EQUITY REGISTRATION RIGHTS AGREEMENT
dated as of February 26, 1999
among
ARIS INDUSTRIES, INC.
and
THE HOLDERS OF REGISTRABLE SHARES REFERRED TO HEREIN
EQUITY REGISTRATION RIGHTS AGREEMENT
Equity Registration Rights Agreement (this "Agreement") dated as of
February 26, 1999, among ARIS INDUSTRIES, INC., a New York corporation (such
corporation together with its direct or indirect successors, the "Company"), THE
SIMON GROUP, L.L.C., a New York limited liability company ("Simon"), APOLLO ARIS
PARTNERS, L.P., a Delaware limited partnership ("AAP"), AIF-II, L.P., a Delaware
limited partnership ("AIF" and together with AAP, "Apollo") and ▇▇▇▇▇▇▇ ▇. RAMAT
("Ramat").
WHEREAS, AAP beneficially owns 5,804,820 shares of the Common Stock of the
Company, par value $.01 per share (the "Common Stock").
WHEREAS, pursuant to the terms and conditions of that certain Securities
Purchase Agreement dated as of February 26, 1999 (the "Purchase Agreement"), by
and among the Company, Simon and Apollo, the Company on the date hereof has,
among other things, (i) issued to Simon 2,093,790 shares of the Series A
Preferred Stock of the Company, par value $.01 per share (the "Series A
Preferred Stock"), and 24,107,145 shares of Common Stock and (ii) issued to AIF
512,113 shares of Series A Preferred Stock and 5,892,856 shares of Common Stock;
WHEREAS, by their terms each share of Series A Preferred Stock is
mandatorily convertible into shares of Common Stock immediately upon the filing
of a Certificate of Amendment to the Certificate of Incorporation of the Company
with the Secretary of State of New York (and the acceptance thereof by the
Secretary of State of New York) which increases the number of authorized shares
of Common Stock to 100,000,000 shares, without any cost, fee or expense by the
holder thereof;
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition precedent to the closing under the Purchase Agreement; and
WHEREAS, as of the closing under the Purchase Agreement each of the Holders
of Registrable Shares owns shares of Common Stock and/or shares of Series A
Preferred Stock in the respective amounts indicated on Schedule 1 hereto.
NOW THEREFORE, in consideration of the premises, covenants and agreements
contained herein, and for other good and valuable consideration, the sufficiency
and adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
Affiliate. "Affiliate" (i) shall mean, as to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person, (ii) as to Apollo, shall
also mean Apollo Advisors, L.P. (a limited partnership, the general partner of
which is Apollo Capital Management, Inc.) or any investment fund, investment
account or investment entity whose investing manager, investment advisor or
general partner, or any principal thereof is Apollo Advisors, L.P. or an
Affiliate of any such Person or Apollo Advisors, L.P. and any Person that owns
any securities of or other equity interest in any of the foregoing; and (iii)
with respect to any such specified Person that is an individual, shall also mean
each Family Group Member of such individual. For the purposes of this
definition, "control", when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Code. "Code" shall mean the Internal Revenue Code of 1986.
Commission. "Commission" shall mean the Securities and Exchange Commission.
Common Stock. "Common Stock" shall mean (i) the common stock, par value
$.01 per share, of the Company and (ii) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock splitup,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Continuously Effective. "Continuously Effective", with respect to a
registration statement under the Securities Act, shall mean that it shall not
cease to be effective and available for sales of Registrable Shares thereunder
for longer than either (i) any fifteen consecutive days, or (ii) an aggregate of
30 days during the period specified in the relevant provision of this Agreement.
Demand Registration. "Demand Registration" shall have the meaning set forth
in Section 2.1(i).
Demand Registration Period. "Demand Registration Period" shall have the
meaning set forth in Section 2.2.
Demanding Holders. "Demanding Holders" shall have the meaning set forth in
Section 2.1(i).
Eligible Holders of Registrable Shares. "Eligible Holders of Registrable
Shares" shall have the meaning set forth in Section 2.4(i).
Employee Benefit Shares. "Employee Benefit Shares" shall mean shares of
Common Stock issued or issuable to an individual upon exercise of such Person's
rights under a stock option
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or purchase right granted pursuant to a stock incentive, stock option, stock
bonus, stock purchase or other employee benefit plan of the Company.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any successor act or statute regulating the transactions
contemplated hereby that were formerly regulated under the Exchange Act that may
be enacted after the date hereof.
Family Group Member. "Family Group Member" shall mean (i) a relative that
is the spouse, parent, grandparent, brother, sister or descendant (whether
natural or adopted) and the respective spouses and descendants of the foregoing,
(ii) any trust for the sole benefit of any Person or Persons referred to in
clause (i) above, or (iii) the estate of any Person referred to in clause (i)
above.
Holder of Registrable Shares. "Holder of Registrable Shares" shall mean
Simon, Apollo, Ramat and Ramat's Family Group Members and the Permitted
Transferees of any such Person's Registrable Shares.
Inspectors. "Inspectors" shall have the meaning set forth in Section 4.8.
Permitted Transferee. "Permitted Transferee" shall mean, as to a Holder of
Registrable Shares (i) an Affiliate of such Person or (ii) any transferee of
such Person if such Affiliate or Transferee shall have executed and delivered a
properly completed agreement substantially in the form of Exhibit A hereto.
