Exhibit 10.1
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AGREEMENT AND PLAN OF MERGER
among
SUNBEAM CORPORATION
LASER ACQUISITION CORP.
CLN HOLDINGS INC.
and
▇▇▇▇▇▇▇ (PARENT) HOLDINGS INC.
Dated as of
February 27, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1. Certain Definitions.........................................1
Section 1.2 Other Terms.................................................7
ARTICLE II
THE HOLDINGS MERGER
Section 2.1 The Holdings Merger.........................................7
Section 2.2 Closing.....................................................7
Section 2.3 Effective Time of the Holdings Merger.......................7
Section 2.4 Certificate of Incorporation................................7
Section 2.5 By-Laws.....................................................7
Section 2.6 Directors...................................................8
Section 2.7 Officers....................................................8
Section 2.8 Holdings Merger Election....................................8
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Effect on Capital Stock.....................................8
Section 3.2 Exchange of Certificates....................................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND PARENT HOLDINGS
Section 4.1 Organization and Qualification.............................10
Section 4.2 Capitalization.............................................10
Section 4.3 Authority Relative to this Agreement and the Registration
Rights Agreement...........................................10
Section 4.4 No Business Activities of Holdings and Worldwide...........10
Section 4.5 Consents and Approvals; No Violations......................11
Section 4.6 No Litigation..............................................11
Section 4.7 SEC Reports................................................11
Section 4.8 Acquisition of Shares for Investment.......................12
Section 4.9 Taxes......................................................12
Section 4.10 Affiliate Agreements.......................................13
Section 4.11 Brokers....................................................13
Section 4.12 ▇▇▇▇▇ Escrow Fund..........................................14
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER
Section 5.1 Laser Merger Sub...........................................14
Section 5.2 Authority Relative to this Agreement.......................14
Section 5.3 Consents and Approvals; No Violations......................15
Section 5.4 Acquisition of Shares for Investment.......................15
ARTICLE VI
COVENANTS
Section 6.1 Conduct of Business........................................15
Section 6.2 Reasonable Best Efforts....................................17
Section 6.3 Consents...................................................17
Section 6.4 HSR Notification...........................................18
Section 6.5 ▇▇▇▇▇ Refund...............................................18
Section 6.6 Listing Application........................................18
Section 6.7 Access to Information; Confidentiality.....................18
Section 6.8 Advice of Changes..........................................19
Section 6.9 Affiliate Agreements; Intercompany Accounts................19
Section 6.10 Registration Rights Agreement..............................19
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Sales of Laser Shares......................................19
Section 7.2 Restrictive Legend.........................................20
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE HOLDINGS MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the Holdings
Merger.....................................................20
Section 8.2 Conditions to Obligation of Holdings to Effect the Holdings
Merger.....................................................21
Section 8.3 Conditions to Obligation of Laser to Effect the Holdings
Merger.....................................................22
ARTICLE IX
TAX MATTERS
Section 9.1 Taxes......................................................22
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Section 9.2 Tax Returns................................................24
Section 9.3 Tax Claims.................................................25
Section 9.4 Assistance and Cooperation.................................26
Section 9.5 Adjustment to Merger Consideration.........................27
Section 9.6 Survival of Obligations....................................27
Section 9.7 Reorganization.............................................27
Section 9.8 Tax Sharing Agreements.....................................27
Section 9.9 Information................................................27
ARTICLE X
INDEMNIFICATION; SURVIVAL
Section 10.1 Parent Holdings' Agreement to Indemnify....................27
Section 10.2 Conditions of Indemnification With Respect to Third-Party
Claims.....................................................28
Section 10.3 Survival of Representations; Covenants.....................29
ARTICLE XI
TERMINATION
Section 11.1 Termination................................................29
Section 11.2 Effect of Termination......................................30
ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices....................................................30
Section 12.2 Amendment..................................................31
Section 12.3 Extension; Waiver..........................................31
Section 12.4 Assignment.................................................31
Section 12.5 Entire Agreement...........................................31
Section 12.6 Parties in Interest........................................31
Section 12.7 Expenses...................................................31
Section 12.8 Governing Law..............................................32
Section 12.9 Counterparts...............................................32
Section 12.10 Headings...................................................32
Section 12.11 Further Assurances.........................................32
Section 12.12 Specific Performance.......................................32
Section 12.13 Certain Terms..............................................32
Section 12.14 Interpretation.............................................32
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
February 27, 1998, among Sunbeam Corporation, a Delaware corporation ("Laser"),
Laser Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Laser ("Laser Merger Sub"), Coleman (Parent) Holdings Inc., a Delaware
corporation ("Parent Holdings"), and CLN Holdings Inc. ("Holdings"), a Delaware
corporation and a wholly owned subsidiary of Parent Holdings.
WHEREAS, the Boards of Directors of Laser, Laser Merger Sub,
Parent Holdings and Holdings deem it advisable and in the best interests of
their respective stockholders that Laser Merger Sub merge with and into Holdings
(the "Holdings Merger"), and such Boards of Directors have approved the Holdings
Merger upon the terms and conditions set forth herein;
WHEREAS, Parent Holdings, as the sole stockholder of Holdings,
and Laser, as the sole stockholder of Laser Merger Sub, have approved this
Agreement and the transactions contemplated hereby;
WHEREAS, at the Closing (as hereinafter defined), Laser and
Parent Holdings shall enter into a registration rights agreement (the
"Registration Rights Agreement") relating to the registration of the Laser
Shares (as hereinafter defined) issuable to Parent Holdings in the Holdings
Merger, in the form of Exhibit A hereto;
WHEREAS, for United States federal income tax purposes, it is
intended that the Holdings Merger provided for herein shall qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), and that this Agreement shall constitute a
plan of reorganization; and
WHEREAS, Laser, Laser Merger Sub and Holdings desire to make
certain representations, warranties, covenants and agreements in connection with
the Holdings Merger and also to prescribe certain conditions to the Holdings
Merger.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1. Certain Definitions. As used in this Agreement,
the following terms shall have the meanings set forth or as referenced below:
"1998 Notes" shall have the meaning set forth in Section
4.4(a) hereof.
"Affiliate" shall mean, as to any Person (as hereinafter
defined), any other Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. The term "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as applied to any Person, means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
other ownership interest, by contract or otherwise.
"Affiliate Agreements" shall have the meaning set forth in
Section 4.10 hereof.
"Agreement" shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the terms hereof.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banks in the City of New York are authorized or
obligated by law or executive order to close.
"Cash Payment" shall have the meaning set forth in Section
3.1(a) hereof.
"Certificate of Incorporation" shall have the meaning set
forth in Section 2.4 hereof.
"Certificate of Merger" shall have the meaning set forth in
Section 2.3 hereof.
"Closing" shall mean the closing of the transactions
contemplated by this Agreement, as provided for in Section 2.2 hereof.
"Closing Date" shall have the meaning set forth in Section 2.2
hereof.
"Code" shall have the meaning set forth in the recitals
hereof.
"Company" shall mean The ▇▇▇▇▇▇▇ Company, Inc., a Delaware
corporation.
"Company Common Stock" shall mean the common stock, par value
$.01 per share, of the Company.
"Company Merger" shall mean the consummation of the merger
contemplated by the Company Merger Agreement.
"Company Merger Agreement" shall mean the Agreement and Plan
of Merger among Laser, Merger Sub, and the Company, dated as of the date hereof.
"Competition Laws" shall mean foreign statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines, and other
foreign laws that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization, lessening of competition
or restraint of trade.
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"Confidentiality Agreements" shall have the meaning set forth
in Section 6.7 hereof.
"Consents" shall mean any consent, approval, waiver,
authorization or permit of, or to make any filing with or notification to, any
Governmental Entity or third party.
"Contract" shall mean any note, bond, mortgage, indenture,
license, contract, or other agreement or other instrument or obligation.
"Credit Suisse First Boston" shall mean Credit Suisse First
Boston Corporation, the Company's financial advisor.
"Damages" shall have the meaning set forth in Section 10.1(a)
hereof.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Filed Holdings SEC Reports" shall have the meaning set forth
in Section 4.7(b) hereof.
"Filed Worldwide SEC Reports" shall have the meaning set forth
in Section 4.7(b).
"GAAP" shall mean United States generally accepted accounting
principles and practices in effect from time to time, consistently applied.
"Governmental Entity" shall mean any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency.
"Holdings" shall have the meaning set forth in the recitals
hereof.
"Holdings Common Stock" shall mean the common stock, par value
$1.00, of Holdings.
"Holdings Disclosure Schedule" shall mean the disclosure
schedule being delivered by Holdings concurrently with the execution of this
Agreement.
"Holdings Effective Time" shall have the meaning set forth in
Section 2.3 hereof.
"Holdings Material Adverse Effect" shall mean a material
adverse effect on the business, results of operation or financial condition of
Holdings and its subsidiaries, taken as a whole.
"Holdings Merger" shall have the meaning set forth in the
recitals hereof.
"Holdings SEC Reports" shall have the meaning set forth in
Section 4.7(a) hereof.
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"Holdings Shares" shall have the meaning set forth in Section
4.2(a).
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"Indebtedness" of any Person at any date shall include (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person that is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations of such Person
in respect of acceptances issued or created for the account of such Person, (d)
all liabilities secured by any Lien (as hereinafter defined) on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, and (e) all direct or indirect guarantees of any
of the foregoing for the benefit of another Person.
"Indemnifying Party" shall have the meaning set forth in
Section 9.2(c) hereof.
"Indenture" shall mean the Indenture between Holdings, as
successor to ▇▇▇▇▇▇▇ Escrow Corp., and First Trust National Association dated
May 20, 1997 relating to the Notes.
"IRS" shall mean the Internal Revenue Service of the United
States.
"Laser" shall have the meaning set forth in the recitals
hereof.
"Laser Common Stock" shall mean the common stock, par value
$.01 per share, of Laser.
"Laser Designees" shall have the meaning set forth in Section
8.3(d) hereof.
"Laser Group" shall have the meaning set forth in Section
10.1(a) hereof.
"Laser Material Adverse Effect" shall mean a material adverse
effect on the business, results of operation or financial condition of Laser and
its subsidiaries, taken as a whole.
"Laser Merger Sub" shall have the meaning set forth in the
recitals hereof.
"Laser Merger Sub Common Stock" shall mean common stock, par
value $.01 per share, of Laser Merger Sub.
"Laser Shares" shall have the meaning set forth in the first
clause of Section 3.1 hereof.
"Laws" shall mean any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, judgment or decree, administrative
order or decree, administrative or judicial decision, and any other executive or
legislative proclamation.
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"Liens" shall mean any lien, security interest, mortgage,
pledge, charge or similar encumbrance.
"▇▇▇▇▇" shall mean the Liquid Yield Option(TM) Notes due 2013
of Worldwide.
"▇▇▇▇▇ Escrow Fund" shall mean the funds held in the escrow
account established in connection with the redemption and exchange of the ▇▇▇▇▇.
"Mafco Demand Note" shall mean the demand note issued by an
Affiliate of Parent Holdings, and held by Worldwide on the date hereof, in
connection with the Tax Sharing Arrangement among certain Affiliates of Parent
Holdings.
"Merger Consideration" shall have the meaning set forth in
Section 3.1(a)(i) hereof.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Laser's financial advisor.
"Notes" shall mean the Senior Secured First Priority Discount
Notes due 2001, Senior Secured Second Priority Discount Notes due 2001, Senior
Secured First Priority Discount Exchange Notes due 2001, and Senior Secured
Second Priority Discount Exchange Notes due 2001 of Holdings, as successor to
▇▇▇▇▇▇▇ Escrow Corp.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Parent Holdings" shall have the meaning set forth in the
recitals hereof.
"Person" shall mean an individual, a corporation, a
partnership, an association, a trust or other entity or organization.
"Pre-Closing Period" shall mean any taxable year or period
that ends on or before the Closing Date and, with respect to any Straddle
Period, the portion of such Straddle Period deemed to end on and include the
Closing Date.
"Post-Closing Period" shall mean any taxable year or period
that begins after the Closing Date and, with respect to any Straddle Period, the
portion of such Straddle Period deemed to begin after the Closing Date.
"Registration Rights Agreement" shall have the meaning set
forth in the recitals hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Straddle Period" shall mean any taxable year or period
beginning before and ending after the Closing Date.
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"subsidiary" shall mean, with respect to any party, any
corporation or other organization, whether incorporated or unincorporated, of
which (i) such party or any other subsidiary of such party is a general partner
or (ii) at least 50% of the securities or other interests having by their terms
ordinary voting power to elect a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other
organization or at least 50% of the value of the outstanding equity is directly
or indirectly owned or controlled by such party or by any one or more of its
subsidiaries, or by such party and one or more of its subsidiaries.
