EXECUTION COPY
EXHIBIT 99.2
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
SALTON, INC.
AND
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
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DATED AS OF DECEMBER 28 2006
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TABLE OF CONTENTS
Page
1. Registration Rights...................................................1
1.1 Definitions .................................................1
1.2 Request for Registration ....................................3
1.3 Company Registration ........................................4
1.4 Form S-3 Registration .......................................5
1.5 Obligations of the Company ..................................7
1.6 Registration In Connection With Hedging Transactions .......11
1.7 Furnish Information; Limitation of Obligations .............11
1.8 Expenses of Registrations ..................................12
1.9 Indemnification ............................................12
1.10 Rule 144 Reporting .........................................14
1.11 Assignment of Registration Rights ..........................15
1.12 Limitations on Subsequent Registration Rights ..............15
1.13 Additional Restrictions ....................................15
1.14 Confidential Information ...................................16
1.15 Termination of Registration Rights .........................16
2. Representations and Warranties of the Company .......................16
3. Miscellaneous .......................................................17
3.1 Successors and Assigns .....................................17
3.2 Governing Law...............................................17
3.3 Counterparts................................................17
3.4 Notices.....................................................17
3.5 Attorneys' Fees.............................................17
3.6 Amendments and Waivers .....................................17
3.7 Other Agreements ...........................................18
3.8 Specific Performance .......................................18
3.9 Severability ...............................................18
3.10 Rules of Construction ......................................18
3.11 Entire Agreement ...........................................19
EXHIBITS
Exhibit A -- Shares of Common Stock
Exhibit B -- Addresses for Notice
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SALTON, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of December 28 2006 by and between Salton, Inc., a Delaware
corporation (the "Company") and Harbinger Capital Partners Master Fund I, Ltd.,
a company organized under the laws of the Cayman Islands (the "Investor").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of
December 28, 2006 (as the same may be amended, modified and supplemented from
time to time prior to the date hereof, the "Stock Purchase Agreement"), by and
among the Company and the Investor, the Investor has agreed with the Company to
purchase shares of Common Stock (as hereinafter defined); and
WHEREAS, after giving effect to the transactions contemplated by the
Stock Purchase Agreement, the Investor will own the number of shares of Common
Stock (as hereinafter defined) set forth opposite the Investor's name on Exhibit
A hereto.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises set forth herein and other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS.
For purposes of this Agreement:
(a) "Common Stock" means the common stock, $0.01 par value per share,
of the Company.
(b) "Disclosure Package" means (i) the preliminary prospectus, (ii)
each Free Writing Prospectus and (iii) all other information that is deemed,
under Rule 159 under the Securities Act, to have been conveyed to purchasers of
securities at the time of sale (including, without limitation, a contract of
sale).
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(d) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any successor form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(e) "Free Writing Prospectus" means any "free writing prospectus," as
defined in Rule 405 of the Securities Act.
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(f) "Hedging Counterparty" means a broker-dealer registered under
Section 15(b) of the Exchange Act or an affiliate thereof or any other financial
institution or third party.
(g) "Hedging Transaction" means any transaction involving a security
linked to the Registrable Class Securities or any security that would be deemed
to be a "derivative security" (as defined in Rule 16a-1(c) under the Exchange
Act) with respect to the Registrable Class Securities or any transaction (even
if not a security) which would (were it a security) be considered such a
derivative security, or which transfers some or all of the economic risk of
ownership of the Registrable Class Securities, including, without limitation,
any forward contract, equity swap, put or call, put or call equivalent position,
collar, non-recourse loan, sale of exchangeable security or similar transaction.
For the avoidance of doubt, the following transactions shall be deemed to be
Hedging Transactions:
(i) transactions by a Holder in which a Hedging Counterparty
engages in short sales of Registrable Class Securities pursuant to a prospectus
and may use Registrable Securities to close out its short position;
(ii) transactions pursuant to which a Holder sells short
Registrable Class Securities pursuant to a prospectus and delivers Registrable
Securities to close out its short position; and
(iii) transactions by a Holder in which the Holder delivers, in
a transaction exempt from registration under the Securities Act, Registrable
Securities to the Hedging Counterparty who will then publicly resell or
otherwise transfer such Registrable Securities pursuant to a prospectus or an
exemption from registration under the Securities Act.