Person. "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
Register, Registered and Registration. "Register", "registered" and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
Registered Shares. "Registered Shares" shall mean, with respect to a
specified Demand Registration statement on a specified determination date, the
Registrable Shares registered for Transfer under such Demand Registration
statement and owned by Holders of Registrable Shares on such date.
Registrable Shares. "Registrable Shares" shall mean, subject to Section 9
and Section 11.3: (i) the shares of Common Stock owned by a Holder of
Registrable Shares on the date hereof, (ii) any shares of Common Stock or other
securities issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange by the Company generally for, or in
replacement by the Company
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generally of, such shares of Common Stock, and (iii) shares of Common Stock
acquired during the term of this Agreement by a Holder of Registrable Shares,
including, without limitation, in all cases, any Employee Benefit Shares.
Registrable Shares then outstanding. "Registrable Shares then outstanding"
shall mean, with respect to a specified determination date, Registrable Shares
owned by Holders of Registrable Shares on such date.
Registration Expenses. "Registration Expenses" shall have the meaning set
forth in Section 6.1(i).
Securities Act. "Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor act or statute regulating the transactions
contemplated hereby that were formerly regulated under the Securities Act that
may be enacted after the date hereof.
Selling Holders of Registrable Shares. "Selling Holders of Registrable
Shares" shall mean Holders of Registrable Shares whose Registrable Shares are
included in a registration statement pursuant to this Agreement.
Shelf Registration. "Shelf Registration" shall have the meaning set forth
in Section 2.1(i).
Simon-Affiliated Holders. "Simon-Affiliated Holders" shall mean Simon and
any Simon Entity that is a party to this Agreement.
Simon Designee. "Simon Designee" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇ until the death or
disability of ▇▇▇▇▇▇ ▇▇▇▇▇ and, after any such event, the successor Simon
Designee shall be the managing member of Simon, or such other Person as may be
designated by Simon hereafter until such individual's death or disability and
after any such event, the Simon Designee shall be the Person that Simon shall
designate from time to time in a written notice delivered to the Company and
each Holder of Registrable Shares; provided, however, that any such Person shall
have executed and delivered an appropriately completed agreement substantially
in the form of Exhibit A hereto.
Transfer. "Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of beneficial ownership of (other than pledging, hypothecating or
otherwise transferring as security) and correlative words shall have correlative
meanings; provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer".
Violation. "Violation" shall have the meaning set forth in Section 8.1.
1.2. Usage.
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(i) References to a Person are also references to such Person's assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Shares "owned" by a Holder of Registrable
Shares shall include Registrable Shares beneficially owned by such Person but
which are held of record in the name of a nominee, trustee, custodian, or other
agent, but shall exclude shares of Common Stock held by a Holder of Registrable
Shares in a fiduciary capacity for customers of such Person.
(iii) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(iv) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto, unless the context otherwise requires.
(v) The definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter forms of the
terms defined.
(vi) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like import.
(vii) The term "hereof" and similar terms refer to this Agreement as a
whole.
Section 2. Demand Registration. At any time during the term of this
Agreement:
Section 2.1 Demand Registration Rights.
(i) If any Holder or Holders of Registrable Shares, other than Ramat and
Ramat's Permitted Transferees (a "Non-Ramat Holder"), shall make a written
request to the Company (a "Demand Registration Notice"), such Non-Ramat Holder
or Holders (the "Demanding Holder(s)"), shall be entitled to have all, or any
number in excess of 5,606,268 Registrable Shares, in the case of Apollo and/or
its Permitted Transferees, and 15,015,015 Shares, in the case of Simon and its
Permitted Transferees, (in each case as adjusted for any stock dividend,
distribution, stock-split, recapitalization, recombination or exchange by the
Company generally with respect to such shares) of each such Demanding Holder's
Registrable Shares included (subject to Section 7(i)) in a registration with the
Commission in accordance with the provisions of the Securities Act (a "Demand
Registration"). Any request made pursuant to this Section 2.1(i) shall be
addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Shares to be registered, the intended methods of
disposition thereof and whether the registration shall be for an offering on a
delayed or continuous basis (a "Shelf Registration") pursuant to Rule 415 under
the Securities Act.
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(ii) The Company shall be entitled to postpone for up to six months the
filing of any registration statement otherwise required to be prepared and filed
pursuant to this Section 2, if the Company determines, in its reasonable
judgment (with the concurrence of the managing underwriter, if any), that such
registration and sale would materially interfere with any material financing or
other material transaction involving the Company or any of its subsidiaries and
the Company promptly gives the Demanding Holders notice of such determination;
provided, however, that the Company shall not have postponed pursuant to this
Section 2.1(ii) the filing of any other registration statement otherwise
required to be prepared and filed pursuant to this Section 2 during the 12-month
period ended on the date on which the relevant request pursuant to Section
2.1(i) is deemed given pursuant to Section 15.
(iii) After receiving a request for a Demand Registration pursuant to
Section 2.1(i), the Company shall prepare and file a registration statement with
the Commission as promptly as reasonably practicable; provided, however, the
Company shall not be required to file a registration statement pursuant to a
request for a Demand Registration prior to April 3, 2000. If the Company
receives a request for a Demand Registration thirty or more days prior to April
3, 2000, it shall use its commercially reasonable efforts to file a registration
statement with respect to such Demand Registration on April 3, 2000. Subject to
the proviso to the first sentence of this Section 2.1(iii), the Company shall
use its commercially reasonable efforts to have each Demand Registration
declared effective under the Securities Act as soon as reasonably practicable,
in each instance giving due regard to the need to prepare current financial
statements, conduct due diligence and complete other actions that are reasonably
necessary to effect a registered public offering.
