Exhibit 1
==============================================================================
REGISTRATION RIGHTS AGREEMENT
by and between
TEXTRON INC.,
TEXTRON HOLDCO INC.
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
------------------------------
Dated: December 20, 2001
------------------------------
==============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.1 Definitions.....................................................1
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights.................................................4
2.2 Registrable Securities..........................................5
2.3 Holders of Registrable Securities...............................5
ARTICLE III
DEMAND REGISTRATION
3.1 Request for Demand Registration.................................5
3.2 Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration.............................................7
3.3 Effective Demand Registration...................................7
3.4 Expenses........................................................8
3.5 Underwriting Procedures.........................................8
3.6 Selection of Underwriters.......................................9
3.7 Company Preemption Right; Existing Registration Rights
Agreement.....................................................9
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration............................10
4.2 Expenses.......................................................11
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders..............11
5.2 Restrictions on Public Sale by the Company.....................12
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company.....................................12
6.2 Seller Information.............................................16
6.3 Notice to Discontinue..........................................16
6.4 Registration Expenses..........................................17
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company.................................17
7.2 Indemnification by Investors...................................18
7.3 Conduct of Indemnification Proceedings.........................18
7.4 Contribution...................................................19
ARTICLE VIII
COVENANTS
8.1 Rule 144.......................................................20
8.2 ▇▇▇▇▇▇▇▇▇▇▇ and Blackstone Priority of Sale....................20
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc..............................21
9.2 No Inconsistent Agreements.....................................21
9.3 Remedies.......................................................22
9.4 Notices........................................................22
9.5 Successors and Assigns; Third Party Beneficiaries..............23
9.6 Amendments and Waivers.........................................24
9.7 Counterparts...................................................24
9.8 Headings.......................................................24
9.9 GOVERNING LAW..................................................24
9.10 Severability...................................................25
9.11 Rules of Construction..........................................25
9.12 Entire Agreement...............................................25
9.13 Further Assurances.............................................25
9.14 Other Agreements...............................................25
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated December 20, 2001,
by and between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, a Delaware corporation (the
"Company"), Textron Inc., a Delaware corporation ("Parent"), and Textron
Holdco Inc., a Rhode Island corporation ("Textron Holdco").
WHEREAS, pursuant to a Purchase Agreement, dated August
7, 2001, as amended and restated as of November 30, 2001 (the "Purchase
Agreement"), by and among the Company, Parent and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products
Co., Textron Holdco will receive an aggregate of 18,000,000 shares of
common stock, par value $0.01 per share (the "Common Stock"), of the
Company; and
WHEREAS, in order to induce Parent to cause Textron
Holdco to acquire, and Textron Holdco to acquire, shares of Common Stock as
provided in the Purchase Agreement, the Company has agreed to grant
registration rights with respect to the Registrable Securities (as
hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements set forth herein and for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the
meanings indicated:
"Affiliate" has the meaning specified in the Purchase
Agreement.
"Agreement" means this Agreement as the same may be
amended, supplemented or modified in accordance with the terms hereof.
"Approved Underwriter" has the meaning set forth in
Section 3.6.
"▇▇▇▇▇▇ Investors" has the meaning set forth in the
Second Rights Agreement as such term is defined therein on the date of the
Purchase Agreement.
"Blackstone Holders" has the meaning set forth in the
Existing Registration Rights Agreement as such term is defined therein on
the date of the Purchase Agreement.
"Board of Directors" means the Board of Directors of the
Company.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in the State of New York are
authorized or required by law or executive order to close.
"Commission" means the Securities and Exchange Commission
or any similar agency then having jurisdiction to enforce the Securities
Act.
"Common Stock" has the meaning set forth in the preamble
to this Agreement or any other capital stock of the Company into which such
stock is reclassified or reconstituted and any other common stock of the
Company.
"Company" has the meaning set forth in the preamble to
this Agreement and shall mean any successor thereto that has issued
securities in exchange for any Common Stock in connection with any merger
or consolidation in which securities of the Company is converted or
exchanged, in whole or in part, into such securities.
"Company Offering" has the meaning set forth in Section
4.1.
"Company Underwriter" has the meaning set forth in
Section 4.1.
"day" means any calendar day.
"Demand Registration" has the meaning set forth in
Section 3.1.
"Designated Holder" means Parent and Textron Holdco and
any transferee thereof to whom Registrable Securities have been transferred
in accordance with Section 9.5, other than a transferee to whom Registrable
Securities have been transferred pursuant to a Registration Statement under
the Securities Act or Rule 144 under the Securities Act (or any successor
rule thereto).