(h) "Holder" means any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with Section 1.11
hereof.
(i) "Law" means any statute, law, ordinance, rule or regulation of
any governmental entity.
(j) "Public Sale" means any sale of Registrable Securities to the
public pursuant to a public offering registered under the Securities Act or to
the public through a broker or market-maker pursuant to the provisions of Rule
144 (or any successor rule) adopted under the Securities Act or any other public
offering not required to be registered under the Securities Act.
(k) "Register," "registered" and "registration" 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 of effectiveness of such registration statement or document.
(l) "Registrable Class Securities" means securities of the Company
that are of the same class and series as the Registrable Securities.
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(m) "Registrable Securities" means (i) the Common Stock owned by
Holders on the date hereof; (ii) any shares of Common Stock acquired after the
date hereof by any of the Holders and (iii) any Common Stock issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the shares referenced in (i) or (ii) above;
provided, that Registrable Securities shall not include shares of Common Stock
previously (A) sold in a Public Sale, or (B) sold in a transaction in which the
transferor's rights hereunder are not assigned in accordance with Section 1.11
hereof.
(n) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
(o) The term "SEC" means the Securities and Exchange Commission.
(p) "Securities Act" means the Securities Act of 1933, as amended.
1.2 REQUEST FOR REGISTRATION.
(a) If at any time after March 22, 2007 the Company shall receive a
written request from the Holders of at least a majority of the Registrable
Securities then outstanding (the "Initiating Holders") that the Company file a
registration statement under the Securities Act covering the registration of at
least 25% of the Registrable Securities then outstanding, or a lesser percent if
the anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $5.0 million, then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) use commercially reasonable efforts to effect promptly, the
registration under the Securities Act of all Registrable Securities which the
Holders request to be registered, subject to the limitations of subsection
1.2(b), in a written request received by the Company within fifteen (15) days of
the making of the notice pursuant to Section 1.2(a)(i).
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection 1.2(a)
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). The underwriter or underwriters will be selected by the
Company, subject to the approval of a majority in interest of the Initiating
Holders. In such event, the right of any Holder to include Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.5(i)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.2, if the managing
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underwriter advises the Company and the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated first among all Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of Registrable
Securities of the Company owned by each Holder at the time of the filing of the
registration statement; provided, however, that the number of shares of
Registrable Securities held by Holders to be included in such underwriting shall
not be reduced unless all other securities are first entirely excluded from the
underwriting. Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the Company's chief executive officer or the chairman of
the board of directors of the Company (the "Board") stating that in the good
faith judgment of the Board, as evidenced by a resolution by the Board, it would
be seriously detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
taking action with respect to such filing for a period of not more than sixty
(60) days after receipt of the request of the Initiating Holders; provided, that
the Company may not utilize this right more than once in any twelve month
period; provided further, that this right is cumulative to the right under
Section 1.4(b)(iii) such that the Company may only defer the filing of a
registration statement under Section 1.2(c) or Section 1.4(b)(iii) once in any
twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected one (1) registration pursuant
to this Section 1.2 and such registration statement has been declared or ordered
effective and has remained effective for a period of at least 180 days;
provided, that if such request pursuant to this Section 1.2 is subsequently
withdrawn by the requester in writing, it shall not be counted against the
limitation of requests set forth in this Section 1.2(d)(i);
(ii) If the Company has effected a registration pursuant to this
Section 1.2 within the preceding six (6) months, and such registration has been
declared or ordered effective; or
(iii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.4 below.