(iv) For all purposes hereunder, Demand Registration Notices received in
accordance with Section 15 by the Company within 45 days of each other shall be
treated as if such Demand Registration Notices were received simultaneously.
2.2 Demand Registration Period. Upon the request of a Demanding Holder, the
Company shall use its commercially reasonable efforts to keep the relevant
registration statement Continuously Effective (i) if a Shelf Registration, for
up to six months, and (ii) if an underwritten offering, for up to 90 days or
until such earlier date as of which all the Registrable Shares under the Demand
Registration statement shall have been sold (a "Demand Registration Period").
Notwithstanding the foregoing, if for any reason the effectiveness or
availability for sales of Registrable Shares under the Demand Registration is
suspended, or postponed as permitted by Section 2.1(ii), the Demand Registration
Period shall be extended by the aggregate number of days of such suspension or
postponement.
2.3. Limit on Demand Registration Rights.
(i) Apollo and its Permitted Transferees shall be entitled to an aggregate
of three (3) Demand Registrations, one of which may be a Shelf Registration;
provided that (x) Apollo and its Permitted Transferees shall not be entilted to
more than two (2) Demand Registrations prior
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to the fourth anniversary of the date hereof, and (y) Apollo and its Permitted
Transferees shall not be entitled to more than one (1) Demand Registration in
any twelve month period.
(ii) Simon and its Permitted Transferees shall be entitled to an aggregate
of three (3) Demand Registrations, one of which may be a Shelf Registration.
(iii) A Demand Registration will not be deemed to have been effected unless
and until it is declared effective by the Commission.
2.4 Piggy-Back Rights of Eligible Holders of Registrable Shares.
(i) Subject to Section 7 and Section 2.2, each Holder of Registrable Shares
other than a Demanding Holder (the "Eligible Holders of Registrable Shares")
shall be entitled to have such Registrable Shares owned by it included in a
Demand Registration statement prepared pursuant to Section 2.1.
(ii) Subject to Sections 7 and 2.2, within seven days following the date on
which a Demand Registration Notice request pursuant to Section 2.1 is deemed
given pursuant to Section 15, the Company shall deliver to each Eligible Holder
of Registrable Shares written notice of such Demand Registration. Upon the
written request of any Eligible Holder of Registrable Shares (requesting that
all or a portion of its Registrable Shares be included in such Demand
Registration Statement) given within seven days following the date on which such
notice is deemed given pursuant to Section 15, the Company shall (1) deliver to
the Demanding Holders copies of such written requests from such Eligible Holders
of Registrable Shares, and (2) cause to be included in such Demand Registration
statement and use its commercially reasonable efforts to be registered under the
Securities Act (subject to Section 7(i)) all the Registrable Shares that each
such Eligible Holder of Registrable Shares shall have requested to be
registered.
(iii) Each Eligible Holder of Registrable Shares shall be entitled to have
its Registrable Shares included in an unlimited number of registrations pursuant
to this Section 2.4.
2.5. Selection of Registration Form. A Demand Registration pursuant to this
Section 2 shall be on such appropriate registration form of the Commission as
shall (i) be selected by the Company and be reasonably acceptable to each of the
Demanding Holders and (ii) permit the disposition of the Registrable Shares in
accordance with the intended method or methods of disposition specified in the
request pursuant to Section 2.1(i).
2.6. Selection of Underwriters and Placement Agents. If any Demand
Registration involves an underwritten offering (whether on a "firm", "best
efforts" or "all reasonable efforts" basis or otherwise), or an agented
offering, each of the Demanding Holders shall have the right to select the
investment banker or bankers and manager or managers to administer such
underwritten offering or the placement agent or agents for such agented
offering; provided, however, that each Person so selected shall be reasonably
acceptable to the Company.
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2.7 Exchange Listing. The Company will use its commercially reasonable
efforts to cause its Common Stock to be listed on a nationally recognized
securities exchange on or prior to the effective date of the first Demand
Registration requested by Apollo and/or its Permitted Transferees.
Section 3. Company Registration. If the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders of the Company other than the Holders of Registrable Shares) any of
its stock or other securities under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration on
Form S-8 or S-4 or equivalent successor form), the Company shall promptly give
each Holder of Registrable Shares written notice of such registration. Upon the
written request of each Holder of Registrable Shares given within seven (7) days
following the date on which such notice is deemed given pursuant to Section 15,
the Company shall cause to be included in such registration statement and use
its commercially reasonable efforts to be registered under the Securities Act
(subject to Section 7(ii)) all of the Registrable Shares that each such Holder
of Registrable Shares shall have requested to be registered. Each Holder of
Registrable Shares shall be entitled to have its Registrable Shares included in
an unlimited number of registrations pursuant to this Section 3.
Section 4. Obligations of the Company. Whenever required under Section 2 or
Section 3 to effect the registration of any Registrable Shares, the Company
shall, as expeditiously as reasonably practicable:
4.1. Preparation of Registration Statement. Prepare and, subject to the
provisions of Section 2.1(iii), file with the Commission a registration
statement with respect to such Registrable Shares and use the Company's
commercially reasonable efforts to cause such registration statement to become
effective as soon as practicable; provided, however, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of the
registration statement and prior to effectiveness thereof, the Company shall
furnish to each of the Selling Holders of Registrable Shares copies of all such
documents in the form substantially as proposed to be filed with the Commission
at least four business days prior to filing for review and comment by such
Selling Holders of Registrable Shares and their counsel.