"Surviving Corporation" shall have the meaning set forth in
Section 2.1 hereof.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable")
shall mean:
(i) any federal, state, local or foreign net
income, gross income, receipts, windfall profit, severance, property,
production, sales, use, license, excise, franchise, employment,
payroll, withholding, alternative or add-on minimum, ad valorem,
transfer, stamp, or environmental tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or
additional amount imposed by any Governmental Entity; and
(ii) any liability for the payment of amounts with
respect to payments of a type described in clause (i) as a result of
being a member of an affiliated, consolidated, combined or unitary
group, or as a result of any obligation under any Tax Sharing
Arrangement or Tax indemnity arrangement.
"Tax Claim" shall have the meaning set forth in Section 9.3(b)
hereof.
"Tax Proceeding" shall have the meaning set forth in Section
9.3(a) hereof.
"Tax Return" shall mean any return, report or statement
required to be filed with respect to any Tax (including any attachments
thereto), including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax.
"Tax Sharing Arrangement" shall mean any written or unwritten
agreement or arrangement for the allocation or payment of Tax liabilities or
payment for Tax benefits with respect to a consolidated, combined or unitary Tax
Return.
"Termination Date" shall have the meaning set forth in Section
11.1(b) hereof.
"Third-Party Claims" shall have the meaning set forth in
Section 10.2 hereof.
"Transfer" shall have the meaning set forth in Section 7.1
hereof.
"Treasury Regulations" shall mean the regulations promulgated
by the Treasury Department with respect to the Code.
"Worldwide" shall mean ▇▇▇▇▇▇▇ Worldwide Corporation, a
Delaware corporation and a wholly owned subsidiary of Holdings.
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"Worldwide Common Stock" shall mean the common stock, par
value $1.00 per share, of Worldwide.
"Worldwide SEC Reports" shall have the meaning set forth in
Section 4.7(b) hereof.
"Worldwide Shares" shall have the meaning set forth in Section
4.2(b).
Section 1.2. Other Terms. Other terms may be defined elsewhere
in the text of this Agreement and, unless otherwise indicated, shall have such
meaning throughout this Agreement.
ARTICLE II
THE HOLDINGS MERGER
Section 2.1. The Holdings Merger. Upon the terms and subject
to the conditions set forth herein, and in accordance with the DGCL, at the
Holdings Effective Time (as defined in Section 2.3 hereof), Laser Merger Sub
shall be merged with and into Holdings. Following the Holdings Effective Time,
Holdings shall continue as the surviving corporation (the "Surviving
Corporation"), and the separate corporate existence of Laser Merger Sub shall
cease. The Holdings Merger shall have the effects set forth in Section 259 of
the DGCL.
Section 2.2. Closing. The closing of the Holdings Merger (the
"Closing") will take place at 10:00 a.m. on a date to be specified by the
parties (the "Closing Date"), which (subject to satisfaction or waiver of the
conditions set forth in Article VIII) shall be no later than the third NYSE
trading day after satisfaction or waiver of the conditions set forth in Section
8.1, at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, unless another time, date or place is agreed
to in writing by the parties hereto.
Section 2.3. Effective Time of the Holdings Merger. The
Holdings Merger shall become effective on the date and at the time at which a
properly executed certificate of merger (the "Certificate of Merger") is duly
filed with the Secretary of State of the State of Delaware. The Certificate of
Merger shall be filed as soon as practicable on or after the Closing Date. When
used in this Agreement, the term "Holdings Effective Time" shall mean the date
and time on which the Certificate of Merger is so filed.
Section 2.4. Certificate of Incorporation. From and after the
Holdings Effective Time, the certificate of incorporation of Holdings as in
effect at the Holdings Effective Time (the "Certificate of Incorporation") shall
be the certificate of incorporation of the Surviving Corporation until amended
as provided by the DGCL and the Certificate of Incorporation.
Section 2.5. By-Laws. From and after the Holdings Effective
Time, the by-laws of Laser Merger Sub as in effect at the Holdings Effective
Time shall be the by-laws of the Surviving Corporation until amended as provided
by the DGCL, the Certificate of Incorporation of the Surviving Corporation and
the terms thereof.
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Section 2.6. Directors. The directors of Laser Merger Sub at
the Holdings Effective Time shall be the initial directors of the Surviving
Corporation and shall hold office from the Holdings Effective Time until their
respective successors are duly elected or appointed and qualify in the manner
provided in the Certificate of Incorporation and by-laws of the Surviving
Corporation or as otherwise provided by Law.
Section 2.7. Officers. The officers of Laser Merger Sub at the
Holdings Effective Time shall be the initial officers of the Surviving
Corporation and shall hold office from the Holdings Effective Time until their
respective successors are duly elected or appointed and qualify in the manner
provided in the Certificate of Incorporation and by-laws of the Surviving
Corporation, or as otherwise provided by Law.
Section 2.8. Holdings Merger Election. Notwithstanding the
foregoing, at any time prior to the Holdings Effective Time, Holdings may elect,
in its sole discretion, upon notice to Laser, to effectuate the Holdings Merger
such that Holdings will be merged with and into Laser Merger Sub, with Laser
Merger Sub as the "Surviving Corporation" for all purposes hereunder. In such
event, the parties hereto shall execute an appropriate amendment to this
Agreement to reflect the foregoing.
ARTICLE III
CONVERSION OF SHARES
Section 3.1. Effect on Capital Stock. At the Holdings
Effective Time, by virtue of the Holdings Merger and without any action on the
part of any holder thereof:
(a) Conversion of Holdings Common Stock.
(i) The Holdings Shares shall be converted into the
right to receive an aggregate of (A) 14,099,749 fully paid and
nonassessable shares of Laser Common Stock (the "Laser Shares") and (B)
$159,956,756 in cash, without interest thereon (the "Cash Payment" and,
together with the Laser Shares, the "Merger Consideration").
(ii) If, prior to the Holdings Effective Time,
Laser shall (A) pay a dividend in, subdivide, combine into a smaller
number of shares or issue by reclassification of its shares, any shares
of Laser Common Stock, the number of Laser Shares to be issued pursuant
to Section 3.1(a)(i) hereof shall be adjusted appropriately or (B) pay
an extraordinary dividend (other than regular quarterly dividend
payments, consistent with past practice), whether in cash or property,
the amount of the Cash Payment shall be adjusted appropriately, such
that the aggregate amount of cash, or if a dividend shall have been
paid in other property, cash and other property, shall be equal to that
which would have been received had the dividend been paid following the
Holdings Effective Time at a time when the Laser Shares were already
issued to and the Cash Payment made to Parent Holdings.
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(iii) The shares of Holdings Common Stock converted
in accordance with paragraph (i) of this Section 3.1(a) shall no longer
be outstanding and shall automatically be cancelled and retired and
shall cease to exist, and Parent Holdings, as the holder thereof, shall
cease to have any rights with respect thereto, except the right to
receive the Merger Consideration.
(b) Conversion of Laser Merger Sub Common Stock. Each share of
Laser Merger Sub Common Stock issued and outstanding immediately prior to the
Holdings Effective Time shall be converted into and become one fully paid and
nonassessable share of common stock, par value $1.00 per share, of the Surviving
Corporation.
(i) Exchange of Certificates. At the Closing,
Parent Holdings shall surrender certificates representing the Holdings
Shares, and Laser shall deliver or cause to be delivered to Parent
Holdings a duly executed stock certificate or stock certificates
representing the Laser Shares, and the Cash Payment, in immediately
available funds by wire transfer to an account specified in writing by
Parent Holdings at least one day prior to the Closing Date. In
connection with the delivery by Laser of the Laser Shares, Laser shall
utilize all shares of Laser Common Stock held by Laser as treasury
shares before issuing any authorized but unissued shares of Laser
Common Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND PARENT HOLDINGS
Holdings and Parent Holdings hereby represent and warrant to
Laser as follows:
Section 4.1. Organization and Qualification.
(a) Each of Holdings and Worldwide is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power to carry on its business as it is now being
conducted.
Section 4.2. Capitalization.
(a) The authorized capital stock of Holdings consists of 1,000
shares of Holdings Common Stock (the "Holdings Shares"), all of which are issued
and outstanding and beneficially owned by Parent Holdings. All of the issued and
outstanding shares of Holdings Common Stock are validly issued, fully paid and
nonassessable and free of preemptive rights. Except as set forth above, there
are no other shares of capital stock of Holdings issued or outstanding nor any
options, warrants, subscriptions, calls, rights, convertible securities or other
agreements or commitments obligating Holdings to issue, transfer, sell, redeem,
repurchase or otherwise acquire any shares of its capital stock or securities.
(b) The authorized capital stock of Worldwide consists of
1,000 shares of Worldwide Common Stock (the "Worldwide Shares"), all of which
are issued and outstanding and beneficially owned by Holdings, free and clear of
all Liens, other than the pledge in connec-
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tion with the Notes. All of the issued and outstanding shares of Worldwide
Common Stock are validly issued, fully paid and nonassessable and free of
preemptive rights. Except as set forth above, there are no other shares of
capital stock of Worldwide issued or outstanding nor any options, warrants,
subscriptions, calls, rights, convertible securities or other agreements or
commitments obligating Worldwide to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities.
Section 4.3. Authority Relative to this Agreement and the
Registration Rights Agreement. Each of Holdings and Parent Holdings has the
requisite corporate power and authority to execute and deliver this Agreement
and, if a party thereto, the Registration Rights Agreement, to perform its
obligations hereunder and, if a party thereto, thereunder and to consummate the
transactions contemplated hereby and, if a party thereto, thereby. The
execution, delivery and performance of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all necessary corporate action on the
part of Holdings and Parent Holdings, and no other corporate action on the part
of Holdings or Parent Holdings (including on the part of their respective
stockholders) is required to authorize the execution, delivery and performance
hereof and thereof and the consummation of the transactions contemplated hereby
and thereby. This Agreement has been duly executed and delivered by each of
Parent Holdings and Holdings and, assuming that it constitutes a valid and
binding agreement of Laser and Laser Sub, constitutes the valid and binding
obligation of Parent Holdings and Holdings enforceable against Parent Holdings
and Holdings in accordance with its terms, except that such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium or other laws
now or hereafter in effect relating to or limiting creditors' rights generally
and the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought. Prior to the
Holdings Effective Time, the Registration Rights Agreement will have been duly
executed and delivered by Parent Holdings and, assuming that it constitutes the
valid and binding agreement of Laser, will constitute the valid and binding
obligation of Parent Holdings enforceable against Parent Holdings in accordance
with its terms, except that such enforcement may be subject to any bankruptcy,
insolvency, reorganization, moratorium or other laws now or hereafter in effect
relating to or limiting creditors' rights generally and the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought.
Section 4.4. No Business Activities of Holdings and Worldwide.
(a) Since its formation, Holdings has engaged in no business
activities or operations, other than in connection with holding the Worldwide
Shares and the stock of its predecessor corporation and in connection with the
Senior Secured Discount Notes due 1998 of Holdings and the Series B Senior
Secured Discount Notes due 1998 of Holdings (collectively, the "1998 Notes") and
the Notes. Holdings has no material assets other than Worldwide Common Stock,
and has no liabilities other than under the Notes and other de minimis
liabilities. Worldwide is the beneficial owner of 44,067,520 shares of Company
Common Stock, free and clear of all Liens, other than the pledge pursuant to the
▇▇▇▇▇ and the Notes.
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(b) Since its formation, Worldwide has engaged in no business
activities or operations, other than in connection with holding shares of
Company Common Stock and in connection with the 1998 Notes, the Notes and the
▇▇▇▇▇. Worldwide has no material assets other than the Company Common Stock
(other than, as of the date hereof, the Mafco Demand Note and the ▇▇▇▇▇ Escrow
Fund), and has no liabilities other than under the ▇▇▇▇▇, the Notes and other de
minimis liabilities.
Section 4.5. Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange Act,
Competition Laws and state securities or blue sky Laws, no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity is
necessary for the consummation by Parent Holdings or Holdings of the
transactions contemplated by this Agreement, except for such filings, permits,
authorizations, consents or approvals the failure of which to be made or
obtained would not individually or in the aggregate (i) have a Holdings Material
Adverse Effect or (ii) delay in any material respect or prevent the consummation
of any of the transactions contemplated by this Agreement. Except as set forth
on Section 4.5 of the Holdings Disclosure Schedule, neither the execution and
delivery of this Agreement by Parent Holdings or Holdings, nor the consummation
by Parent Holdings or Holdings of the transactions contemplated hereby, nor
compliance by Parent Holdings or Holdings with any of the provisions hereof,
will (a) conflict with or result in any breach of any provisions of the
certificate of incorporation or by-laws of Parent Holdings, Holdings or
Worldwide; (b) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any Contract or of any license, franchise, permit,
concession, certificate of authority, order, approval, application or
registration of, from or with any Governmental Entity to which Parent Holdings,
Holdings or Worldwide is a party or by which any of them or any of their
properties or assets may be bound; or (c) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Holdings, Parent Holdings or
Worldwide or any of their properties or assets, except in the case of clauses
(b) and (c) for violations, breaches or defaults which would not individually or
in the aggregate have a Holdings Material Adverse Effect.