1.3 COMPANY REGISTRATION.
(a) If (but without any obligation to do so) the Company proposes to
register any of its capital stock under the Securities Act for its own account
or the account of any of its stockholders with registration rights (other than
in connection with a registration effected solely to implement an employee
benefit plan or arrangement or a business combination transaction or
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any other similar transaction for which a registration statement on Form S-4
under the Securities Act or any comparable successor form is applicable), the
Company will promptly give written notice thereof to the Holders of Registrable
Securities at least twenty (20) days prior to the filing of such registration
statement, or such lesser time that is reasonable taking into account the
Company's contractual obligation to file such registration statement. Upon the
written request of each Holder given within fifteen (15) days after the giving
of such notice by the Company, the Company shall, subject to the provisions of
this Section 1.3, cause to be registered under the Securities Act in such
registration statement all of the Registrable Securities that each such Holder
has requested to be registered.
(b) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
this Section 1.3 to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it, and then only in such quantity as
the underwriters determine in their sole discretion will not jeopardize the
success of the offering by the Company. Regardless of any other provision of
this Section 1.3, if the underwriter advises the Company that marketing factors
require a reduction in the number of shares to be underwritten, then the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated first, to the Company and the Person or Persons requesting
such registration (if other than the Company) shall be entitled to participate
in accordance with the relative priorities, if any, as shall exist among them;
and then second, all other holders of securities having the right to include
such securities in such registration (including the Holders of the Registrable
Securities) shall be entitled to participate pro rata based on the number of
shares requested to be sold by such Holders. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 1.3
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The registration expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 1.8 hereof.
1.4 FORM S-3 REGISTRATION.
Notwithstanding anything in Section 1.2 or Section 1.3 to the
contrary, if at any time after March 22, 2007, in case the Company shall receive
from any Holders of Registrable Securities then outstanding a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, and the Company is then eligible to
use Form S-3 for the resale of Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) promptly effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company; provided, that the
Company shall not be
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obligated to effect any such registration, qualification or compliance, pursuant
to this Section 1.4:
(i) if Form S-3 is not available for such offering by the
Holders;
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $2.5 million;
(iii) if the Company shall furnish to the Holders a certificate
signed by the Company's chief executive officer or chairman of the Board stating
that in the good faith judgment of the Board as evidenced by a resolution by the
Board, it would be seriously detrimental to the Company and its stockholders for
such Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than sixty (60) days after receipt of the
request of the Holder or Holders under this Section 1.4; provided, that the
Company shall not utilize this right more than once in any twelve-month period;
provided further, that this right is cumulative to the right under Section
1.2(c) such that the Company may only defer the filing of a registration
statement under Section 1.2(c) or Section 1.4(b)(iii) once in any twelve-month
period;
(iv) if the Company has, within the six (6) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders pursuant to this Section 1.3, provided, that any such
registration shall be deemed to have been "effected" if the registration
statement relating thereto (A) has become or been declared or ordered effective
under the Securities Act, and any of the Registrable Securities of the
Initiating Holder(s) included in such registration have actually been sold
thereunder and (B) has remained effective for a period of at least 180 days; or
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered promptly after receipt of the request or requests of the
Holders. Registrations effected pursuant to this Section 1.4 shall not be
counted as requests for registration effected pursuant to Section 1.2 or Section
1.3 respectively.
(d) If the Holders intend to distribute the Registrable Securities
covered by their request under this Section 1.4 by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 1.4 and the Company shall include such information in the written
notice referred to in subsection 1.4(a). The underwriter or underwriters will be
selected by the Company, subject to the approval of a majority in interest of
the Holders participating in such registration. In such event, the right of any
Holder to include Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Holders
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participating in the registration and the Holder) to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in subsection 1.5(i))
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Section 1.4, if the managing underwriter advises the Company and the
Holders participating in such underwriting in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated first among all Holders thereof, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder at the time of the filing of the registration statement; provided,
however, that the number of shares of Registrable Securities held by Holders to
be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting. Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