4.2. Amendments to Registration Statement. Prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act and rules
thereunder with respect to the disposition of all securities covered by such
registration statement. If the registration is for an underwritten offering, the
Company shall amend the registration statement or supplement the prospectus
whenever required by the terms of the underwriting agreement entered into
pursuant to Section 4.5. Subject to Rule 415 under the Securities Act, if the
registration statement is a Shelf Registration, the Company shall amend the
registration statement or supplement the prospectus so that it will remain
current and in compliance with the requirements of the Securities Act for six
months after its effective date, and
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if during such period any event or development occurs as a result of which the
registration statement or prospectus contains a misstatement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, the Company shall promptly notify
each Selling Holder of Registrable Shares, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registrable Shares such
amended or supplemented prospectus, which each such Holder shall thereafter
exclusively use in the Transfer of Registered Shares. Pending such amendment or
supplement, and after written notice from the Company, each such Holder shall
cease making offers or Transfers of Registered Shares pursuant to the prospectus
as it existed prior to such amendment or supplement.
4.3. Providing Copies of Registration Statement. Furnish to each Selling
Holder of Registrable Shares, without charge, such reasonable numbers of copies
of the registration statement, any pre-effective or post-effective amendment
thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related non-confidential documents as any such Selling Holder may reasonably
request in order to facilitate the disposition of Registrable Shares owned by
such Selling Holder.
4.4. Blue Sky Filings. Use the Company's commercially reasonable efforts to
register and qualify the securities covered by such registration statement under
such other securities or Blue Sky laws of such states or jurisdictions as shall
be reasonably requested by the Selling Holders of Registrable Shares; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
4.5. Underwriting Agreement. In the event of any underwritten or agented
offering, enter into and perform the Company's obligations under an underwriting
or agency agreement (including customary indemnification and contribution
obligations to the underwriters or agents), in usual and customary form, with
the managing underwriter or underwriters of, or agents for, such offering. In
order to participate in such underwritten or agented offering, each Selling
Holder of Registrable Shares participating in such underwritten or agented
offering shall also enter into and perform its obligations under each such
agreement. The Company shall also cooperate with the Demanding Holders and the
managing underwriter or agent for such offering in the marketing of the
Registered Shares, including making available the Company's officers,
accountants, counsel, premises, books and records (subject to reasonable
confidentiality provisions) for such purpose.
4.6. Stop Order; Change in Material Facts. Promptly notify each Selling
Holder of Registrable Shares included in such registration statement, (i) of any
stop order issued or threatened to be issued by the Commission in connection
therewith (and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered) and (ii) at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, when the
Company becomes aware of the happening of any event as a result of which the
prospectus included in such
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registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, promptly prepare and file with the Commission, and
furnish to the Selling Holders of Registrable Shares, a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.7. Proxy and Similar Statements. Make generally available to the
Company's security holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days following the end of
the 12-month period beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of each registration statement filed
pursuant to this Agreement.
4.8. Due Diligence Inspection. Make available for inspection by any Selling
Holder of Registrable Shares whose Registrable Shares are included in such
registration statement, any underwriter participating in such offering and their
respective representatives (collectively, the "Inspectors"), all financial and
other information as shall be reasonably necessary to enable them to exercise
their due diligence responsibility under the Securities Act; provided, however,
that information that the Company determines, in good faith, to be confidential
shall not be disclosed to any Inspector unless such Inspector signs a
confidentiality agreement reasonably satisfactory to the Company.
4.9. Comfort Letters. Use the Company's commercially reasonable efforts to
obtain a so-called "cold comfort letter" from its independent public accountants
and legal opinions addressed to the Selling Holders of Registrable Shares, in
customary form and covering such matters of the type customarily covered by such
letters.
4.10. Transfer Agent. Provide and cause to be maintained a transfer agent
for all Registrable Shares covered by such registration statement from and after
a date not later than the effective date of such registration statement.
4.11. Exchange Listing. Use all reasonable efforts to cause the Registrable
Shares covered by such registration statement if the Common Stock is then listed
on a securities exchange or included for quotation in a recognized trading
market, to continue to be so listed or included for a reasonable period of time
after the offering.
Section 5. Information from Selling Holders of Registrable Shares. It shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to the Registrable Shares of any Selling
Holder of Registrable Shares that such Selling Holder shall furnish to the
Company such information regarding such Selling Holder, the number of the
Registrable Shares owned by it, the intended method of disposition of such
securities and such other
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information as shall be required under the Securities Act and the rules
promulgated thereunder to effect the registration of such Selling Holder's
Registrable Shares.
Section 6. Expenses of Registration; Marketing.
6.1 Demand Registration. Expenses in connection with registrations pursuant
to this Agreement shall be allocated and paid as follows: the Company shall bear
and pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Shares with respect to each Demand Registration for
each Selling Holder of Registrable Shares, whether such Selling Holder is a
Demanding Holder or the Registrable Shares of such Selling Holder of Registrable
Shares are included in a Demand Registration pursuant to Section 2.4, (which
right may be assigned to any Permitted Transferee as permitted by Section 9),
including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for the
Company, and of the Company's independent public accountants, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance, and the reasonable fees (up to $50,000) and disbursements of one
firm of counsel for the Selling Holders of Registrable Shares (the "Registration
Expenses"), but excluding underwriting discounts and commissions relating to
Registrable Shares (which shall be paid on a pro rata basis by the Selling
Holders of Registrable Shares based upon the numbers of shares sold).