Section 4.6. No Litigation. As of the date hereof, there is no
suit, action, proceeding or investigation pending against or affecting Holdings
or Worldwide.
Section 4.7. SEC Reports.
(a) Holdings has filed all reports, forms, registrations,
schedules, statements and other documents required to be filed by it with the
SEC since January 1, 1997 (the "Holdings SEC Reports"). As of their respective
dates, the Holdings SEC Reports complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the applicable rules and regulations promulgated thereunder. Except to the
extent that information contained in any Filed Holdings SEC Report has been
revised, amended or superseded by a later Filed Holdings SEC Report, none of the
Filed Holdings SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which
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they were made, not misleading, except that no representation or warranty
is made herein with respect to any information relating to the Company and
its subsidiaries. For purposes of this Agreement, the Holdings SEC Reports filed
and publicly available prior to the date of this Agreement (as revised, amended
or superseded by the Holdings SEC Reports filed and publicly available prior to
the date of this Agreement) are hereinafter referred to as the "Filed Holdings
SEC Reports."
(b) Worldwide has filed all reports, forms, registrations,
schedules, statements and other documents required to be filed by it with the
SEC since January 1, 1997 (the "Worldwide SEC Reports"). As of their respective
dates, the Worldwide SEC Reports complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the applicable rules and regulations promulgated thereunder. Except to the
extent that information contained in any Filed Worldwide SEC Report has been
revised, amended or superseded by a later Filed Worldwide SEC Report, none of
the Filed Worldwide SEC Reports, when filed, contained any untrue statement of a
material fact or omitted 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, except that no
representation or warranty is made herein with respect to any information
relating to the Company and its subsidiaries. For purposes of this Agreement,
the Worldwide SEC Reports filed and publicly available prior to the date of this
Agreement (as amended, revised or superseded by the Worldwide SEC Reports filed
and publicly available prior to the date of this Agreement) are hereinafter
referred to as the "Filed Worldwide SEC Reports."
Section 4.8. Acquisition of Shares for Investment. Parent
Holdings is not acquiring the Laser Shares with any present intention of
distributing or selling any of such Laser Shares in violation of federal or
state securities laws.
Section 4.9. Taxes.
(a) Except as would not have a Holdings Material Adverse
Effect or as set forth on Section 4.9 of the Holdings Disclosure Schedule:
(i) Each of Holdings and Worldwide (A) has filed
(or there has been filed on its behalf) with the appropriate
Governmental Entities all Tax Returns required to be filed by it, and
all such Tax Returns are true, correct and complete and (B) has paid
all Taxes due by it;
(ii) There are no outstanding waivers in writing or
comparable consents regarding the application of any statute of
limitations in respect of Taxes of Holdings or Worldwide;
(iii) There is no action, suit, investigation,
audit, claim or assessment pending or proposed in writing or threatened
in writing with respect to Taxes of Holdings or Worldwide and to the
best of Holdings' knowledge, no basis exists therefor;
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(iv) There are no Liens for Taxes upon the assets
of Holdings or Worldwide except Liens relating to current Taxes not yet
due;
(v) All Taxes which Holdings or Worldwide are
required by law to withhold or to collect for payment have been duly
withheld and collected, and have been paid or accrued, reserved against
and entered on the books of Holdings in accordance with GAAP; and
(vi) No power of attorney which is currently in
force has been granted by or with respect to Holdings or Worldwide with
respect to any matter relating to Taxes.
(b) Except as would not have a Holdings Material Adverse
Effect, Holdings and its subsidiaries have previously delivered or made
available to Laser (and its representatives) complete and accurate copies of:
(i) all audit reports, letter rulings, technical
advice memoranda relating to United States federal, state, local and
foreign Taxes due from or with respect to Holdings or its subsidiaries;
(ii) United States federal Tax Returns (to the
extent that such Tax Returns relate to Holdings and its subsidiaries),
and those state, local or foreign Tax Returns filed by (or on behalf
of) Holdings or any of its subsidiaries (to the extent that such Tax
Returns relate to Holdings and its subsidiaries) (including, in each
case, workpapers related to such Tax Returns);
(iii) any closing agreements entered into by
Holdings or any of its subsidiaries with any taxing authority, in each
case existing on the date hereof; and
(iv) any Tax Sharing Arrangements and Tax indemnity
arrangements to which Holdings or any of its subsidiaries was a party
at any time prior to the Closing Date. Holdings and its subsidiaries
will deliver or make available to Laser (and its representatives) all
similar materials for all matters arising after the date hereof.
Section 4.10. Affiliate Agreements. Section 4.10 of the
Holdings Disclosure Schedule sets forth a true and complete list of all
agreements, Contracts, arrangements, payables, obligations and understandings
between Holdings or any of its subsidiaries, on the one hand, and Parent
Holdings or any of its Affiliates (other than Holdings or its subsidiaries), on
the other hand (the "Affiliate Agreements").
Section 4.11. Brokers. No broker, investment banker or other
person, other than Credit Suisse First Boston, the Company's financial advisor,
the fees and expenses of which will be paid by the Company (as reflected in an
agreement between Credit Suisse First Boston and the Company, a copy of which
has been furnished to Laser), is entitled to any broker's, finder's or other
similar fee or commission in connection with the transactions contemplated by
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this Agreement based upon arrangements made by or on behalf of the Company or
any of its Affiliates.
Section 4.12. ▇▇▇▇▇ Escrow Fund. The ▇▇▇▇▇ Escrow Fund is
sufficient to fund the redemption, exchange or other retirement in full of the
▇▇▇▇▇ and related expenses.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER
Laser hereby makes the same representations and warranties to
Parent Holdings and Holdings as the representations and warranties made by Laser
to the Company in the Company Merger Agreement, and also represents and warrants
to Parent Holdings and Holdings as follows:
Section 5.1. Laser Merger Sub. Laser Merger Sub is a
corporation duly organized, validly existing and in good standing under the Laws
of the State of Delaware. Laser Merger Sub is a newly incorporated company
formed solely for purposes of consummating the transactions contemplated by this
Agreement and has engaged in no activity other than as provided in, or
contemplated by, this Agreement. The authorized capital stock of Laser Merger
Sub consists of 1,000 shares of Laser Merger Sub Common Stock, all of which are
validly issued, fully paid and nonassessable and free of preemptive rights and
are owned by Laser. Except as set forth above there are no shares of capital
stock of Laser Merger Sub issued or outstanding or any options, warrants,
subscription, calls, rights, convertible securities or other agreements or
commitments obligating Laser Merger Sub to issue, transfer, sell, redeem,
repurchase or otherwise acquire any shares of its capital stock or securities.
Section 5.2. Authority Relative to this Agreement. Each of
Laser and Laser Merger Sub has the corporate power and authority to execute and
deliver this Agreement and, if a party thereto, the Registration Rights
Agreement, to perform its obligations hereunder and, if a party thereto,
thereunder and to consummate the transactions contemplated hereby and, if a
party thereto, thereby. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement, and the consummation of the
transactions contemplated hereby, thereby and by the Company Merger Agreement,
have been duly authorized by all necessary corporate action on the part of Laser
and Laser Merger Sub and no other corporate action on the part of Laser or Laser
Merger Sub (including on the part of their respective stockholders) is required
to authorize the execution, delivery and performance hereof or thereof and the
consummation of the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered by Laser and Laser Merger Sub and
constitutes the valid and binding obligation of Laser and Laser Merger Sub,
assuming it is the valid and binding obligation of Parent Holdings and Holdings,
enforceable against Laser and Laser Merger Sub in accordance with its terms,
except that such enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and other forms of equitable relief may be
subject to equitable defenses and the discretion of the court before which any
proceedings therefore may be brought. Prior to the Holdings Effective Time, the
Registra-
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tion Rights Agreement will have been duly executed and delivered by Laser and,
assuming that it constitutes the valid and binding agreement of Parent Holdings,
will constitute the valid and binding obligation of Laser enforceable against
Laser in accordance with its terms, except that such enforcement may be subject
to any bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or limiting creditors' rights generally and the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought.
Section 5.3. Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange Act,
Competition Laws and state securities or blue sky Laws, no filing with, and no
permit, authorization, consent or approval of, any governmental or regulatory
authority is necessary for the consummation by Laser and Laser Merger Sub of the
transactions contemplated by this Agreement, except for such filings, permits,
authorizations, consents or approvals the failure of which to be made or
obtained would not (i) individually or in the aggregate have a Laser Material
Adverse Effect or (ii) delay in any material respect or prevent the consummation
of any of the transactions contemplated by this Agreement. Neither the execution
and delivery of this Agreement by Laser and Laser Merger Sub nor the
consummation by Laser and Laser Merger Sub of the transactions contemplated
hereby, nor compliance by Laser and Laser Merger Sub with any of the provisions
hereof, will (a) conflict with or result in any breach of any provisions of the
certificate of incorporation or by-laws of Laser or Laser Merger Sub; (b) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any Contract or of any license, franchise, permit, concession, certificate of
authority, order, approval, application or registration of, from or with any
Governmental Entity to which Laser or Laser Merger Sub is a party or by which
either of them or any of their properties or assets may be bound; or (c) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
Laser, Laser Merger Sub or any of their properties or assets, except, in the
case of clauses (b) and (c), for violations, breaches or defaults which would
not individually or in the aggregate have a Laser Material Adverse Effect.
Section 5.4. Acquisition of Shares for Investment. Laser is
acquiring the Holdings Shares for its own account for investment purposes only
and not with a view toward or for a sale in connection with, any distribution
thereof, or with any present intention of distributing or selling any of such in
violation of federal or state securities laws.
ARTICLE VI
COVENANTS
Section 6.1. Conduct of Business. Except as expressly
permitted by this Agreement or with the prior written consent of Laser, during
the period from the date of this Agreement to the Holdings Effective Time,
Holdings shall and shall cause Worldwide to conduct its business only in the
ordinary course consistent with past practice, except that Holdings and
Worldwide shall be permitted (but not required) to (i) effect the merger of
Worldwide with
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Holdings, and (ii) take all action necessary in connection with the redemption
or exchange of the ▇▇▇▇▇ and payment of any amounts thereunder and distribution
to Parent Holdings from the ▇▇▇▇▇ Escrow Fund of any excess thereof. Without
limiting the generality of the foregoing, and except as otherwise expressly
permitted by this Agreement, during the period from the date of this Agreement
through the Holdings Effective Time, Holdings shall not and shall cause
Worldwide not to, without the prior written consent of Laser:
(a) declare, set aside or pay any dividend or other
distribution (whether in cash, securities or property or any combination
thereof) in respect of any class or series of its capital stock, other than in
respect of the ▇▇▇▇▇ Escrow Fund or the Mafco Demand Note;
(b) settle or compromise any Tax liability or agree to any
adjustment of any Tax attribute or make any election with respect to its Taxes
other than in the ordinary course of business;
(c) amend its certificate of incorporation or by-laws;
(d) acquire by merging or consolidating with, or by purchasing
a substantial portion of the assets or securities of, or by any other manner,
any corporation, partnership or other entity;
(e) create, incur, assume or guarantee any Indebtedness;
(f) except as otherwise required by Law or GAAP, change any of
the accounting or Tax principles, practices or methods used by Holdings or
Worldwide or fail to maintain the accounts, books and records of Holdings or
Worldwide in the usual, regular and ordinary manner on a basis consistently
applied;
(g) make any payments, loans, advances or other distributions
to, or enter into any transaction, agreement or arrangement with, any of its
Affiliates, officers, directors, or stockholders or it or its Affiliates or any
associates or family members of any of the foregoing, or make any changes in or
modify any of the Affiliate Agreements, other than in the ordinary course of
business consistent with past practice or as required by the Affiliate
Agreements, other than in respect of the ▇▇▇▇▇ Escrow Fund or the Mafco Demand
Note;
(h) adjust, split, combine, subdivide or reclassify any shares
of its capital stock;
(i) issue, sell, deliver, transfer, repurchase, redeem,
acquire or pledge or authorize or propose the issuance, sale, delivery,
transfer, repurchase, redemption, acquisition or pledge of shares of capital
stock of any class or series, or any securities (other than the ▇▇▇▇▇)
convertible into capital stock of any class or series, or grant or enter into
any rights, warrants, options, agreements or commitments with respect to the
issuance of such capital stock or convertible securities;
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(j) take any action that would make any representation or
warranty of Parent Holdings or Holdings contained in this Agreement untrue or
incorrect in any material respect and which could reasonably be expected to
prevent the satisfaction of any condition to closing set forth in Article VIII
hereof or otherwise prevent or materially delay the consummation of the
transactions contemplated by this Agreement; or
(k) enter into any agreement or commitment to take any of the
foregoing actions.