1.5 OBLIGATIONS OF THE COMPANY.
Whenever required under this Section 1 to effect the registration of
any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use commercially reasonable efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for 180 days or, if
earlier, until the distribution contemplated in the registration statement has
been completed; provided, that, in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous or
delayed basis, such 180-day period shall be extended, if necessary, to keep the
registration statement continuously effective, supplemented and amended to the
extent necessary to ensure that it is available for sales of such Registrable
Securities, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the SEC
as announced from time to time, until the earlier of when (i) the Holders have
sold all of such Registrable Securities and (ii) the Holders may sell all of
such Registrable Securities on a single day pursuant to Rule 144(k) promulgated
under the Securities Act as determined by the counsel to the Company pursuant to
a written opinion letter to such effect, addressed and acceptable to the
Company's transfer agent and the affected Holders.
(b) Prepare and file with the SEC 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 with respect to the disposition of all securities covered by such
registration statement provided that before filing a registration statement, or
any amendments or supplements thereto, the Company will furnish to counsel
selected by the Holders of the Registrable Securities covered by such
registration statement to represent such Holders, copies of all documents
proposed to be filed, which documents (other than the documents incorporated by
reference therein) will be subject to the review of such counsel.
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(c) Furnish to the Holders and any Hedging Counterparty, if any, such
numbers of copies of such registration statement, the prospectus included in
such registration statement (including each preliminary prospectus, summary
prospectus and Free Writing Prospectus), and of each amendment and supplement
thereto (in each case including all exhibits filed therewith, including any
documents incorporated by reference), in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the public sale or other disposition of Registrable Securities
owned by such Holder or Hedging Counterparty.
(d) Register and qualify the securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions as
shall be reasonably requested by the Holders and do any and all other acts and
things which may be reasonably necessary or advisable to enable such Holders to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Holder; provided, that the Company shall not be required in
connection therewith or as a condition thereto (i) to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions, (ii) subject itself to taxation in any jurisdiction or (iii) in
the case of a registration pursuant to Section 1.3, register or qualify such
Holder's Registrable Securities in any jurisdiction where shares to be sold by
the Company or any other Person initiating such registration are not to be
registered or qualified.
(e) Notify each Holder of Registrable Securities covered by such
registration statement and any Hedging Counterparty, if applicable, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the Company's becoming aware that the prospectus included in
such 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 the light of the
circumstances then existing, and at the request of any such Holder or Hedging
Counterparty, prepare and furnish to such Holder and Hedging Counterparty a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such amended or supplemental prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(f) Cause all such Registrable Securities registered pursuant to this
Agreement to be listed on any securities exchange on which any shares of the
Common Stock are then listed.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(h) Enter into and perform its obligations under such customary
agreements (including an underwriting agreement in customary form), which may
include indemnification provisions in favor of underwriters and other persons in
addition to, or in substitution for the provisions of Section 1.9 hereof, and
take such other actions as sellers of a majority of shares of such Registrable
Securities, a Hedging Counterparty, if any, or the underwriters, if any,
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reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities or any Registrable Class Securities in connection with
any Hedging Transaction.
(i) Make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement, by any Hedging Counterparty, and by any attorney, accountant or other
agent retained by any such seller, any such underwriter, or any such Hedging
Counterparty all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, Hedging Counterparty, attorney, accountant or
agent in connection with such registration statement.
(j) Obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent, and, in connection with a
Hedging Transaction, to any Hedging Counterparty, an opinion or opinions from
counsel for the Company in customary form and in form, substance and scope
reasonably satisfactory to such Holders, underwriters or agents and their
counsel.
(k) Use commercially reasonable efforts to prevent the issuance of
any stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the use of any preliminary prospectus
relating to such registration statement, and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest possible moment.
(l) Respond promptly to any comments received from the SEC and
request acceleration of effectiveness promptly after it learns that the
Commission will not review the registration statement or after it has satisfied
comments received from the SEC.