6.2 Company Registration. The Company shall bear and pay all Registration
Expenses incurred in connection with any registrations pursuant to Section 3 for
each Selling Holder of Registrable Shares (which right may be Transferred to any
Permitted Transferee as permitted by Section 9), but excluding underwriting
discounts and commissions relating to Registrable Shares (which shall be paid on
a pro rata basis by the Selling Holders of Registrable Shares based upon the
number of shares sold).
6.3 Failure to Pay Registration Expenses. Any failure of the Company to pay
any Registration Expenses as required by this Section 6 shall not relieve the
Company of its obligations under this Agreement.
6.4 Marketing of the Offering. The Company shall, at its sole expense,
cooperate in a manner from time to time reasonably requested by the lead
underwriter(s) of an underwritten offering to market in a customary manner the
proposed offering of the Registrable Shares, including without limitation,
meeting with potential investors and developing investor presentations, in all
cases, subject to compliance with the Securities Act and the Exchange Act.
Section 7. Underwriting Requirements. If the total amount of securities,
including Registrable Shares, to be included in a registration pursuant to this
Agreement exceeds the amount of securities that the managing underwriter or
underwriters reasonably believe would materially adversely affect the success of
the offering:
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(i) If such registration is pursuant to Section 2, the Company shall be
required to include in the registration only that number of Registrable Shares
which the managing underwriter or underwriters believe will not materially
adversely affect the success of the offering. Each Selling Holder of Registrable
Shares shall be required to reduce by the same percentage the number of shares
of Common Stock to be registered for sale by it to give effect to the foregoing.
(ii) If such registration is pursuant to Section 3, the Company shall be
entitled to register (1) any number of shares of Common Stock for sale by it in
such registration, and (2) only that number of Registrable Shares, if any, that
the managing underwriter reasonably believes would not materially adversely
affect the success of the offering in which such shares would be included. Each
Selling Holder of Registrable Shares shall be required to reduce by the same
percentage the number of Registrable Shares to be registered for sale by it to
give effect to the foregoing.
Section 8. Indemnification; Contribution. If any Registrable Shares are
included in a registration statement under this Agreement:
8.1 Indemnification by the Company. The Company shall indemnify and hold
harmless each Selling Holder of Registrable Shares, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act or the
Exchange Act, and each officer, director, partner, and employee of such Selling
Holder, against all losses, claims, damages, liabilities and expenses, including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state laws, insofar as
such losses, claims, damages, liabilities and expenses arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein, or any amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; or
(iii) Any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 8.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in
-12-
conformity with written information furnished to the Company by the indemnified
party with respect to itself expressly for inclusion in the registration
statement relating to such registration.
8.2 Indemnification by the Selling Holders of Registrable Shares. To the
extent permitted by applicable law, each Selling Holder of Registrable Shares
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who shall have signed the registration statement, each Person, if
any, who controls the Company within the meaning of the Securities Act, any
other Selling Holder of Registrable Shares, any controlling Person of any such
other Selling Holder and each officer, director, partner, and employee of such
other Selling Holder of Registrable Securities, against all losses, claims,
damages, liabilities and expenses, including attorneys' fees and disbursements
and expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by such
Selling Holder of Registrable Shares with respect to itself expressly for
inclusion in the registration statement relating to such registration; provided,
however, that (x) the indemnification required by this Section 8.2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of the relevant Selling
Holder of Registrable Shares, which consent shall not be unreasonably withheld,
and (y) in no event shall the amount of any indemnity under this Section 8.2
exceed the gross proceeds received by such Selling Holder of Registrable Shares
from the applicable offering covered by such registration statement.
8.3 Notification; Legal Representation. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any
action, suit, proceeding, investigation or threat thereof made in writing for
which such indemnified party may make a claim under this Section 8, such
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, shall relieve such indemnifying party of liability to the
indemnified party under this Section 8 to the extent that such failure is
prejudicial to the indemnifying party's ability to defend such action, but shall
not relieve the indemnifying party of any liability that it may have to any
indemnified party otherwise than pursuant to this Section 8.
-13-
8.4 Contribution in Lieu of Indemnification. If the indemnification
required by this Section 8 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to in this Section 8:
(i) The indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8.1 and Section 8.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in Section 8.4(i). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
8.5. Fullest Extent. If indemnification is available under this Section 8,
the indemnifying parties shall indemnify each indemnified party to the full
extent provided in this Section 9 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 8.4.
8.6. Continuing Obligations. The obligations of the Company and the Selling
Holders of Registrable Shares under this Section 8 shall survive the completion
of any offering of Registrable Shares pursuant to a registration statement under
this Agreement, and otherwise.
Section 9. Transfer of Registration Rights. The rights (or any portion
thereof) of a Holder of Registrable Shares with respect to Registrable Shares
pursuant to this Agreement may be Transferred by such Holder of Registrable
Shares to any of its Permitted Transferees in connection with the Transfer of
Registrable Shares to any such Person, if (x) any such Transferee that is not a
party to this Agreement shall have executed and delivered to the Secretary of
the Company a properly completed agreement substantially in the form of Exhibit
A hereto, and (y) the Transferor shall have delivered to the Secretary of the
Company and the Simon Designee, no later than 15 days following the date of the
Transfer, written notification of such Transfer setting forth the name of the
Transferor, the name and address of the Transferee, and the number of
Registrable Shares
-14-
which shall have been so Transferred. The Transferee of the rights of a Holder
of Registrable Shares shall have no greater demand or piggyback registration
rights than the Holder of Registrable Shares who Transferred such rights has at
the time of such Transfer.