Section 6.2. Reasonable Best Efforts.
(a) Upon the terms and subject to the conditions of this
Agreement, each of the parties hereto agrees to, and Holdings agrees to cause
Worldwide and the Company and its subsidiaries to, use reasonable best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to consummate and
make effective the transactions contemplated by this Agreement and the Company
Merger Agreement, as applicable, as promptly as practicable (including
satisfaction, but not waiver, of the conditions set forth in Article VIII hereof
and Article VIII of the Company Merger Agreement).
(b) Laser shall perform all of its obligations under the
Company Merger Agreement in accordance with their terms.
Section 6.3. Consents.
(a) Without limiting the generality of Section 6.2(a) hereof,
each of the parties hereto shall, and Holdings shall and shall cause Worldwide
and the Company and its subsidiaries to, use reasonable best efforts to obtain
all Consents of all Governmental Entities and, to the extent that the failure to
obtain such Consents would have a Holdings Material Adverse Effect or a Laser
Material Adverse Effect, as applicable, all third parties necessary in
connection with the consummation of the transactions contemplated by this
Agreement and the Company Merger Agreement prior to the Holdings Effective Time.
Notwithstanding the foregoing, none of the parties hereto nor Worldwide nor the
Company or any of its subsidiaries shall have any obligation to pay any fee to
any third party (other than filing or similar fees payable to Governmental
Entities) for the purpose of obtaining any Consent or any costs and expenses of
any third party resulting from the process of obtaining such Consents. Each of
the parties hereto shall make or cause to be made all filings and submissions
under laws and regulations applicable to it as may be required for the
consummation of the transactions contemplated by this Agreement.
(b) Notwithstanding the foregoing, nothing in this Agreement
shall be deemed to require any party hereto to enter into any agreement with any
Governmental Entity which requires, or to consent to any order, decree or
judgment which requires, such party to hold, separate or divest, or to restrict
the dominion or control of such party or any of its Affiliates over, any of the
assets, properties or businesses of such party or its Affiliates in existence on
the date hereof.
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Section 6.4. HSR Notification. As soon as reasonably
practicable, Laser and Parent Holdings shall make, or cause to be made, all
filings and submissions under the HSR Act and any other applicable Competition
Laws as may be reasonably required to be made in connection with this Agreement
and the transactions contemplated hereby. Subject to Section 6.7 hereof, Parent
Holdings will furnish to Laser and Laser will furnish to Parent Holdings, such
information and assistance as the other may reasonably request in connection
with the preparation of any such filings or submissions. Subject to Section 6.7
hereof, Parent Holdings will provide Laser, and Laser will provide Parent
Holdings, with copies of all correspondence, filings or communications (or
memoranda setting forth the substance thereof) between such party or any of its
representatives, on the one hand, and any Governmental Entity or authority or
members of their respective staffs, on the other hand, with respect to this
Agreement and the transactions contemplated hereby. Parent Holdings and Laser
shall consult with one another with respect to any such correspondence, filings
or communications and shall engage in any discussions with any Governmental
Entity on a joint basis.
Section 6.5. ▇▇▇▇▇ Refund. Promptly following redemption,
exchange or other retirement in full of the ▇▇▇▇▇, Laser shall cause to be paid
to Parent Holdings all amounts remaining in the ▇▇▇▇▇ Escrow Fund by wire
transfer of immediately available funds to an account(s) designated in writing
by Parent Holdings. Until the making of such payment, Laser shall cause Holdings
and Worldwide to comply with all of their obligations under the Indenture
relating to the ▇▇▇▇▇, the Indenture and the related Escrow Agreement, shall not
take any action to amend such indenture or agreement in any manner adverse to
Parent Holdings and shall use reasonable best efforts to take action to cause
the redemption or retirement in full of the ▇▇▇▇▇ as promptly as practicable.
Promptly following the Holdings Effective Time, at the request of Parent
Holdings, Laser shall cause Holdings and Worldwide to give the escrow agent
under such Escrow Agreement irrevocable written notice of the assignment of all
right, title and interest in and to any such amounts to and for the benefit of
Parent Holdings, on which notice Parent Holdings may rely. Following the
redemption or retirement in full of the ▇▇▇▇▇, the Mafco Demand Note shall be
canceled automatically without the further action of any Person, and shall be of
no further force or effect whatsoever, and, until the time of such cancellation,
no demand or request for payment of any kind shall be made with respect to the
Mafco Demand Note.
Section 6.6. Listing Application. Laser shall prepare and
submit to the NYSE a listing application covering the Laser Shares to be issued
in connection with the Holdings Merger, and shall use its reasonable best
efforts to obtain as promptly as practicable approval for the listing of such
Laser Shares, subject to official notice of issuance.
Section 6.7. Access to Information; Confidentiality. Holdings
and Laser shall each afford, and Holdings shall cause Worldwide, the Company and
each of its subsidiaries to afford, to the other and to the other's financial
advisors, legal counsel, accountants consultants and other representatives full
access at all reasonable times throughout the period prior to the Holdings
Effective Time to all of its books, records, properties, plants and personnel
(provided that all such access shall be on reasonable advance notice and shall
not disrupt normal business operations) and, during such period, each shall
furnish promptly to the other (a) a copy of each
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report, schedule and other document filed or received by it pursuant to the
requirements of federal or state securities laws, and (b) all other information
as such other party may reasonably request, provided that no investigation
pursuant to this Section 6.7 shall affect any representations or warranties made
herein or the conditions to the obligations of the respective parties to
consummate the Holdings Merger. Each party and their respective affiliates,
representatives and agents shall hold in confidence all nonpublic information in
accordance with the terms of the Confidentiality Agreements between Laser and
the Company dated February 4, 1998 and February 23, 1998 (the "Confidentiality
Agreements").
Section 6.8. Advice of Changes. Upon obtaining knowledge of
any such occurrence, Holdings or Laser shall promptly advise the other party
orally and in writing of (i) any representation or warranty made by it contained
in this Agreement that is qualified as to materiality becoming untrue or
inaccurate in any respect or any such representation or warranty that is not so
qualified becoming untrue or inaccurate in any material respect, (ii) the
failure by it to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under this
Agreement or (iii) any change or event (x) having, or which, insofar as can
reasonably be foreseen, would have, in the case of Laser, a Laser Material
Adverse Effect and, in the case of Holdings, a Holdings Material Adverse Effect,
(y) having, or which, insofar as can reasonably be foreseen, would have, the
effect set forth in clause (i) above or (z) which has resulted, or which,
insofar as can reasonably be foreseen, would result, in any of the conditions
set forth in Article VIII not being satisfied; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
Section 6.9. Affiliate Agreements; Intercompany Accounts.
Parent Holdings and Holdings shall cause all intercompany accounts to be
settled, and all Affiliate Agreements to be treated, as set forth in Section
4.10 of the Holdings Disclosure Schedule.
Section 6.10. Registration Rights Agreement. Immediately prior
to the Holdings Effective Time, Parent Holdings and Laser shall execute and
deliver the Registration Rights Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1. Sales of Laser Shares. Parent Holdings agrees not
to, directly or indirectly, sell, transfer, pledge, assign or otherwise dispose
of or otherwise transfer (other than, in any such case, in connection with a
pledge to secure bona fide indebtedness or other obligations) (collectively,
"Transfer"), any Laser Shares received pursuant to the terms hereof as
consideration for the Holdings Merger, other than to one of its Affiliates who
agrees in writing to be bound by the terms of this Section 7.1, for a period of
nine (9) months from and after the Holdings Effective Time, except that Parent
Holdings may Transfer (A) from and after the date that is three (3) months
following the Holdings Effective Time, twenty-five percent (25%) of the total
number of the Laser Shares, and (B) from and after the date that is six (6)
months following the
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Holdings Effective Time, an additional twenty-five percent (25%) of the total
number of the Laser Shares (such that a total of fifty percent (50%) of the
total number of the Laser Shares shall be Transferable from and after the date
that is six (6) months following the Holdings Effective Time).
Section 7.2. Restrictive Legend. Pursuant to Section 7.1
hereof, each certificate representing the Laser Shares received by Parent
Holdings shall be stamped or otherwise imprinted with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER CONTAINED IN THE AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 27, 1998 AMONG SUNBEAM CORPORATION, LASER
ACQUISITION CORP., CLN HOLDINGS INC., AND ▇▇▇▇▇▇▇ (PARENT) HOLDINGS
INC. AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, ASSIGNED, OR
OTHERWISE DISPOSED OF OR TRANSFERRED (OTHER THAN, IN ANY SUCH CASE, IN
CONNECTION WITH A PLEDGE TO SECURE BONA FIDE INDEBTEDNESS OR OTHER
OBLIGATIONS) ("TRANSFERRED") EXCEPT AS PERMITTED BY THE TERMS THEREOF.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED, AND THE COMPANY WILL NOT REGISTER
THE TRANSFER OF SUCH SECURITIES, EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (B) PURSUANT TO RULE 144 UNDER
THE ACT, OR (C) UPON RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH TRANSFER IS EXEMPT
FROM REGISTRATION UNDER THE ACT.
Upon request of Parent Holdings, Laser shall cause to be
issued certificates representing such Laser Shares as to which the restrictions
set forth herein are no longer applicable without such legend .
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE HOLDINGS MERGER
Section 8.1. Conditions to Each Party's Obligation to Effect
the Holdings Merger. The respective obligations of each party to effect the
Holdings Merger shall be subject to the satisfaction or waiver, to the extent
permitted by Law, at or prior to the Holdings Effective Time of the following
conditions:
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(a) Any waiting period applicable to the consummation of the
Holdings Merger under the HSR Act shall have expired or been terminated.
(b) All of the Laser Shares shall have been previously
approved for listing on the NYSE, subject only to official notice of issuance,
if required.
(c) No preliminary or permanent injunction or other order by
any federal or state court in the United States of competent jurisdiction which
prohibits the consummation of this Agreement or the Holdings Merger shall have
been issued and remain in effect.
(d) All authorizations, consents, orders, declarations or
approvals of, or filings with, or terminations or expirations of waiting periods
imposed by, any Governmental Entity, which the failure to obtain, make or occur
would have the effect of making this Agreement or the Holdings Merger Agreement
or any of the transactions contemplated hereby illegal.
Section 8.2. Conditions to Obligation of Holdings to Effect
the Holdings Merger. The obligation of Holdings to effect the Holdings Merger
shall be subject to the satisfaction by Laser or waiver by Holdings or Parent
Holdings, to the extent permitted by Law, at or prior to the Holdings Effective
Time of the following additional conditions:
(a) The representations and warranties of Laser in this
Agreement and the Company Merger Agreement that are qualified as to materiality
shall be true and correct, and the representations and warranties of Laser in
this Agreement and the Company Merger Agreement that are not so qualified shall
be true and correct in all material respects, in each case as of the date
hereof, and, except to the extent such representations and warranties refer to a
specific date, as of the Closing Date as though made on the Closing Date;
provided, however, that this condition shall be deemed satisfied unless the
failure or failures of such representations and warranties to be so true and
correct (disregarding for this purpose all qualifications in such
representations and warranties relating to materiality or knowledge), in the
aggregate, would have a Laser Material Adverse Effect.
(b) Laser shall have performed in all material respects all
obligations required to be performed by it under this Agreement or under the
Company Merger Agreement at or prior to the Closing Date.
(c) Except as disclosed in the Filed Laser SEC Reports, since
the date of the most recent audited financial statements included in the Filed
Laser SEC Reports, there shall not have been any event, change or development
which individually or in the aggregate has had or reasonably would be expected
to have a Laser Material Adverse Effect or would impair the ability of Laser to
consummate the transactions contemplated by this Agreement or to satisfy its
obligations hereunder.
(d) The Registration Rights Agreement shall have been duly
executed and delivered by each of the parties thereto.
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Section 8.3. Conditions to Obligation of Laser to Effect the
Holdings Merger. The obligation of Laser to effect the Holdings Merger shall be
subject to the satisfaction by Holdings and Parent Holdings or waiver by Laser,
to the extent permitted by Law, at or prior to the Holdings Effective Time of
the following additional conditions, unless:
(a) The representations and warranties of Holdings and Parent
Holdings in this Agreement and the representations of the Company in the Company
Merger Agreement that are qualified as to materiality shall be true and correct,
and the representations and warranties of Holdings and Parent Holdings in this
Agreement and the representations of the Company in the Company Merger Agreement
shall be true and correct in all material respects, in each case as of the date
hereof, and, except to the extent such representations and warranties refer to a
specific date, as of the Closing Date as though made at and as of the Closing
Date; provided, however, that this condition shall be deemed satisfied unless
the failure or failures of such representations and warranties to be so true and
correct (disregarding for this purpose all qualifications in such
representations and warranties relating to materiality or knowledge), in the
aggregate, would have a Holdings Material Adverse Effect or Company Material
Adverse Effect (as defined in the Company Merger Agreement), as the case may be.