(m) Promptly notify the Holders of Registrable Securities to be sold
and confirm such notice in writing, (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with respect to a
registration statement or any post-effective amendment, when the same has become
effective, (ii) of the receipt of any comments from the SEC, (iii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a registration statement or related prospectus,
(iv) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a registration
statement, or of any order preventing or suspending the use of any preliminary
prospectus relating to such registration statement, or the initiation of any
proceedings for such purpose(s), (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the discovery of any event that makes any statement made in
such registration statement or related prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in a registration statement,
prospectus or any such document so that, in the case of the registration
statement, it 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, in light of the circumstances under which
they were made, and, in the case of the prospectus, it will not contain any
untrue statement of a material fact or omit to state any material
9
fact required to be stated or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading and (vii) of the
Company's reasonable determination that a post-effective amendment to a
registration statement would be appropriate. In the event a registration
statement is interfered with by any event of the kind described in clauses (iv)
through (vii) of the first sentence of this Section 1.5(m) for more than twenty
(20) days, such registration shall not be deemed "effected" for purposes of
Section 1.2(d) or Section 1.4(b).
(n) If requested by the managing underwriter or agent or any Holder
of Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, without limitation, with respect to
the number of Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor by such underwriter
or agent 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
practicable after being notified of the matters incorporated in such prospectus
supplement or post-effective amendment.
(o) Cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or such Holders may
request.
(p) Cooperate with each seller of Registrable Securities, any Hedging
Counterparty, and each underwriter or agent participating in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
(q) With respect to each Free Writing Prospectus or other materials
to be included in the Disclosure Package, ensure that no Registrable Securities
be sold "by means of" (as defined in Rule 159A(b) under the Securities Act) such
Free Writing Prospectus or other materials without the prior written consent of
the Holders of the Registrable Securities covered by such registration
statement, which Free Writing Prospectuses or other materials shall be subject
to the review of counsel to such Holders.
(r) Make all required filings of all Free Writing Prospectuses with
the Commission.
Each Holder shall be deemed to have agreed by acquisition of the
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in clauses (iv) through (vii) of
subsection (m) of this section 1.5, such Holder will forthwith discontinue its
disposition of the Registrable Securities pursuant to the Registration Statement
relating thereto until Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection (e) of this section 1.5 and, if so
directed by the Company, will deliver to the Company all copies, other than
permanent file copies, then in
10
Holder's possession of the prospectus relating to the Registrable Securities
current at the time of receipt of such notice.
1.6 REGISTRATION IN CONNECTION WITH HEDGING TRANSACTIONS.
(a) The Company acknowledges that from time to time a Holder may seek
to enter into one or more Hedging Transactions with a Hedging Counterparty.
Notwithstanding anything to the contrary provided herein, the Company agrees
that, in connection with any proposed Hedging Transaction, if, in the reasonable
judgment of counsel to the Holder (after good faith consultation with counsel to
the Company), it is necessary or desirable to register under the Securities Act
such Hedging Transaction or sales or transfers (whether short or long) of
Registrable Class Securities in connection therewith, then the Company shall use
its commercially reasonable efforts to take such actions (which may include
among other things, the filing of a post-effective amendment to any shelf
registration statement to include additional or changed information that is
material or is otherwise required to be disclosed, including, without
limitation, a description of such Hedging Transaction, the name of the Hedging
Counterparty, identification of the Hedging Counterparty or its affiliates as
underwriters or potential underwriters, if applicable, or any change to the plan
of distribution) as may reasonably be required to register such Hedging
Transactions or sales or transfers of Registrable Class Securities in connection
therewith under the Securities Act in a manner consistent with the rights and
obligations of the Company hereunder with respect to the registration of
Registrable Securities.
(b) The Company agrees to include in each prospectus supplement filed
in connection with any proposed Hedging Transaction language mutually agreed
upon by the Company, the Holder and the Hedging Counterparty describing such
Hedging Transaction.