Section 10. Restrictions on Public Sale by Holders of Registrable Shares.
Each Holder of Registrable Shares entitled pursuant to this Agreement to have
Registrable Shares included in a registration statement prepared pursuant to
this Agreement, if so requested by the managing underwriter or underwriters in
an underwritten offering or agent for an agented offering of any Registrable
Shares, shall not effect any public sale or distribution of shares of Common
Stock (including Employee Benefit Shares) or any securities convertible into or
exchangeable or exercisable for shares of Common Stock (including rights,
warrants and options to acquire Employee Benefit Shares) including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten or agented registration), during the ten business day period prior
to, and during the 90-day period beginning on the date such registration
statement is declared effective under the Securities Act by the Commission,
provided that such Selling Holder of Registrable Shares shall be timely notified
of such effective date in writing by the Company or such managing underwriter or
underwriters or agent. In order to enforce the foregoing covenant, the Company
shall be entitled to impose stop-transfer instructions with respect to the
Registrable Shares of each Selling Holder of Registrable Shares until the end of
such period.
Section 11. Covenants of the Company. The Company hereby agrees and
covenants as follows:
11.1 Current Public Information. The Company shall file on a timely basis
all reports required to be filed by it under the Exchange Act. If the Company is
not required to file reports pursuant to the Exchange Act, upon the request of
any Holder of Registrable Shares, the Company shall make publicly available the
information specified in subparagraph (c)(2) of Rule 144 of the Securities Act,
and take such further action as may be reasonably required from time to time and
as may be within the reasonable control of the Company, to enable the Holders of
Registrable Shares to sell Registrable Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act or any similar rule or regulation hereafter adopted by
the Commission.
11.2. Restrictions on Public Sale by the Company. The Company shall not,
and shall cause its majority owned subsidiaries not to, effect any public sale
or distribution of any shares of Common Stock or any securities convertible into
or exchangeable or exercisable for shares of Common Stock (including rights,
warrants and options to acquire shares of Common Stock, other than options to
acquire Employee Benefit Shares), during the ten business days prior to, and
during the 90-day period beginning on, the commencement of a public distribution
of the Registrable Shares pursuant to any registration statement prepared
pursuant to this Agreement. Any agreement entered into after the date of this
Agreement pursuant to which the Company or any of its majority owned
subsidiaries issues or agrees to issue any privately placed securities similar
to any issue of the Registrable Shares (other than (x) Employee Benefit Shares
and (y) securities issued to Persons in exchange for ownership interests in any
Person in connection with a business
-15-
combination in which the Company or any of its majority owned Subsidiaries is a
party) shall contain a provision whereby holders of such securities agree not to
effect any public sale or distribution of any such securities during the periods
described in the first sentence of this Section 11.2, in each case including a
sale pursuant to Rule 144 under the Securities Act (unless such Person is
prevented by applicable statute or regulation from entering into such an
agreement).
11.3. Merger, Consolidations, Reorganizations and Transfers of Assets. The
Company shall not, directly or indirectly, (x) enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation or (y) Transfer or agree to Transfer all or substantially all the
Company's assets unless prior to such merger, consolidation, reorganization or
asset Transfer, the surviving corporation or the Transferee, respectively, shall
have agreed in writing to assume the obligations of the Company under this
Agreement, and for that purpose references hereunder to "Registrable Shares"
shall be deemed to include the securities which the Holders of Registrable
Shares would be entitled to receive in exchange for Registrable Shares pursuant
to any such merger, consolidation or reorganization.
11.4. No Additional Registration Rights. Except with the consent of Apollo
and its Permitted Transferees, the Company shall not grant to any other Person
registration rights with respect to securities of the Company (other than
Employee Benefit Shares) that would entitle the holder thereof to cause the
Company to attempt to effect a registration with respect to such securities
during the term of this Agreement unless (i) the agreement governing such
subsequent registration rights entitles the Holders of Registrable Shares to
have their Registrable Shares included in all registrations pursuant to such
agreement, which registrations shall be deemed to be Company registrations
pursuant to Section 3, except that the provisions of Section 7(i) shall be
applied in lieu of the provisions of Section 7(ii), and (ii) if such subsequent
registration rights agreement shall entitle the holders of registration rights
thereunder to have securities subject thereto included in a Demand Registration
pursuant to Section 2.1, such holders shall be deemed Eligible Holders of
Registrable Shares for purposes of such registrations except that the provisions
of Section 7.(ii) shall apply to such Persons in lieu of the provisions of
Section 7(i).
Section 12. Provisions Affecting Certain Existing Holders of Registration
Rights.
(a) Pursuant to Section 12.4 of the Equity Registration Rights Agreement,
dated June 30, 1993, between the Company and the holders of registrable shares
referred to therein (the "1993 Registration Rights Agreement"), the "Holders of
Registrable Shares" as defined in the 1993 Registration Rights Agreement shall
be entitled to have their Registrable Shares (as defined therein) included in
all registrations pursuant to this Agreement in which the Holders of Registrable
Shares under this Agreement are entitled to be included pursuant to Section 2.4
and Section 3 of this Agreement, on a pro-rata basis, with the Holders of
Registrable Shares under this Agreement and the holders of shares having similar
inclusion rights pursuant to Section 12(b), below, and subject to all terms and
conditions of this Agreement, including without limitation, all obligations,
adjustments, allocations and limitations provided for herein.