(b) Parent Holdings and Holdings shall have performed in all
material respects all obligations required to be performed by them under this
Agreement at or prior to the Closing Date.
(c) The Company shall have performed in all material respects
those obligations required to be performed by it under the Company Merger
Agreement on or prior to the Closing Date.
(d) Up to six (6) individuals designated by Laser (the "Laser
Designees") shall have been duly elected members of the Board of Directors of
the Company and all other members of such Board shall have resigned, all
effective as of the later of (i) the Closing and (ii) the eleventh (11th) day
following the date on which the Section 14(f) Notice (as defined in the Company
Merger Agreement) shall have been filed with the SEC and mailed to all
stockholders of record of the Company in accordance with the Company Merger
Agreement.
ARTICLE IX
TAX MATTERS
Section 9.1. Taxes.
(a) Parent Holdings shall indemnify and hold Laser and Laser's
subsidiaries and Affiliates harmless from and against the following:
(i) any liability for Taxes of any member of the
"affiliated group" (within the meaning of Section 1504(a) of the Code)
(except for the Company and its subsidiaries) of which Mafco Holdings
Inc. (or any predecessor or successor) is the
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common parent that arises under the provisions of Treasury Regulation
Section 1.1502-6(a) (or any successor provision) or comparable
provisions of foreign, state or local law; and
(ii) except to the extent provided in Section
9.1(b)(iii), any liability for Taxes (other than Taxes that arise under
the provisions of Treasury Regulatory Section 1.1502-6(a) (or any
successor provision) or comparable provisions of foreign, state or
local law) imposed on Holdings or Worldwide or for which Holdings or
Worldwide may otherwise be liable for any Pre-Closing Period
(including, without limitation, any Taxes resulting from Holdings or
Worldwide ceasing to be a member of the "affiliated group" of which
Mafco Holdings Inc. (or any successor) is the common parent, any income
Taxes that arise in the Holdings Merger, and any Taxes imposed on
Holdings or Worldwide as a result of any transaction effected between
(and including) the date hereof and the Closing Date).
(b) Laser shall indemnify and hold Parent Holdings and its
Affiliates harmless from and against the following:
(i) Taxes imposed on Holdings or Worldwide for any
Post-Closing Period;
(ii) except to the extent provided in Section
9.1(a)(i), any liability for Taxes of the Company and any of its
subsidiaries; and
(iii) any liability for Taxes resulting from
transactions or actions taken by Holdings or Worldwide on the Closing
Date but after the Holdings Effective Time, except for transactions or
actions undertaken in the ordinary course of business.
(c) To the extent permitted by law or administrative practice,
(i) the taxable year of Holdings or Worldwide which includes the Closing Date
shall be treated as closing on (and including) the Closing Date and (ii) all
transactions not in the ordinary course of business occurring after the Holdings
Effective Time shall be reported on Laser's consolidated United States federal
income Tax Return to the extent permitted by Treasury Regulation Section
1.1502-76(b)(1)(ii)(B) and shall be similarly reported on other Tax Returns of
Laser or its Affiliates to the extent permitted by Law. For purposes of
paragraphs (a) and (b)(i), where it is necessary to apportion between Parent
Holdings and Laser the Tax liability of an entity for a Straddle Period (which
is not treated under the immediately preceding sentence as closing on the
Closing Date), such liability shall be apportioned between the period deemed to
end at the close of the Closing Date and the period deemed to begin at the
beginning of the day following the Closing Date on the basis of an interim
closing of the books, except that Taxes (such as real property Taxes) imposed on
a periodic basis shall be allocated on a daily basis.
(d) For purposes of Sections 9.1(a) and (b), whenever it is
necessary to allocate an item of income, gain, deduction, loss or credit to
either a taxable year or period that is not part of a Straddle Period and that
ends on or before the Closing Date or a taxable year or period
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that is not part of a Straddle Period and that begins after the Closing Date,
such allocation shall be made consistent with the Law.
(e) Any real property transfer or gains Tax, sales Tax, use
Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on Holdings or
any of its subsidiaries arising out of or in connection with the transactions
contemplated by this Agreement shall be borne by the party primarily obligated
for such Tax under applicable Law, and each party shall indemnify the other
party for any such Tax for which it is so liable.
(f) (i) Except as set forth in Section 9.1(f)(iii), Laser
shall be entitled to any refund of Taxes or the benefit of the utilization of
any Tax attribute (including, without limitation, any net operating loss,
investment Tax credit, foreign Tax credit, or other credit or deduction) of (x)
the Company or any of its subsidiaries and (y) for a Post-Closing Period,
Holdings or Worldwide. If Parent Holdings or any of its Affiliates or
subsidiaries receives any refund of Tax to which Laser is entitled pursuant to
this Section 9.1(f)(i) or utilizes any Tax attribute to which Laser is entitled
pursuant to this Section 9.1(f)(i), Parent Holdings shall promptly notify Laser
and shall pay the amount of such refund or the benefit realized from such
utilization within five (5) days of the receipt of such refund or the
realization of such benefit.
(ii) Except as set forth in Section 9.1(f)(iii),
Parent Holdings shall be entitled to any refund of Taxes or the benefit
of the utilization of any Tax attribute of Holdings or Worldwide for a
Pre-Closing Period. If Laser or any of its Affiliates or subsidiaries
receives any refund of Tax to which Parent Holdings is entitled
pursuant to this Section 9.1(f)(ii) or utilizes any Tax attribute to
which Parent Holdings is entitled pursuant to this Section 9.1(f)(ii),
Laser shall promptly notify Parent Holdings and shall pay the amount of
such refund or the benefit realized from such utilization within five
(5) days of the receipt of such refund or the realization of such
benefit.
(iii) No payment shall be made in respect of a Tax
deduction, Tax credit or other Tax benefit pursuant to this Section
9.1(f) in duplication of payments previously made in respect of the
same Tax deduction, Tax credit or other Tax benefit.
(g) Any indemnity payment required under this Article IX as a
result of an adjustment shall be paid seven (7) days after a "determination"
within the meaning of Section 1313(a) of the Code. Any payment required to be
made under this Article IX by one party to the other party that is not made on
or before the date specified in this Article IX shall bear interest after such
date at the rate specified in Code Section 6621(a)(2) for underpayments.
Section 9.2. Tax Returns. (a) Parent Holdings shall file or
cause to be filed when due (i) all Tax Returns that are required to be filed on
or before the Closing Date by or with respect to Holdings or any of its
subsidiaries and (ii) all consolidated, combined or unitary Tax Returns that are
required to be filed by or with respect to Parent Holdings or any entity that
will be its Affiliate after the Holdings Merger, on the one hand, and Holdings
or any of its subsidiaries, on the other hand, for taxable years or periods that
include or precede the Closing Date. Parent Holdings shall remit (or cause to be
remitted) any Taxes shown as due on such Tax Returns. In the case of Tax Returns
described in clause (ii) above, Laser shall pay Parent Holdings no later
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than five (5) days prior to the due date (including extensions) of any such Tax
Return the Tax in connection with such Tax Return for which Laser is liable
pursuant to this Article IX (or Parent Holdings shall pay Laser on such date the
excess, if any, of any estimated Tax payments by the Company or any of its
subsidiaries, relating to the period covered by such Tax Return, over the Tax in
connection with such Tax Return for which Laser is liable pursuant to this
Article IX). Holdings and its subsidiaries shall cooperate in the preparation of
any Tax Returns for which Parent Holdings has filing responsibility hereunder.
Such cooperation shall include, but not be limited to, furnishing in a timely
manner return preparation packages in the form and of the quality provided prior
to the Holdings Merger. Such packages shall be prepared in good faith in a
manner consistent with past practice.
(b) Laser shall file or cause to be filed when due all other
Tax Returns that are required to be filed by or with respect to Holdings or any
of its subsidiaries. Laser shall remit (or cause to be remitted) any Taxes shown
as due on such Tax Returns. Parent Holdings shall pay Laser no later than five
(5) days prior to the due date (including extensions) of any such Tax Return the
Tax in connection with such Tax Return for which Parent Holdings is liable
pursuant to this Article IX.
(c) The party with filing responsibility under this Section
9.2 for a Tax Return shall, 20 days prior to the due date (including extensions)
of such Tax Return, present to the other party (the "Indemnifying Party") for
the approval (which approval shall not be unreasonably withheld) of the
Indemnifying Party the portion, if any, of the Tax Return reflecting solely the
items and positions for which the Indemnifying Party is liable pursuant to this
Article IX.
(d) From and after the date hereof, Parent Holdings and each
of its Affiliates shall not amend any Tax Return with respect to Taxes for which
Laser or any of its Affiliates is liable pursuant to this Agreement, without the
written consent of Laser, which consent shall not be unreasonably withheld.
(e) From and after the date hereof, any payment (including any
estimated payment) in respect of Taxes pursuant to a Tax Sharing Arrangement
that includes Holdings or any of its subsidiaries shall be reduced by any
payment that would be owed by the other party pursuant to a Tax Sharing
Arrangement.
Section 9.3. Tax Claims.
(a) In the case of any Tax audit, examination or judicial or
administrative proceeding (a "Tax Proceeding") relating to a combined,
consolidated or unitary Tax Return that includes Mafco Holdings Inc. (or any
predecessor or successor thereto), Laser shall be entitled to control the
portion of the Tax Proceeding, if any, relating solely to items for which Laser
is liable pursuant to this Agreement, and Parent Holdings shall be entitled to
control every other portion of the Tax Proceeding; provided, however, that
neither Parent Holdings nor any of its Affiliates shall settle or otherwise
dispose of any issue in any such Tax Proceeding that could materially affect the
Tax liability hereunder of Laser, without the prior written consent of Laser,
which consent shall not be unreasonably withheld. Parent Holdings shall be
entitled to control the Pre-Closing Period portion of a Tax Proceeding relating
to a Straddle Period Tax Return, or a Tax
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Return for a Pre-Closing Period ending before the Closing Date, of Holdings or
Worldwide; provided, however, that neither Parent Holdings nor any of its
Affiliates shall settle or otherwise dispose of any issue in any such Tax
Proceeding that could materially affect the Tax liability hereunder of Laser,
without the prior written consent of Laser, which consent shall not be
unreasonably withheld.
(b) Parent Holdings or Laser, as the case may be, shall
promptly notify the other party in writing of any tax claim that could result in
liability of the other party under this Agreement (a "Tax Claim"). With respect
to any Tax Claim, the party controlling the Tax Proceeding with respect thereto
shall (i) not make any submission to any taxing authority without offering the
other party the opportunity to review it, (ii) keep the other party informed as
to the progress of such Tax Claim, (iii) provide the other party with any
information that it receives in connection with the Tax Proceeding, (iv) permit
the other party to participate (at its own expense) in all conferences, meetings
or proceedings with any taxing authority in which the indemnified Tax Claim is
or may be a subject, and (v) permit the other party to participate (at its own
expense) in all court appearances in which the indemnified Tax Claim is or may
be a subject. With respect to any Tax Claim, the party not controlling the Tax
Proceeding with respect thereto shall not take any action or make any
representations in connection with such Tax Claim with respect to issues
affecting the other party's indemnity hereunder. With respect to any Tax Claim
relating to a Pre-Closing Period for which Laser is or may be liable pursuant to
this Agreement, Parent Holdings or any of its Affiliates shall either file (or
cause to be filed) submissions at Laser's direction or appoint (or cause to be
appointed) Laser or its authorized representatives as additional authorized
representatives entitled to communicate fully with the Internal Revenue Service
or the appropriate state, local or foreign taxing authority with respect to such
Tax Claim.
(c) Nothing contained in this Section 9.3 shall be construed
as limiting any party's right to indemnification under Section 9.1.
Section 9.4. Assistance and Cooperation. After the Closing
Date, each of Parent Holdings and Laser shall (and shall cause their respective
Affiliates to):
(a) timely sign and deliver such certificates or forms as may
be necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Tax Returns or other reports with respect to, Taxes described
in Section 9.1(e) (relating to sales, transfer and similar Taxes);
(b) assist the other party in preparing any Tax Returns which
such other party is responsible for preparing and filing in accordance with
Section 9.2;
(c) cooperate fully in preparing for any audits of, or
disputes with taxing authorities regarding, any Tax Returns of Holdings and each
of its subsidiaries;
(d) make available to the other and to any taxing authority as
reasonably requested in connection with any Tax Return described in Section
9.4(b) or any proceeding described in Section 9.4(c), all information relating
to any Taxes or any Tax Returns of Holdings
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and each of its subsidiaries, including, without limitation, records, returns,
schedules, documents, work papers or other relevant materials;
(e) provide timely notice to the other in writing of any Tax
audits or assessments of Holdings and each of its subsidiaries that are pending
or proposed in writing for taxable periods for which the other may have a
liability under this Article IX; and
(f) furnish the other with copies of all correspondence
received from any taxing authority in connection with any Tax audit or
information request with respect to any such taxable period.