(c) Any information regarding the Hedging Transaction included in a
registration statement or prospectus pursuant to this Section 1.6 shall be
deemed to be information provided by the Holder selling Registrable Securities
pursuant to such registration statement or prospectus for purposes of Section
1.5 of this Agreement.
(d) If in connection with a Hedging Transaction a Hedging
Counterparty or any affiliate thereof is (or may be considered) an underwriter
or selling securityholder, then it shall be required to provide customary
indemnities to the Company regarding itself, the plan of distribution and like
matters.
1.7 FURNISH INFORMATION; LIMITATION OF OBLIGATIONS.
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
Securities of any selling Holder as to which a registration is being effected to
furnish, and such Holder shall furnish, to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be reasonably required to effect the
registration of such Holder's Registrable Securities.
11
1.8 EXPENSES OF REGISTRATIONS.
All expenses other than underwriting discounts and commissions
incurred in connection with registrations pursuant to this Section 1, including
without limitation all registration, filing and qualification fees, printers'
and accounting fees and reasonable fees and disbursements of counsel for the
Company and one counsel for the participating Holders, shall be borne by the
Company; provided, that the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 1.2 or Section
1.4 as applicable, if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear all such expenses
incurred), unless, in the case of a registration requested under Section 1.2,
the Holders of a majority of the Registrable Securities agree to forfeit one
demand registration pursuant to Section 1.2.
1.9 INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Securities Act)
for such Holder, their respective affiliates and controlling persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the partners, officers, directors members, representatives, agents and
employees of each Holder, and each such person (collectively, the "Holder
Indemnified Parties"), against any losses, claims, damages or liabilities (joint
or several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively, a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
without limitation 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, (iii) any untrue
statement or alleged untrue statement of a material fact contained in the
Disclosure Package or 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 in the light of the circumstances under which they were
made, or (iv) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the offering covered by such registration
statement; and the Company will reimburse each such Holder Indemnified Party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that the indemnity agreement contained in this Section 1.9(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the written consent
of the Company, which consent shall not be unreasonably withheld, nor shall the
Company be liable in any such case to any Holder Indemnified Party for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished by such Holder Indemnified Party under an
instrument duly executed by any such Holder Indemnified Party expressly for use
in connection with such registration by such Holder;
12
provided further, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Holder Indemnified
Party from whom the person asserting any such losses, claims, damages or
liabilities purchased shares in the offering, if a copy of the prospectus (as
then amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such Holder
Indemnified Party to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the shares to such
person, and if the prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability. For purposes of
the last proviso to the immediately preceding sentence, the term "prospectus"
shall not be deemed to include the documents, if any, incorporated therein by
reference, and no person who participates as an underwriter in the offering or
sale of Registrable Securities or any other person, if any, who controls such
underwriter within the meaning of the Securities Act, shall be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any preliminary prospectus or the final prospectus to any person other than a
person to whom such underwriter had delivered such incorporated document or
documents in response to a written request therefor. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such party and shall survive the transfer of such securities.
(b) To the extent permitted by law, each Holder shall, if shares held
by such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Securities Act, each underwriter and each other stockholder
selling securities under such registration statement against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) 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 Holder under
an instrument duly executed by such Holder expressly for use in connection with
such registration; and each Holder shall reimburse any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 1.9(b), in connection with investigating or defending any such loss,
claim, damage, liability or action if it is judicially determined that there was
such violation; provided, that the indemnity agreement contained in this Section
1.9(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the written
consent of such Holder, which consent shall not be unreasonably withheld;
provided further, that the liability of each Holder under this Section 1.9(b)
shall be limited to an amount equal to the net proceeds actually received and
retained by such Holder in the registered public offering out of which such
liability arises, unless such liability arises out of or is based on willful
misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.9, 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
13
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, that an indemnified party (together with
all other indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees 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 counsel in such proceeding.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9 to the extent so prejudiced, but the omission so to deliver written notice
to the indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section 1.9.