-16-
(b) Pursuant to Section 10 of the Shareholders Agreement, dated July 15,
1997, between the Company, Davco Industries, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Davco Shareholders Agreement"), the holders of "Eligible Shares" as
defined in the Davco Shareholders Agreement shall be entitled to have such
Eligible Shares included in all registrations pursuant to this Agreement in
which the Holders of Registrable Shares under this Agreement are entitled to be
included pursuant to Section 2.4 and Section 3 of this Agreement, on a pro-rata
basis, with the Holders of Registrable Shares under this Agreement and the
holders of shares having similar inclusion rights pursuant to Section 12(a)
above, and subject to all terms and conditions of this Agreement, including
without limitation, all obligations, adjustments, allocations and limitations
provided for herein.
Section 13. Amendment; Waiver; Further Assurances.
(i) This Agreement may not be amended except by a written instrument
signed by the Company and each Holder of Registrable Shares at the time of such
amendment (provided that the signature of any such Holder of Registrable Shares
shall not be required if at the time of any such amendment such Person does not
own shares of Common Stock and/or Series A Preferred Stock subject to the terms
of this Agreement, and further provided, Ramat's signature shall not be
required, unless such amendment adversely affects the rights and benefits of
Ramat under this Agreement).
(ii) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 14. Assignment; No Third Party Beneficiaries. This Agreement and
all the provisions hereof shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, assigns, executors,
administrators or successors; provided, however, that except as specifically
provided herein with respect to certain matters, neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned or delegated
by the Company without the prior written consent of Simon, Apollo and Ramat
(provided that the consent of any such Person shall not be required if at the
time of any such assignment such Person does not own shares of Common Stock
and/or Series A Preferred Stock subject to the terms of this Agreement).
-17-
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
Section 16. Notices. All notices given pursuant to this Agreement shall be
in writing and shall be made by hand-delivery, first-class mail (registered or
certified, return receipt requested) or nationally recognized overnight air
courier guaranteeing next business day delivery to the relevant address
specified on Schedule 1 to this Agreement or the relevant agreement in the form
of Exhibit A whereby such party became bound by the provisions of this
Agreement. Except as otherwise provided in this Agreement, each such notice
shall be deemed given: at the time delivered, if personally delivered; or if
mailed, three days after being mailed by certified or registered mail, postage
prepaid, return receipt requested; and the next business day after timely
delivery to the courier, if sent by nationally recognized overnight air courier
guaranteeing next business day delivery.
Section 17. Entire Agreement. This Agreement together with the Securities
Purchase Agreement dated as of the date hereof between the Company and the
parties named therein and the other agreements referred to herein and therein
supersede all prior agreements between or among any of the parties hereto with
respect to the subject matter contained herein and therein, and such agreements
embody the entire understanding among the parties relating to such subject
matter.
Section 18. Injunctive Relief. Each of the parties hereto hereby
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party will be irreparably harmed
(which harm is acknowledged to be not readily measurable in damages) and that
there will be no adequate remedy at law. Each of the parties therefore agrees
that in the event of such a breach hereof the aggrieved party shall have the
right to obtain injunctive relief in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach hereof without
the requirement of posting any bond or security or proving any special damages.
By seeking or obtaining any such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be
entitled.
Section 19. Term of Agreement. This Agreement may be terminated at any time
by a written instrument signed by Simon, Apollo and Ramat. Unless sooner
terminated in accordance with the preceding sentence, this Agreement shall
terminate in its entirety on (i) the ten-year anniversary of this Agreement, or
(ii) such date as there shall be no Registrable Shares outstanding, provided
that any shares of Common Stock previously subject to this Agreement shall not
be Registrable Shares following the sale of any such shares in an offering
registered pursuant to this Agreement.
Section 20. Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
-18-
Section 21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
Section 22. Consent to Jurisdiction. All actions and proceedings arising
out of, or relating to, this Agreement shall be heard and determined in any
state or federal court sitting in New York. Each of the undersigned, by
execution and delivery of this Agreement, expressly and irrevocably consents and
submits to the personal jurisdiction of any of such courts in any such action or
proceeding; (ii) consents to the service of any complaint, summons, notice or
other process relating to any such action or proceeding by delivery thereof to
such party by hand or by certified mail, delivered or addressed as set forth in
Section 15 of this Agreement; and (iii) waives any claim or defense in any such
action or proceeding based on any alleged lack of personal jurisdiction,
improper venue or forum non conveniens or any similar basis.
Section 23. Severability. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
ARIS INDUSTRIES, INC.
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇. Ramat
Title: President and Chief Executive Officer
THE SIMON GROUP, L.L.C.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Member
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇ PARTNERS, L.P.,
By: AIF-II, L.P., its general partner
By: Apollo Advisors, L.P.,
its general partner
By: Apollo Capital Management, Inc., its general
partner
By: _____________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
AIF-II, L.P.