Section 9.5. Adjustment to Merger Consideration. For all Tax
purposes, any payment by Laser or Parent Holdings under this Agreement will be
an adjustment to the Merger Consideration.
Section 9.6. Survival of Obligations. Notwithstanding
anything to the contrary in this Agreement, and notwithstanding Article X of
this Agreement, the obligations of the parties set forth in this Article IX
shall be unconditional and absolute and shall remain in effect until 90 days
after the expiration of the applicable statute of limitations.
Section 9.7. Reorganization. Laser shall not, and shall not
permit any of its subsidiaries or Affiliates to, take any action that could
prevent the Holdings Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code. Laser and Parent Holdings shall treat,
and shall cause their respective Affiliates to treat, the Holdings Merger as a
reorganization for all Tax and reporting purposes.
Section 9.8. Tax Sharing Agreements. All rights and
obligations of Parent Holdings (and the entities that will be its Affiliates
after the Holdings Effective Time) pursuant to any of the Tax Sharing
Arrangements or any Tax indemnity arrangements involving Holdings or any of its
subsidiaries will terminate on the Closing Date.
Section 9.9. Information. Notwithstanding any other provision
of this Agreement or the Company Merger Agreement, neither Laser nor any of its
Affiliates nor any other Person shall have any right to receive or obtain any
information relating to Taxes of Parent Holdings or any of its Affiliates other
than information relating solely to Holdings or any of its subsidiaries.
ARTICLE X
INDEMNIFICATION; SURVIVAL
Section 10.1. Parent Holdings' Agreement to Indemnify.
(a) Subject to the terms and conditions of this Article X,
from and after the Closing Date, Parent Holdings shall indemnify, defend and
hold harmless Laser and its subsidiaries (including after the Closing Date, the
Company and its subsidiaries) and each of their re-
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spective successors and permitted assigns, directors, officers, employees,
representatives, agents, Affiliates and associates (collectively, the "Laser
Group") from and against any and all losses, liabilities, expenses (including
reasonable attorneys' fees), claims and damages (collectively, "Damages")
asserted against, resulting to, imposed upon or suffered by the Laser Group, or
any one of them, arising out of or related to any liability or obligation of
Holdings or Worldwide existing on or prior to the Closing Date other than any
such liability or obligation (i) arising in connection with the Notes, the ▇▇▇▇▇
and the 1998 Notes, (ii) which is also a liability or obligation of the Company
or its subsidiaries (on a joint basis or otherwise), or (iii) which relates to
the conduct, operations or activities of the Company or its subsidiaries.
(b) If there are any conflicts between the provisions of this
Section 10.1 and Section 9.3 with respect to Tax Claims, the provisions of
Section 9.3 shall control.
(c) Any payment by Parent Holdings under Article IX or this
Section 10.1 will be an adjustment to the Merger Consideration.
(d) Anything in this Agreement to the contrary
notwithstanding, the liability of Parent Holdings to indemnify the Laser Group
pursuant to this Section 10.1 against any Damages sustained by reason of any
Laser Claim shall be limited to Laser Claims as to which the Laser Group has
given Parent Holdings written notice, setting forth in reasonable detail the
basis for such Laser Claim, on or prior to the fourth (4th) anniversary of the
Closing Date.
Section 10.2. Conditions of Indemnification With Respect to
Third-Party Claims. The obligations and liabilities of Parent Holdings with
respect to Laser Claims for Damages which arise or result from claims made by
third parties ("Third-Party Claims") shall be subject to the following
conditions:
(a) The Laser Group shall give Parent Holdings prompt notice
of any such Third-Party Claim, and Parent Holdings shall have the right to
undertake the defense thereof by representatives chosen by it; provided,
however, that failure to provide prompt notice shall not affect Parent Holdings'
obligations hereunder except to the extent that Parent Holdings is actually
prejudiced by such failure;
(b) If Parent Holdings undertakes the defense of any such
Third-Party Claim, the Laser Group shall, to the best of its ability, assist
Parent Holdings, at the expense of Parent Holdings, in the defense of such
Third-Party Claim, and shall promptly send to Parent Holdings, at the expense of
Parent Holdings, copies of any documents received by the Laser Group which
relate to such Third-Party Claim;
(c) If Parent Holdings, within a reasonable time after notice
of any such Third-Party Claim, fails to defend the member(s) of the Laser Group
against which such Third-Party Claim has been asserted, the Laser Group shall
(upon further notice to Seller) have the right to undertake the defense,
compromise or settlement of such Third-Party Claim on behalf of and for the
account and risk of Parent Holdings, subject to the right of Parent Holdings to
assume the defense of such Third-Party Claim at any time prior to settlement,
compromise or final determination thereof; and
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(d) Anything in this Article X to the contrary
notwithstanding, (i) if there is a reasonable probability that a Third-Party
Claim may materially and adversely affect the Laser Group other than as a result
of money damages or other money payments, the Laser Group shall have the right,
at its own cost and expense, to defend, compromise or settle such Third-Party
Claim, and shall by doing so release Parent Holdings from any liability to
provide indemnification with respect to such Third-Party Claim; and (ii) Parent
Holdings shall not, without the written consent of the Laser Group, settle or
compromise any Third-Party Claim or consent to the entry of any judgment which
does not include as an unconditional term thereof the giving by the claimant or
the plaintiff to the Laser Group a release from all liability with respect to
such Third-Party Claim.
Section 10.3. Survival of Representations; Covenants. The
representations and warranties in this Agreement shall terminate upon and not
survive the Closing Date. This Section 10.3 shall not limit any covenant or
agreement of the parties contained herein which by its terms contemplates
performance after the Holdings Effective Time.
ARTICLE XI
TERMINATION
Section 11.1. Termination. This Agreement may be terminated at
any time prior to the Holdings Effective Time:
(a) by mutual written agreement of Laser and Holdings;
(b) by either Laser or Holdings if the Holdings Merger shall
not have been consummated on or before August 31, 1998 (the "Termination Date");
provided, however, that the right to terminate this Agreement under this Section
11.1(b) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before the Termination Date;
(c) by either Laser or Holdings if a court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
shall have issued an order, decree or ruling or taken any other action (which
order, decree or ruling the parties shall use their reasonable best efforts to
lift), in each case permanently restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement, and such order, decree, ruling
or other action shall have become final and nonappealable;
(d) by either Laser or Holdings in the event of a breach by
the other party or any of its subsidiaries (including, in the case of Holdings,
the Company and its subsidiaries) of any representation, warranty, covenant or
other agreement contained in this Agreement or the Company Merger Agreement, as
applicable, which would give rise to the failure of a condition set forth in
Section 8.2(a) or Section 8.3(a) hereof or Section 8.1 thereof, as applicable,
and is not capable of being cured (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained in this Agreement).
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Section 11.2. Effect of Termination. In the event of
termination of this Agreement as provided in Section 11.1 hereof, this Agreement
shall forthwith become void, provided that the last sentence of Section 6.7 and
Article XII shall continue, and there shall be no liability on the part of any
of the parties, nothing herein shall relieve any party from liability for any
willful breach hereof.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Notices. All notices or other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended, if delivered
by registered or certified mail, return receipt requested, or by a national
courier service, or if sent by telecopier; provided that the telecopy is
promptly confirmed by telephone confirmation thereof, to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
If to Holdings:
CLN Holdings Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to Laser:
Sunbeam Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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with copies to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any such notification shall be deemed delivered (i) upon receipt, if delivered
personally, (ii) on the next business day, if sent by national courier service
for next business day delivery or (iii) the business day received, if sent by
telecopier.
Section 12.2. Amendment. This Agreement may be amended by the
parties pursuant to a writing adopted by action taken by all of the parties at
any time before the Closing Date. This Agreement may not be amended except by an
instrument in writing signed by the Parties.
Section 12.3. Extension; Waiver. At any time before the
Closing Date, any party hereto may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
to any such extension or waiver shall be valid only as against such party and
only if set forth in an instrument in writing signed by such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
Section 12.4. Assignment. No party to this Agreement may
assign any of its rights or obligations under this Agreement without the prior
written consent of the other party hereto.
Section 12.5. Entire Agreement. This Agreement (including all
Schedules and Exhibits hereto) contains the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters,
except for the Confidentiality Agreements which will remain in full force and
effect for the term provided for therein.
Section 12.6. Parties in Interest. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any Person other than Laser, Holdings, Worldwide,
their respective subsidiaries or their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
Section 12.7. Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be borne by the party incurring such expenses.
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Section 12.8. Governing Law. This Agreement shall be governed
by the laws of the State of Delaware, its rules of conflict of laws
notwithstanding.
Section 12.9. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same agreement.
Section 12.10. Headings. The heading references herein and in
the table of contents hereto are for convenience purposes only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
Section 12.11. Further Assurances. From time to time after the
Closing Date, at the request of the other party hereto and at the expense of the
party so requesting, Holdings and Laser shall execute and deliver to such
requesting party such documents and take such other action as such requesting
party may reasonably request in order to consummate the transactions
contemplated hereby.
Section 12.12. Specific Performance. Each party hereto
acknowledges that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement by such party and that any such breach
would cause the other party hereto irreparable harm. Accordingly, each party
hereto also agrees that, in the event of any breach or threatened breach of the
provisions of this Agreement by such party, the other party hereto shall be
entitled to equitable relief without the requirement of posting a bond or other
security, including in the form of injunctions and orders for specific
performance.
Section 12.13. Certain Terms. As used herein: (i) the term
"material adverse effect" (including as used in any definition) with respect to
any Person, shall exclude any change, event, effect or circumstance (a) arising
in connection with the announcement or performance of the transactions
contemplated by this Agreement and the Company Merger Agreement and (b)
affecting in the United States economy generally or such Person's industries
generally; and (ii) "to the knowledge of Holdings" shall mean to the actual
knowledge of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
Section 12.14. Interpretation. When a reference is made to
this Agreement to an Article or Section, such reference shall be to an Article
or Section of, this Agreement unless otherwise indicated. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. The phrase "made available" in this Agreement shall mean that
the information referred to has been made available if requested by the party to
whom such information is to be made available. All terms defined in this
Agreement shall have the defined meanings used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument
-32-
that is referred to herein means such agreement, instrument or statute as from
time to time amended, modified or supplemented, including (in the case of
agreements or instruments) by waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and references to all attachments
thereto and instruments incorporated therein. References to a person are also to
its permitted successors and assigns and, in the case of an individual, to his
heirs and estate, as applicable.
[SIGNATURE PAGE FOLLOWS]
-33-
IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed as of the date first written above.
SUNBEAM CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
LASER ACQUISITION CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
CLN HOLDINGS INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
COLEMAN (PARENT) HOLDINGS INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
-34-
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _________ __, 1998
(the "Agreement"), among SUNBEAM CORPORATION, a Delaware corporation ("Laser"),
and COLEMAN (PARENT) HOLDINGS INC., a Delaware corporation ("Parent Holdings").
WHEREAS, pursuant to the Agreement and Plan of Merger, dated
as of February 27, 1998 (the "Holdings Merger Agreement"), by and among Laser,
LASER ACQUISITION CORP., a Delaware corporation and wholly owned subsidiary of
Laser ("Laser Merger Sub"), CLN HOLDINGS INC., a Delaware corporation and wholly
owned subsidiary of Parent Holdings ("Holdings"), and Parent Holdings, Laser
Merger Sub will be merged immediately after the execution of this Agreement with
the surviving corporation becoming an indirect wholly owned subsidiary of Laser,
upon the terms and subject to the conditions set forth in the Holdings Merger
Agreement (the "Holdings Merger"); and
WHEREAS, upon consummation of the Holdings Merger, the shares
of Holdings Common Stock (as defined herein) issued and outstanding immediately
prior to the effective time of the Holdings Merger shall be converted into the
right to receive an aggregate of (A) 14,099,749 fully paid and nonassessable
shares of Laser Common Stock (as defined herein) and (B) $159,956,756 in cash,
without interest hereon; and
WHEREAS, it is a condition to the obligations of Holdings to
consummate the Holdings Merger that this Agreement be duly executed and
delivered by each of the parties hereto; and
WHEREAS, in order to induce Holdings to enter into the
Holdings Merger Agreement, Laser has agreed to provide registration rights with
respect to the shares of Laser Common Stock to be issued to Parent Holdings upon
consummation of the Holdings Merger.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
The term "Affiliate" shall have the meaning ascribed to it in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
The term "Agreement" shall have the meaning ascribed to it in
the first paragraph of the Preamble.
The term "Camper" shall mean The ▇▇▇▇▇▇▇ Company, Inc., a
Delaware corporation.
The term "Effective Date" shall have the meaning ascribed to
it in Section 2.2.
The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
The term "Holdings" shall have the meaning ascribed to it in
the second paragraph of the Preamble.