(d) If the indemnification provided for in this Section 1.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the Violation that resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations;
provided, that in no event shall any contribution by a Holder that is a selling
party under this Section 1.9(d) exceed the net proceeds from the offering
received by such Holder. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(f) The obligations of the Company and Holders under this Section 1.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1 and otherwise.
1.10 RULE 144 REPORTING.
With a view to making available to the Holders the benefits of Rule
144 promulgated under the Securities Act and any other rule or regulation of the
SEC which may
14
permit the sale of the Registrable Securities to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to use
commercially reasonable efforts to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon written request: (i) a written statement by the
Company as to its compliance with the reporting requirements of SEC Rule 144 and
the Exchange Act; (ii) a copy of the most recent annual or quarterly report of
the Company; and (iii) such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
1.11 ASSIGNMENT OF REGISTRATION RIGHTS.
A Holder may assign any or all of its rights hereunder (but only with
all related obligations) to any person or entity to whom the Holder may transfer
or assign its Common Stock; provided, that: (i) the Company is, within ten (10)
days after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement; and (iii) such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act.
1.12 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
The Company shall not, without the prior written consent of the
Holders of at least a majority of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would grant to such holder or prospective holder
registration rights superior to or, except with respect to piggyback or
incidental registration rights, on parity with those granted under this Section
1.
1.13 ADDITIONAL RESTRICTIONS.
So long as this Agreement is in effect, each of the Holders of
Registrable Securities agrees that during the 90-day period following the date
any Registration Statement (which such Holder had the opportunity to participate
in under Section 1.2) with respect to an underwritten public offering of equity
securities of the Company becomes effective, such Holder will not effect any
sale or distribution of equity securities of the Company or any other security
of the Company convertible, exchangeable or exercisable (directly or indirectly)
for or into equity securities of the Company (other than pursuant to such
Registration Statement) including, without limitation, pursuant to Rule 144 or
in a transaction which would require registration under the Securities Act,
unless the managing underwriter of such public offering otherwise agrees in
writing.
15
1.14 CONFIDENTIAL INFORMATION.
Each Holder of Registrable Securities agrees that any information
obtained pursuant to this Agreement which the Company identifies to be
proprietary to the Company or otherwise confidential will not be disclosed
without the prior written consent of the Company. Notwithstanding the foregoing,
each Holder of Registrable Securities may disclose such information, on a need
to know basis, to their employees, accountants or attorneys (so long as each
such person to whom confidential information is disclosed agrees to keep such
information confidential) or to the extent required by applicable law, rule,
regulation or court order. Each Holder of Registrable Securities further
acknowledges, understands and agrees that any confidential information will not
be utilized in connection with purchases and/or sales of the Company's
securities except in compliance with applicable state and federal antifraud
statutes.
1.15 TERMINATION OF REGISTRATION RIGHTS.
No Holder shall be entitled to exercise any right provided for in
this Section 1 after such time at which all Registrable Securities held by such
Holder (and any affiliate of the Holder or other person with whom such Holder
must aggregate sales under Rule 144 of the Securities Act) can be sold without
restriction (including volume and manner-of-sale restrictions) on a single day
without registration in compliance with Rule 144 of the Securities Act (or any
similar provision then in effect) and such Holder has received, upon such
Holder's request, an opinion of counsel to the Company to that effect.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Holders as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) The Company has the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery by the Company of this Agreement have been duly authorized and
approved by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that its enforceability may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(c) The execution and delivery by Parent of this Agreement and the
performance of its obligations hereunder and compliance with the terms hereof do
not and will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation, bylaws or any provision
of any indenture, agreement or other instrument to which it or any of its
properties or assets is bound, and will not conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
16
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS.
This Agreement will be binding upon and will inure to the benefit of
the signatories hereto and their respective successors and permitted assigns
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
3.2 GOVERNING LAW.
This Agreement will be governed by and construed in accordance with
the internal Laws of the State of New York applicable to Contracts made and
wholly performed within such state, without regard to any applicable conflict of
laws principles.