By: Apollo Advisors, L.P.,
its general partner
By: Apollo Capital Management, Inc., its general partner
By: _______________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
______________________________
▇▇▇▇▇▇▇ ▇. RAMAT, Individually
-20-
SCHEDULE 1
to the Equity Registration Rights Agreement
================================================================================
Names and Addresses for Notices;
Holdings of Subject Shareholders
================================================================================
COMPANY
If to the Company:
Aris Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. Ramat
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Herrick, Feinstein, LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
SIMON DESIGNEE
If to the Simon Designee:
▇▇▇▇▇▇ ▇▇▇▇▇
c/o AS Enterprises
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
HOLDERS OF REGISTRABLE SHARES
If to The Simon Group, L.L.C.:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
c/o AS Enterprises
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
24,107,145 shares of Common Stock
2,093,790 shares of Series A Preferred Stock
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Apollo Aris Partners, L.P.
or if to AIF-II, L.P.:
to such Person
c/o Apollo Advisors, L.P.
Two Manhattanville Road
Purchase, New York 10577
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
5,804,820 shares of Common Stock owned by Apollo Aris Partners, L.P.
5,892,856 shares of Common Stock owned by AIF-II, L.P.
512,113 shares of Series A Preferred Stock owned by AIF-II, L.P.
11,013,986 Registrable Shares owned by AIF-II, L.P.
with a copy to:
Herrick, Feinstein, LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇. Ramat:
c/o Aris Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
637,465 shares of Common Stock *
* As of the date hereof, 105,135 additional shares of Common Stock are held by
three trusts for the benefit of three children of ▇▇▇▇▇▇▇ ▇. Ramat. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and Ora Ramat are the co-trustees of such trusts.
with a copy to:
Herrick, Feinstein, LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
to the Equity Registration Rights Agreement
AGREEMENT TO BE BOUND
BY THE EQUITY REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ___ shares of the common stock,
$.01 par value per share [or describe other capital stock received in exchange
for such common stock] (the "Registrable Shares"), of Aris Industries, Inc., a
New York corporation (the "Company"), as a condition to the receipt of such
Registrable Shares, acknowledges that matters pertaining to the registration of
such Registrable Shares is governed by the Equity Registration Rights Agreement
dated as of February 26, 1999 initially among the Company and the Holders of
Registrable Shares referred to therein (the "Agreement"), and the undersigned
hereby (1) acknowledges receipt of a copy of the Agreement, and (2) agrees to be
bound as a Holder of Registrable Shares by the terms of the Agreement, as the
same has been or may be amended from time to time pursuant to the terms thereof.
Agreed to this _____day of _____________, _____________.
___________________________________
___________________________________*
___________________________________*
* Include address for notices.
TABLE OF CONTENTS
Page
Section 1. Definitions and Usage............................................1
1.1. Definitions...................................................2
1.2. Usage.........................................................5
Section 2. Demand Registration..............................................5
2.1. Demand Registration Rights....................................5
2.2. Demand Registration Period....................................6
2.3. Limit on Demand Registration Rights...........................7
2.4. Piggy-Back Rights of Eligible Holders of Registrable
Shares......................................................7
2.5. Selection of Registration Form................................8
2.6. Selection of Underwriters and Placement Agents................8
2.7. Exchange Listing..............................................8
Section 3. Company Registration.............................................8
Section 4. Obligations of the Company.......................................8
4.1. Preparation of Registration Statement.........................8
4.2. Amendments to Registration Statement...........................9
4.3. Providing Copies of Registration Statement.................9
4.4. Blue Sky Filings..............................................9
4.5. Underwriting Agreement.......................................10
4.6. Stop Order; Change in Material Facts.........................10
4.7. Proxy and Similar Statements.................................10
4.8. Due Diligence Inspection.....................................10
4.9. Comfort Letters..............................................11
4.10. Transfer Agent..............................................11
4.11. Exchange Listing............................................11
Section 5. Information from Selling Holders of Registrable Shares..........11
Section 6. Expenses of Registration; Marketing.............................11
6.1. Demand Registration..........................................11
6.2. Company Registration.........................................12
6.3. Failure to Pay Registration Expenses.........................12
6.4. Marketing of the Offering....................................12
Section 7. Underwriting Requirements.......................................12
Section 8. Indemnification; Contribution....................................12
8.1. Indemnification by the Company................................12
8.2. Indemnification by the Selling Holders of Registrable
Shares......................................................13
8.3. Notification; Legal Representation............................14
8.4. Contribution in Lieu of Indemnification.......................14
8.5. Fullest Extent................................................15
8.6. Continuing Obligations........................................15
Section 9. Transfer of Registration Rights..................................15
Section 10. Restrictions on Public Sale by Holders of Registrable
Shares..........................................................15
Section 11. Covenants of the Company........................................16
11.1. Current Public Information...................................16
11.2. Restrictions on Public Sale by the Company...................16
11.3. Merger, Consolidations, Reorganizations and Transfers
of Assets...................................................16
11.4. No Additional Registration Rights............................17
Section 12. Provisions Affecting Certain Existing Holders of
Registration Rights.............................................17
Section 13. Amendment; Waiver; Further Assurances...........................18
Section 14. Assignment; No Third Party Beneficiaries........................18
Section 15. Governing Law...................................................18
Section 16. Notices.........................................................18
Section 17. Entire Agreement................................................19
Section 18. Injunctive Relief...............................................19
Section 19. Term of Agreement...............................................19
Section 20. Section Headings................................................19
Section 21. Counterparts....................................................19
Section 22. Consent to Jurisdiction.........................................19
Section 23. Severability....................................................20
SCHEDULES AND EXHIBITS
SCHEDULE 1 Names, Addresses and Holdings of Holders of
Registrable Shares........................................S-1
EXHIBIT A Agreement to be Bound.....................................A-13