The term "Holdings Common Stock" shall mean common stock, par
value $1.00 per share, of Holdings.
The term "Holdings Merger" shall have the meaning ascribed to
it in the second paragraph of the Preamble.
The term "Holdings Merger Agreement" shall have the meaning
ascribed to it in the second paragraph of the Preamble.
The term "Laser" shall have the meaning ascribed to it in the
first paragraph of the Preamble.
The term "Laser Common Stock" shall mean common stock, par
value $.01 per share, of Laser.
The term "Laser Merger Sub" shall have the meaning ascribed to
it in the second paragraph of the Preamble.
The term "Laser Offering" shall mean the sale of equity
securities of Laser, or securities convertible into or exchangeable or
exercisable for equity securities of Laser, pursuant to a registration statement
filed by Laser under the Securities Act (other than a registration statement
filed on Form S-8 or any successor form) respecting an underwritten offering,
whether primary or secondary, that is declared effective by the SEC.
The term "Losses" shall have the meaning ascribed to it in
Section 2.6(a).
The term "Parent Holdings" shall have the meaning ascribed to
it in the first paragraph of the Preamble.
The term "Person" shall mean an individual, trustee,
corporation, partnership, business trust, limited liability company, limited
liability partnership, joint stock company, trust, unincorporated association,
union, business association, firm or other entity.
-2-
The term "Registrable Securities" shall mean the shares of
Laser Common Stock to be issued to Parent Holdings upon consummation of the
Holdings Merger and any other securities issued or issuable upon or in respect
of such securities by way of conversion, exchange, dividend, split or
combination, recapitalization, merger, consolidation, other reorganization or
otherwise. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when such securities have been sold or
otherwise transferred by Parent Holdings pursuant to the Shelf Registration
Statement or pursuant to Rule 144 under the Securities Act.
The term "Registration Expenses" shall have the meaning
ascribed to it in Section 2.5.
The term "Rule 144" shall mean Rule 144 promulgated under the
Securities Act (or any successor rule).
The term "Rule 415 Offering" shall have the meaning ascribed
to it in Section 2.1(a).
The term "SEC" shall mean the United States Securities and
Exchange Commission.
The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the SEC promulgated
thereunder.
The term "Shelf Registration Statement" shall have the meaning
ascribed to it in Section 2.1(a).
The term "Transfer" shall mean any attempt to, directly or
indirectly, sell, transfer, pledge, assign or otherwise dispose of or otherwise
transfer any of the Registrable Securities.
ARTICLE II
REQUIRED REGISTRATION
Section 2.1 Required Registration.
(a) Form S-3. Laser shall prepare and file with the SEC a
registration statement (the "Shelf Registration Statement") on Form S-3 or
another appropriate form permitting registration of the Registrable Securities
so as to permit the resale of the Registrable Securities by Parent Holdings
pursuant to an offering on a delayed or continuous basis pursuant to Rule 415
(or any successor rule) under the Securities Act (a "Rule 415 Offering") and
shall use reasonable best efforts to cause the Shelf Registration Statement to
be declared effective by the SEC on or before the date on which any of the
Registrable Securities
-3-
may be transferred by Parent Holdings pursuant to Article VII of the Holdings
Merger Agreement. Laser shall use reasonable best efforts to permit the Shelf
Registration Statement to be used by Affiliates of Camper for resales of shares
of Laser Common Stock issued to such Affiliates in the merger of a wholly owned
subsidiary of Laser with Camper; provided, however, that any such Affiliate
using the Shelf Registration Statement shall agree in writing to be bound by all
of the restrictions, limitations and obligations of Parent Holdings contained in
this Agreement.
(b) Effectiveness. Laser shall use reasonable best efforts to
keep the Shelf Registration Statement continuously effective under the
Securities Act until the date that is the earliest to occur of (i) the date by
which all Registrable Securities covered by the Shelf Registration Statement
have been sold and (ii) the second anniversary of the consummation of the
Holdings Merger.
(c) Amendments/Supplements. Laser shall amend and supplement
the Shelf Registration Statement and the prospectus contained therein if
required by the rules, regulations or instructions applicable to the
registration form used by Laser for such Shelf Registration Statement, if
required by the Securities Act.
(d) Offerings. At any time from and after the date on which
the Shelf Registration Statement is declared effective by the SEC (the
"Effective Date"), Parent Holdings, subject to the restrictions and conditions
contained herein and in the Merger Agreement, and subject further to compliance
with all applicable state and federal securities laws, shall have the right to
dispose of all or any portion of the Registrable Securities.
Section 2.2 Holdback Agreement.
From and after the Effective Date, upon the request of Laser,
Parent Holdings shall not effect any public sale or distribution (including
sales pursuant to Rule 144) of Registrable Securities that are equity securities
of Laser, or any securities convertible into or exchangeable or exercisable for
such securities (other than any such sale or distribution of such securities
pursuant to registration of such securities on Form S-8 or any successor form)
during the period commencing on the date on which Laser commences a Laser
Offering through the sixty (60)-day period immediately following the closing
date of such Laser Offering; provided, however, that Parent Holdings shall not
be obligated to comply with this Section 2.2 on more than two (2) occasions in
any twelve (12)-month period; and provided, further, that notwithstanding
anything to the contrary in this Section 2.2 or Section 2.3, in no event shall
Parent Holdings be disabled from effecting offers or sales of Registrable
Securities for more than one-hundred-and-fifteen (115) days during any twelve
(12)-month period.
Section 2.3 Blackout Provisions.
In the event that, at any time while the Shelf Registration
Statement remains effective, Laser determines in its reasonable judgment and in
good faith that the sale of Registrable Securities would require disclosure of
material information which Laser has a
-4-
bona fide business purpose for preserving as confidential, Parent Holdings
shall, upon receiving written notice from Laser of such good faith
determination, suspend sales of the Registrable Securities for a period
beginning on the date of receipt of such notice and expiring on the earlier of
(i) the date upon which such material information is disclosed to the public or
ceases to be material or (ii) forty-five (45) days after the receipt of such
notice from Laser; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.3 on more than two (2) occasions in any
twelve (12) month period; and provided, further, that notwithstanding anything
to the contrary in this Section 2.3 or Section 2.2, in no event shall Parent
Holdings be disabled from effecting offers or sales of Registrable Securities
for more than one-hundred-and-fifteen (115) days during any twelve (12)-month
period.
Section 2.4 Registration Procedures.
(a) Procedures. In connection with the registration of the
Registrable Securities pursuant to this Agreement, Laser shall use reasonable
best efforts to effect the registration and sale of the Registrable Securities
in accordance with Parent Holdings' intended method of disposition thereof and,
in connection therewith, Laser shall:
(1) prepare and file with the SEC the Shelf
Registration Statement and use reasonable best efforts to cause the
Shelf Registration Statement to become and remain effective in
accordance with Sections 2.1(a) and (b) above;
(2) prepare and file with the SEC amendments and
supplements to the Shelf Registration Statement and the prospectuses
used in connection therewith in accordance with Section 2.1(c) above;
(3) before filing with the SEC the Shelf
Registration Statement or prospectus or any amendments or supplements
thereto, Laser shall furnish to one (1) counsel selected by Parent
Holdings and one (1) counsel for the underwriter or sales or placement
agent, if any, in connection therewith, drafts of all such documents
proposed to be filed and provide such counsel with a reasonable
opportunity for review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable promptness;
(4) promptly (i) notify Parent Holdings of each of
(w) the filing and effectiveness of the Shelf Registration Statement
and each prospectus and any amendments or supplements thereto, (x) the
receipt of any comments from the SEC or any state securities law
authorities or any other governmental authorities with respect to any
such Shelf Registration Statement or prospectus or any amendments or
supplements thereto, (y) any oral or written stop order with respect to
such registration, any suspension of the registration or qualification
of the sale of the Registrable Securities in any jurisdiction or any
initiation or threatening of any pro-
-5-
ceedings with respect to any of the foregoing, and (z) of the happening
of any event that requires the making of any changes in such Shelf
Registration Statement, prospectus or documents incorporated or deemed
to be incorporated therein by reference so that they will not contain
any 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 not misleading and (ii) use reasonable best efforts to obtain
the withdrawal of any order suspending the registration or
qualification (or the effectiveness thereof) or suspending or
preventing the use of any related prospectus in any jurisdiction with
respect thereto;
(5) furnish to Parent Holdings, the underwriters or
the sales or placement agent, if any, and one (1) counsel for each of
the foregoing, a conformed copy of the Shelf Registration Statement and
each amendment and supplement thereto (in each case, including all
exhibits thereto) and such additional number of copies of such Shelf
Registration Statement, each amendment and supplement thereto (in such
case, without such exhibits), the prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement
and prospectus supplements and all exhibits thereto and such other
documents as Parent Holdings, its underwriters, agent or such counsel
may reasonably request in order to facilitate the disposition of the
Registrable Securities by Parent Holdings;
(6) in connection with a sale of Registrable
Securities by or through an underwriter, if requested by Parent
Holdings or the managing underwriter or underwriters of a Rule 415
Offering, subject to approval of counsel to Laser in its reasonable
judgment, promptly incorporate in a prospectus, supplement or
post-effective amendment to the Shelf Registration Statement such
information concerning underwriters and the plan of distribution of the
Registrable Securities as such managing underwriter or underwriters or
Parent Holdings reasonably shall furnish to Laser in writing and such
request to be included therein, including, without limitation,
information with respect to the number of Registrable Securities being
sold by Parent Holdings to such underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make all
required filings of such prospectus, supplement or post-effective
amendment as soon as reasonably practicable after being notified of the
matters to be incorporated in such prospectus, supplement or
post-effective amendment;
(7) use reasonable best efforts to register or
qualify the Registrable Securities for offer and sale under such
securities or "blue sky" laws of such jurisdictions as Parent Holdings
reasonably requests and
-6-
do any and all other acts and things which may be reasonably necessary
or advisable to enable Parent Holdings to consummate the disposition in
such jurisdictions in which the Registrable Securities are to be sold
and keep such registration or qualification in effect for as long as
the Shelf Registration Statement remains effective under the Securities
Act (provided that Laser shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph, (ii) subject itself to
taxation in any such jurisdiction where it would not otherwise be
subject to taxation but for this paragraph or (iii) consent to the
general service of process in any jurisdiction where it would not
otherwise be subject to general service of process but for this
paragraph);
(8) notify Parent Holdings, at any time when a
prospectus relating to the Shelf Registration Statement is required to
be delivered under the Securities Act, upon the discovery that, or of
the happening of any event as a result of which, the Shelf Registration
Statement, as then in effect, contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or any fact necessary to make the statements therein not
misleading, and promptly prepare and furnish to Parent Holdings a
supplement or amendment to the prospectus contained in the Shelf
Registration Statement so that the Shelf Registration Statement shall
not, and such prospectus as thereafter delivered to the purchasers of
such Registrable Securities shall 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;
(9) cause all of the Registrable Securities to be
listed on each national securities exchange and included in each
established over-the-counter market on which or through which the Laser
Common Stock is then listed or traded;
(10) in connection with a sale of Registrable
Securities by or through an underwriter, make available for inspection
by Parent Holdings, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement, and any attorney,
accountant or other agent retained by Parent Holdings or its
underwriter, all financial and other records, pertinent corporate
documents and properties of Laser as shall be reasonably necessary to
enable either of them to exercise their due diligence responsibility,
and cause Laser's officers, directors, employees, attorneys and
independent accountants to supply all information reasonably requested
by Parent Holdings, its underwriters, attorneys, accountants or agents
in connection with the Shelf Registration Statement; information
-7-
which Laser determines, in good faith, to be confidential shall not be
disclosed by such persons unless (i) the disclosure of such information
is required by applicable federal securities laws or is necessary to
avoid or correct a misstatement or omission in such Shelf Registration
Statement or (ii) the release of such information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction;
Parent Holdings agrees, on its own behalf and on behalf of all of its
underwriters, accountants, attorneys and agents, that the information
obtained by any of them as a result of such inspections shall be deemed
confidential unless and until such is made generally available to the
public; Parent Holdings further agrees, on its own behalf and on behalf
of all of its underwriters, accountants, attorneys and agents, that
Parent Holdings will, upon learning that disclosure of such information
is sought in a court of competent jurisdiction, give notice to Laser
and allow Laser, at Parent Holdings' expense, to undertake appropriate
action to prevent disclosure of the information deemed confidential;
nothing contained herein shall require Laser to waive any
attorney-client privilege or disclose attorney work product;
(11) use reasonable best efforts to comply with all
applicable laws related to the Shelf Registration Statement and
offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith
(including, without limitation, the Securities Act and the Exchange
Act, and the rules and regulations promulgated by the SEC) and make
generally available to its security holders as soon as practicable (but
in any event not later than fifteen (15) months after the effectiveness
of the Shelf Registration Statement) an earnings statement of Laser and
its subsidiaries complying with Section 11(a) of the Securities Act;
(12) in connection with a sale of Registrable
Securities by or through an underwriter, use reasonable best efforts to
furnish to Parent Holdings a signed counterpart of (x) an opinion of
counsel for Laser (including a "Rule 10b-5" opinion) and (y) a
"comfort" letter signed by the independent public accountants who have
certified Laser's financial statements included or incorporated by
reference in such registration statement, covering such matters with
respect to such registration statement and, in the case of the
accountants' comfort 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' comfort letters
delivered to the underwriters in underwritten public offerings of
securities for the account of, or on behalf of, an issuer of common
stock, such opinion and comfort letters to be dated the date that such
opinion and comfort letters are customarily dated in such transactions;
and
-8-
(13) take other actions as Parent Holdings or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities.