"Exchange Act" means the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder.
"Existing Registration Rights Agreement" means the
Registration Rights Agreement dated February 23, 2001 among Blackstone
Capital Company II, L.L.C., Heartland Industrial Partners, L.P. and the
other named Heartland Entities, ▇▇▇▇▇▇▇▇▇▇▇/C&A Holdings, L.L.C. and the
Company, as amended, modified or supplemented in accordance with its terms
to the extent any such amendment, modification or supplement does not
affect the rights or priorities of Parent hereunder in an adverse manner.
"Holders' Counsel" has the meaning set forth in Section
6.1(a).
"Incidental Registration" has the meaning set forth in
Section 4.1.
"Indemnified Party" has the meaning set forth in Section
7.3.
"Indemnifying Party" has the meaning set forth in Section
7.3.
"Initiating Holders" has the meaning set forth in Section
3.1.
"Inspector" has the meaning set forth in Section 6.1(g).
"Investors" means, collectively, Parent and Textron
Holdco and any transferee thereof to whom Registrable Securities are
transferred in accordance with Section 9.5 of this Agreement.
"▇▇▇▇ Investors" has the meaning set forth in the Second
Rights Agreement as such term is defined therein on the date of the
Purchase Agreement (other than immaterial changes to related persons, such
as trusts and family members, made prior to the date hereof, in the
"Permitted Transferee" definition).
"Liability" has the meaning set forth in Section 7.1.
"Majority of Designated Holders" means the Designated
Holders holding a majority of the Registrable Securities held by all
Designated Holders.
"Majority of Investors" means Investors holding a
majority of all Registrable Securities held by all Investors.
"NASD" means the National Association of Securities
Dealers, Inc.
"New Private Equity Holders" means those Persons
purchasing Common Stock to finance, in part, the transactions contemplated
by the Purchase Agreement.
"Non-Designated Stockholder" has the meaning set forth in
Section 4.1.
"Non-Designated Stockholder Offering" has the meaning set
forth in Section 4.1.
"Parent" has the meaning set forth in the preamble to
this Agreement.
"Person" means any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and
shall include any successor (by merger or otherwise) of such entity.
"Purchase Agreement" has the meaning set forth in the
preamble to this Agreement.
"Records" has the meaning set forth in Section 6.1(g).
"Registrable Securities" means, subject to Section 2.2,
each of the following: (a) any and all shares of Common Stock acquired by
an Investor pursuant to the Purchase Agreement and (b) any securities of
the Company issued or issuable to any Investor with respect to the
Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and any securities
issuable upon conversion, exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in
Section 6.4.
"Registration Statement" means a registration statement
filed pursuant to the Securities Act.
"Second Rights Agreement" means the Registration Rights
Agreement dated July 3, 2001 among the ▇▇▇▇▇▇ Investors, the ▇▇▇▇ Investors
and the Company, as amended, modified or supplemented in accordance with
its terms to the extent any such amendment, modification or supplement does
not affect the rights or priorities of Parent hereunder in an adverse
manner.
"Securities Act" means the United States Securities Act
of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Shares" means shares of Common Stock.
"Valid Business Reason" has the meaning set forth in
Section 3.1.
"▇▇▇▇▇▇▇▇▇▇▇ Holders" has the meaning set forth in the
Existing Registration Rights Agreement as such term is defined therein on
the date of the Purchase Agreement.
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights. The Company hereby grants
registration rights to the Designated Holders upon the terms and conditions
set forth in this Agreement.
2.2 Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities,
when (i) a Registration Statement covering such securities has been
declared effective under the Securities Act by the Commission and such
securities have been disposed of pursuant to such effective Registration
Statement or (ii) with respect to an Investor, the entire amount of such
Investor's Registrable Securities may be sold in a single sale, in the
opinion of counsel reasonably satisfactory to the Company and such
Investor, each in their reasonable judgment, without any limitation as to
volume pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act. Notwithstanding the foregoing clause (ii), to the
extent Parent or any of its Affiliates becomes an "affiliate" (as such term
is used under Rule 144) of the Company by reason of the exercise of
remedies due to the occurrence of a "Voting Rights Triggering Event" (as
defined under the Certificate of Designation (as defined in the Purchase
Agreement and amended from time to time) relating to the Redeemable
Preferred Stock), any securities continuously and solely beneficially owned
by Parent (and/or its Affiliates) since the closing date of the acquisition
under the Purchase Agreement that would not be Registrable Securities by
reason of the preceding clause (ii) will regain their status as Registrable
Securities until the provisions of such clause (ii) would again apply (if
at all).