3.3 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, all of
which will be considered one and the same agreement and will become effective
when counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that each party need not sign the same
counterpart.
3.4 NOTICES.
All notices required or permitted pursuant to this Agreement will be
in writing and will be deemed to be properly given when actually received by the
Person entitled to receive the notice at the address set forth on Exhibit B
hereto, or at such other address as a party may provide by notice to the other.
3.5 ATTORNEYS' FEES.
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
3.6 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company, the holders of at least a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any Registrable Securities
then outstanding, each future holder of all such Registrable Securities and the
Company.
17
3.7 OTHER AGREEMENTS.
Neither the Company nor any of its subsidiaries has entered, as of
the date hereof, nor shall the Company or any of its subsidiaries, on or after
the date of this Agreement, enter into any agreement with respect to its
securities, that would have the effect of impairing the rights granted to the
Investor in this Agreement or otherwise conflicts with the provisions hereof.
Notwithstanding the foregoing, the Holders acknowledge that the Company has
previously entered into the Registration Rights Agreement dated as of August 26,
2005 between the Company and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., the Registration Rights
Agreement dated as of July 15, 1998 by and among the Company and the parties
listed on the signature pages thereto and the Registration Rights Agreement
dated as of February 8, 2006 by and between the Company and Silver Point
Finance, LLC (as each is in effect on the date hereof, the "Prior Registration
Rights Agreements") and that nothing in this Agreement is intended to, or shall,
impair or conflict with the rights of the parties to the Prior Registration
Rights Agreements under the terms of the Prior Registration Rights Agreements.
3.8 SPECIFIC PERFORMANCE.
The parties hereby acknowledge and agree that the failure of any
party to perform its agreements and covenants hereunder, including its failure
to take all actions as are necessary on its part to the consummation of the
Transactions, will cause irreparable injury to the other parties for which
damages, even if available, will not be an adequate remedy. Accordingly, each
party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such party's obligations and to
the granting by any court of the remedy of specific performance of its
obligations hereunder.
3.9 SEVERABILITY.
The illegality or partial illegality of any of this Agreement, or any
provision hereof, will not affect the validity of the remainder of this
Agreement, or any provision hereof, and the illegality or partial illegality of
this Agreement will not affect the validity of this Agreement in any
jurisdiction in which such determination of illegality or partial illegality has
not been made, except in either case to the extent such illegality or partial
illegality causes this Agreement to no longer contain all of the material
provisions reasonably expected by the parties to be contained therein.
3.10 RULES OF CONSTRUCTION.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference will be to an Article or Section or
Exhibit or Schedule to this Agreement unless otherwise indicated. Whenever the
words "include," "includes" or "including" are used in this Agreement, they will
be deemed to be followed by the words "without limitation." Unless the context
otherwise requires, (i) "or" is disjunctive but not necessarily exclusive, (ii)
words in the singular include the plural and vice versa, and (iii) the use in
this Agreement of a pronoun in reference to a party hereto includes the
masculine, feminine or neuter, as the context may require. This Agreement will
not be interpreted or construed to require any Person to take any action, or
fail to take any action, that would violate any applicable Law.
18
(b) The parties have participated jointly in negotiating and drafting
this Agreement. In the event that an ambiguity or a question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties, and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
3.11 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, each of the Company and the Investor has caused
this Registration Rights Agreement to be signed by its officer thereunto duly
authorized, all as of the date first written above.
SALTON, INC.
By:
--------------------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore Manager,
L.L.C., its investment manager
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
EXHIBIT A
---------
SHARES OF COMMON STOCK
----------------------
SHARES OF
STOCKHOLDER COMMON STOCK
--------------------------------------------------------------------------------
Harbinger Capital Partners Master Fund I, Ltd. 701,600
EXHIBIT B
---------
ADDRESSES FOR NOTICE
--------------------
SALTON, INC.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
7800 Sears Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 6404
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: 312.876.7934
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
c/o ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, WEISS, RIFKIND, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 6064
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