(b) Further Agreements. Without limiting any of the
foregoing, in the event that the sale of Registrable Securities is to be made by
or through an underwriter, Laser shall enter into an underwriting agreement with
a managing underwriter or underwriters selected by Parent Holdings containing
representations, warranties, indemnities and agreements customarily included
(but not inconsistent with the agreements contained herein) by an issuer of
common stock in underwriting agreements with respect to offerings of common
stock for the account of, or on behalf of, such issuers; provided, however, that
Parent Holdings shall not utilize the Shelf Registration Statement for more than
two (2) underwritten offerings during the term of this Agreement. In connection
with the sale of Registrable Securities hereunder, Parent Holdings may, at its
option, require that any and all representations and warranties by, and the
other agreements of, Laser to or for the benefit of such underwriter or
underwriters (or which would be made to or for the benefit of such an
underwriter or underwriter if such sale of Registrable Securities were pursuant
to a customary underwritten offering) be made to and for the benefit of Parent
Holdings and that any or all of the conditions precedent to the obligations of
such underwriter or underwriters (or which would be so for the benefit of such
underwriter or underwriters under a customary underwriting agreement) be
conditions precedent to the obligations of Parent Holdings in connection with
the disposition of Parent Holdings' securities pursuant to the terms hereof. In
connection with any offering of Registrable Securities registered pursuant to
this Agreement, Laser shall, upon receipt of duly endorsed certificates
representing the Registrable Securities, (i) furnish to the underwriter, if any
(or, if no underwriter, Parent Holdings), unlegended certificates representing
ownership of Registrable Securities being sold, in such denominations as
requested, and (ii) instruct any transfer agent and registrar of the Registrable
Securities to release any stop transfer order with respect thereto.
Parent Holdings agrees that upon receipt of any notice from
Laser of the happening of any event of the kind described in paragraph (8) of
Section 2.4(a), Parent Holdings shall forthwith discontinue its disposition of
Registrable Securities pursuant to the Shelf Registration Statement and
prospectus relating thereto until Parent Holdings' receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (8) of Section
2.4(a) and, if so directed by Laser, deliver to Laser all copies, other than
permanent file copies, then in Parent Holdings' possession of the prospectus
current at the time of receipt of such notice relating to the Registrable
Securities.
Section 2.5 Registration Expenses.
All expenses incidental to Laser's performance of, or
compliance with, its obligations under this Agreement including, without
limitation, all registration and filing fees, all fees and expenses of
compliance with securities and "blue sky" laws (including, without limitation,
the fees and expenses of counsel for underwriters or placement or sales agents
in
-9-
connection therewith), all printing and copying expenses, all messenger and
delivery expenses, all fees and expenses of underwriters and sales and placement
agents in connection therewith (excluding underwriters' discounts and
commissions and the fees and expenses of counsel therefor), all fees and
expenses of Laser's independent certified public accountants and counsel
(including, without limitation, with respect to "comfort" letters and opinions)
and other Persons retained by Laser in connection therewith (collectively, the
"Registration Expenses"), shall be borne by Laser. Laser shall not be
responsible for and shall not pay underwriters' discounts and commissions and
the fees and expenses of counsel therefor and fees and expenses of legal
counsel, accountants, agents or experts retained by Parent Holdings in
connection with the sale of the Registrable Securities. Laser will pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties, the expense of
any annual audit and the expense of any liability insurance) and the expenses
and fees for listing the Registrable Securities on the New York Stock Exchange
or, if the Laser Common Stock is then not so listed, included in an established
over-the-counter market.
Section 2.6 Indemnification.
(a) By Laser. Laser agrees to indemnify Parent Holdings and
Parent Holdings' directors, officers, employees and agents and each Person who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) Laser or such other indemnified Person to the fullest
extent lawful, against all losses, claims, damages, liabilities, judgments, and
reasonable costs (including, without limitation, reasonable attorneys' fees and
expenses) (collectively, the "Losses") as incurred, caused by, arising out of,
resulting from or relating to any untrue or alleged untrue statement of material
fact contained in the Shelf Registration Statement, any prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are based upon any information furnished in writing to Laser by Parent
Holdings or its underwriter or other agent expressly for use therein or by
Parent Holdings' failure to deliver, or its underwriter's or other agent's
failure to deliver, a copy of the Shelf Registration Statement or prospectus or
any amendments or supplements thereto after Laser has furnished Parent Holdings
with the requested number of copies of the same. In connection with an
underwritten offering and without limiting any of Laser's other obligations
under this Agreement, Laser shall indemnify such underwriters, their officers,
directors, employees and agents and each Person who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) such
underwriters or such other indemnified Person to the same extent as provided
above with respect to the indemnification of Parent Holdings.
(b) By Parent Holdings. In connection with the Shelf
Registration Statement, Parent Holdings shall furnish to Laser in writing
information regarding Parent Holdings' ownership of Registrable Securities and
Parent Holdings' intended method of distribution thereof and shall indemnify
Laser, its directors, officers, employees and agents
-10-
and each Person who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) Laser or such other indemnified Person
against all Losses caused by, arising out of, resulting from or relating to any
untrue or alleged untrue statement of material fact contained in the Shelf
Registration Statement, any prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission or alleged untrue statement or omission (i) is caused by, arises out
of, results from or relates to, or is alleged to be omitted from, such
information so furnished in writing by Parent Holdings or (ii) arises out of or
results from Parent Holdings' failure to deliver, or Parent Holdings'
underwriter's or other agent's failure to deliver, a copy of the Shelf
Registration Statement or prospectus or any amendments or supplements thereto
after Laser has furnished Parent Holdings with the requested number of copies of
the same. In connection with an underwritten offering and without limiting any
of Parent Holdings' other obligations under this Agreement, (i) Parent Holdings
shall indemnify such underwriters, their officers, directors, employees and
agents and each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) such underwriters or such
other indemnified Person to the same extent as provided above with respect to
the indemnification of Laser and (ii) Parent Holdings shall cause each
underwriter of an underwritten offering to indemnify Laser, its directors,
officers, employees and agents and each Person who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) Laser or
such indemnified Person, on terms and subject to conditions customary for such
indemnification by nationally known investment banking firms, against all Losses
caused by, arising out of, resulting from or relating to any untrue or alleged
untrue statement of material fact contained in the Shelf Registration Statement,
any prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission or alleged untrue
statement or omission (x) is caused by, arises out of or results from
information furnished in writing by such underwriter specifically for inclusion
in the Shelf Registration Statement or (y) arises out of or results from such
underwriter's failure to delivery a copy of the Shelf Registration Statement or
prospectus or any amendments or supplements thereto after Laser has furnished
such underwriter with the requested number of copies of the same.
(c) Notice. Any Person entitled to indemnification hereunder
shall give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been prejudiced by such
failure to provide such notice.
(d) Defense of Actions. In any case in which any such action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
-11-
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not (so
long as it shall continue to have the right to defend, contest, litigate and
settle the matter in question in accordance with this paragraph) be liable to
such indemnified party hereunder for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, supervision and monitoring (unless such
indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition to
the defenses available to such indemnifying party, in which event the
indemnified party shall be reimbursed by the indemnifying party for the
reasonable expenses incurred in connection with retaining one separate legal
counsel). An indemnifying party shall not be liable for any settlement of an
action or claim effected without its consent. The indemnifying party shall lose
its right to defend, contest, litigate and settle a matter if it shall fail to
diligently contest such matter (except to the extent settled in accordance with
the next following sentence). No matter shall be settled by an indemnifying
party without the consent of the indemnified party unless such settlement
contains a full and unconditional release of the indemnified party.
(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities.
(f) Contribution. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who otherwise would be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it
would not necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. 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 found guilty of
such fraudulent misrepresentation.
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ARTICLE III
TRANSFERS OF REGISTRABLE SECURITIES
Section 3.1 Transferability of Registrable Securities
Parent Holdings may not Transfer the Registrable Securities
except in accordance with Article VII of the Holdings Merger Agreement and under
the following circumstances:
(a) pursuant to Rule 144;
(b) pursuant to the Shelf Registration Statement; or
(c) upon receipt by Laser of an opinion of counsel,
reasonably satisfactory to Laser, that such Transfer is exempt from registration
under the Securities Act.
Section 3.2 Restrictive Legends.
Parent Holdings hereby acknowledges and agrees that, during
the term of this Agreement, each of the certificates representing Registrable
Securities shall be subject to stop transfer instructions and shall include the
legend set forth in Section 7.2 of the Holdings Merger Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Effectiveness of Agreement.
The provisions of this Agreement shall be effective as of the
date hereof.
Section 4.2 Recapitalization.
In the event that any capital stock or other securities are
issued as a dividend or distribution on, in respect of, in exchange for, or in
substitution of, any Registrable Securities, such securities shall be deemed to
be Registrable Securities for all purposes under this Agreement.
Section 4.3 Notices.
All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally,
by mail (certified or registered mail, return receipt
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requested), by reputable overnight courier or by facsimile transmission (receipt
of which is confirmed):
(a) If to Laser, to:
Sunbeam Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Parent Holdings, to:
▇▇▇▇▇▇▇ (Parent) Holdings Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other person or address as any party shall specify by notice in
writing, given in accordance with this Section 4.3, to the other parties hereto.
All such notices, requests, demands, waivers and communications shall be deemed
to have been given on the date on which so hand-delivered, on the third business
day following the date on which so mailed, on the next business day following
the date on which delivered to such overnight courier and on the date of such
facsimile transmission and confirmation, except for a notice of change of person
or address, which shall be effective only upon receipt thereof.
Section 4.4 Entire Agreement.
This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof. This Agreement
supersedes all prior agreements and understandings, oral and written, with
respect to its subject matter.
Section 4.5 Binding Effect; Assignment.
This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, successors and permitted assigns, but, except as expressly
contemplated herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly, by Laser or
Parent Holdings without the prior written consent of the other; provided, that
in connection with a bona fide pledge of any Registrable Securities to secure
indebtedness or other obligations, Parent Holdings may assign its rights,
interests and obligations hereunder to the beneficiary of such pledge. Upon any
permitted assignment (other than in connection with any such bona fide pledge),
this Agreement shall be amended to substitute the assignee as a party hereto in
a writing reasonably acceptable to the other party.
Section 4.6 Amendment, Modification and Waiver.
This Agreement may be amended, modified or supplemented at any
time by written agreement of the parties hereto. Any failure by Parent Holdings,
on the one hand, or Laser, on the other hand, to comply with any term or
provision of this Agreement may be waived by Laser or Parent Holdings,
respectively, at any time by an instrument in writing signed by or on behalf of
Laser and Parent Holdings, but such waiver or failure to insist upon strict
compliance with such term or provision shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure to comply.
Section 4.7 Third-Party Beneficiaries.
Except with respect to Affiliates which have agreed to be
bound in accordance with Section 2.1(a), this Agreement is not intended, and
shall not be deemed, to confer upon or give any person except the parties hereto
and their respective successors and permitted assigns, any remedy, claim,
liability, reimbursement, cause of action or other right under or by reason of
this Agreement.
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Section 4.8 Counterparts.
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 4.9 Interpretation.
The article and section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
Section 4.10 Governing Law.
This Agreement shall be governed by the laws of the State of
New York, without regard to the principles of conflicts of law thereof.
Section 4.11 Termination; Restrictive Legend.
Subject to the provisions of Section 2.1(b) hereof, this
Agreement shall terminate on the second anniversary of consummation of the
Merger; provided, however, that the provisions of Section 2.6 hereof shall
survive termination of this Agreement. It is understood and agreed that any
restrictive legends set forth on any Registrable Securities shall be removed by
delivery of substitute certificates without such legends and such Registrable
Securities shall no longer be subject to the terms of this Agreement, upon the
resale of such Registrable Securities in accordance with the terms of this
Agreement or, if not theretofore removed, on the third anniversary of the date
hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned hereby agree to be bound
by the terms and provisions of this Registration Rights Agreement as of the date
first above written.
SUNBEAM CORPORATION
By:
Name:
Title:
▇▇▇▇▇▇▇ (PARENT) HOLDINGS INC.
By:
Name:
Title:
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