2.3 Holders of Registrable Securities. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of
record Registrable Securities, or holds an option to purchase, or a
security convertible into or exercisable or exchangeable for, Registrable
Securities whether or not such acquisition or conversion has actually been
effected. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice
or election received from the registered owner of such Registrable
Securities. Registrable Securities issuable upon exercise of an option or
upon conversion of another security shall be deemed outstanding for the
purposes of this Agreement.
ARTICLE III
DEMAND REGISTRATION
3.1 Request for Demand Registration. (a) A Majority of
Designated Holders (the "Initiating Holders") may each make a written
request to the Company to register, and the Company shall register, under
the Securities Act (other than pursuant to a Registration Statement on Form
S-4 or S-8 or any successor thereto) (a "Demand Registration"), the number
of Registrable Securities stated in such request; provided, however, that
(1) the Company shall not be obligated to effect more than two (2) such
Demand Registrations and (2) the Company shall not be obligated to proceed
with a Demand Registration at any time prior to October 1, 2002. For
purposes of the preceding sentence, two or more Registration Statements
filed in response to one demand shall be counted as one Demand
Registration; provided, however, that, except as otherwise provided herein,
any such Registration Statement filed at the request of an Initiating
Holder and subsequently withdrawn at the request of that Initiating Holder
shall be counted as a Demand Registration with respect to such Initiating
Holder unless the withdrawing Initiating Holder pays the expenses
associated with such Registration Statement, in which case such Demand
Registration shall not be so counted.
(b) Notwithstanding anything to the contrary contained
herein, no Demand Registration need be effected by the Company within (1)
six (6) months after the effectiveness of any Registration Statement
pursuant to a Demand Registration hereunder or (2) within (x) six (6)
months after the effectiveness of any Registration Statement pursuant to a
"demand registration" under the Existing Registration Rights Agreement or
the Second Rights Agreement, in each case to the extent such demand
registrations are provided for on the date of the Purchase Agreement or
under any other existing or future Common Stock registration rights
agreements granted in favor of the New Private Equity Holders or any
Registration Statement for any Company Offering, if such demand
registration becomes effective on or prior to the second anniversary of the
date hereof, or (y) 90 days after the effectiveness of any such
Registration Statement referred to in the preceding clause (x) , if such
demand registration becomes effective after the second anniversary of the
date hereof. The Company shall not be obliged to include more than (1) 10
million shares in a Registration Statement declared effective on or prior
to the second anniversary of the date hereof or (2) 20 million shares in
the case of a Registration Statement declared effective after the second
anniversary of the date hereof but on or prior to the fourth anniversary of
the date hereof (in each case, as such numbers are equitably adjusted for
stock splits, stock combinations and similar events occurring after the
date hereof) of Common Stock in any Registration Statement pursuant to a
Demand Registration, inclusive of any Shares to be included pursuant to any
incidental or piggy-back rights under this Agreement, the Existing
Registration Rights Agreement, the Second Rights Agreement or any other
existing or future Common Stock registration rights agreements granted in
favor of the New Private Equity Holders. If the Board of Directors, in its
good faith judgment, determines that any registration of Registrable
Securities should not be made or continued because it would materially
interfere with any financing, acquisition, corporate reorganization or
merger or other transaction involving the Company or any of its
Subsidiaries which is material to the Company (a "Valid Business Reason"),
the Company may (x) postpone filing a Registration Statement relating to a
Demand Registration until such Valid Business Reason no longer exists, but
in no event for more than 105 days, and (y) in case a Registration
Statement has been filed relating to a Demand Registration, if the Valid
Business Reason has not resulted from actions taken by the Company, the
Company, upon the approval of a majority of the Board of Directors, may
cause such Registration Statement to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such Registration
Statement. For the purposes of certainty, the parties acknowledge that in
the event a Registration Statement is so withdrawn, it shall not count as
having been a Demand Registration for purposes of the limit on the number
of Demand Registrations set forth above. The Company shall give written
notice of its determination to postpone or withdraw a Registration
Statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after
the occurrence thereof. Notwithstanding anything to the contrary contained
herein, the Company may not postpone or withdraw a filing under this
Section 3.1 for more than 105 days once in any twelve (12) month period.
