furnished such Holder with a sufficient number of copies
of the same or by the delivery of prospectuses by such Holder after the Company
notified such Holder in writing to discontinue delivery of prospectuses. The
Company also shall indemnify any underwriters of the Registrable Securities,
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.
(2) Indemnification
by Holders. In connection with any registration statement in which a Holder is
participating, each such Holder shall furnish to the Company in writing such
information and affidavits with respect to such Holder as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and agrees to indemnify, severally and not jointly, to the fullest
extent permitted by law, the Company, its officers, directors and agents and
each Person, if any, who controls the Company (within the meaning of the
Securities Act) against any and all losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact required to be
stated in any registration statement, prospectus or preliminary prospectus
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or any amendment thereof or supplement thereto or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, to the extent, but only to the
extent, that such untrue or alleged untrue statement or omission is contained in
or improperly omitted from, as the case may be, any information or affidavit
with respect to such Holder so furnished in writing by such Holder. Each Holder
also shall indemnify any underwriters of the Registrable Securities, 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 Company.
(3) Conduct of
Indemnification Proceedings. Any party that proposes to assert the right to be
indemnified hereunder shall, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties hereunder, notify each such indemnifying party
of the commencement of such action, enclosing a copy of all papers served, but
the omission so to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. If the indemnifying party assumes the defense, the indemnifying
party shall have the right to settle such action without the consent of the
indemnified party; provided, however, that the indemnifying party shall be
required to obtain such consent (which consent shall not be unreasonably
withheld) if the settlement includes any admission of wrongdoing on the part of
the indemnified party or any decree or restriction on the indemnified party or
its officers or directors; provided, further, that no indemnifying party, in the
defense of any such action, shall, except with the consent of the indemnified
party (which consent shall not be unreasonably withheld), consent to entry of
any judgment or enter into any settlement that 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 with respect to such action
against the indemnified party. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(a) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (b) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (c) a conflict or
potential conflict exists (based on advice of counsel
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to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (d) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time from
all such indemnified party or parties unless (x) the employment of more than one
counsel has been authorized in writing by the indemnifying party or parties, (y)
an indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it that are different from or in
addition to those available to the other indemnified parties or (z) a conflict
or potential conflict exists (based on advice of counsel to an indemnified
party) between such indemnified party and the other indemnified parties, in each
of which cases the indemnifying party shall be obligated to pay the reasonable
fees and expenses of such additional counsel or counsels. An indemnifying party
shall not be liable for any settlement of any action or claim effected without
its written consent (which consent shall not be unreasonably withheld).
(4) Contribution.
If the indemnification provided for herein from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then the indemnifying
party, to the extent such indemnification is unavailable, 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 that resulted in such losses, claims, damages, liabilities or
expenses. 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. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in subparagraph (3) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
If indemnification is available hereunder, the indemnifying parties shall
indemnify each indemnified party to the full extent provided in subparagraphs
(1) and (2) hereof without regard to the relative fault of said indemnifying
parties or indemnified party.
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