Each request for a Demand Registration by the Initiating Holders shall
state the number of the Registrable Securities proposed to be sold and the
intended method of disposition thereof.
3.2 Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration. Each of the Designated Holders (other than Initiating
Holders which have requested a registration under Section 3.1) may offer
its Registrable Securities in connection with any Demand Registration
pursuant to this Section 3.2. Within five (5) Business Days after the
receipt of a request for a Demand Registration from an Initiating Holder,
the Company shall (i) give written notice thereof to all of the Designated
Holders (other than Initiating Holders which have requested a registration
under Section 3.1) and (ii) subject to Section 3.5, include in such
registration all of the Registrable Securities held by such Designated
Holders from whom the Company has received a written request for inclusion
therein within ten (10) days of the receipt by such Designated Holders of
such written notice referred to in clause (i) above. Each such request by
such Designated Holders shall specify the number of Registrable Securities
proposed to be registered. The failure of any such Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be
deemed to be a waiver of such Designated Holder's rights under this Article
III with respect to such Demand Registration. Any such Designated Holder
may waive its rights under this Article III prior to the expiration of such
10-day period by giving written notice to the Company, with a copy to the
Initiating Holders. If a Designated Holder sends the Company a written
request for inclusion of part or all of such Designated Holder's
Registrable Securities in a Demand Registration, such Designated Holder
shall not be entitled to withdraw or revoke such request without the prior
written consent of the Company in its sole discretion unless (A) in the
case of the Initiating Holders only, the Company will not include in a
Registration Statement filed in accordance with these provisions 75% or
more of the Registrable Securities the Initiating Holders included in its
request for a Demand Registration or (B) as a result of facts or
circumstances arising after the date on which such request was made
relating to the Company or any of its Subsidiaries or to market conditions,
such Designated Holder reasonably determines that participation in such
registration would have a material adverse effect on such Designated
Holder.
3.3 Effective Demand Registration. Subject to Section
3.1, the Company shall use its reasonable best efforts to cause any such
Demand Registration to become effective not later than 60 days after it
receives a request under Section 3.1. A registration shall not constitute a
Demand Registration until it has become effective and remains continuously
effective for the shorter of (i) 60 days and (ii) the period during which
all Registrable Securities registered in the Demand Registration are sold;
provided, however, that a registration shall not constitute a Demand
Registration if (v) the Company has breached any of its material
obligations under this Agreement in any material respect, (w) after such
Demand Registration has become effective, such registration or the related
offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason not
attributable to the Initiating Holders and such interference is not
thereafter eliminated, (x) the conditions specified in the underwriting
agreement, if any, entered into in connection with such Demand Registration
are not satisfied or waived for any reason other than a breach by the
Initiating Holder or any other Designated Holder or (y) the Company
exercises its rights of postponement, termination or withdrawal under
Section 3.1 or (z) as provided in the last sentence of Section 3.5.
3.4 Expenses. The Company shall pay all Registration
Expenses in connection with the registration of Registrable Securities
under this Article III, whether or not the Registration Statement therefor
becomes effective, except as otherwise provided herein.
3.5 Underwriting Procedures. If the Company or the
Initiating Holders holding a majority of the Registrable Securities held by
all of the Initiating Holders so elect, the Company shall use its
reasonable best efforts to cause such Demand Registration to be in the form
of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 3.6. In connection with any Demand
Registration under this Article III involving an underwritten offering,
none of the Registrable Securities held by any Designated Holder making a
request for inclusion of such Registrable Securities pursuant to Section
3.2 hereof shall be included in such underwritten offering unless such
holder accepts the terms of the offering as agreed upon by the Company, the
Initiating Holders and the Approved Underwriter (including execution of an
escrow agreement and/or a power of attorney with respect to the disposition
of the Registrable Securities), and then only in such quantity as will not,
in the opinion of the Approved Underwriter, jeopardize the success of such
offering by the Initiating Holders. If the Approved Underwriter advises the
Company that the aggregate amount of such Registrable Securities requested
to be included in such offering is sufficiently large to have a material
adverse effect on the success of such offering, then the Company shall
include in such registration only the aggregate amount of Registrable
Securities that the Approved Underwriter believes may be sold without any
such material adverse effect and shall reduce the amount of Registrable
Securities to be included in such registration to the extent of the amount
of Registrable Securities that the Approved Underwriter believes may be
sold without causing such material adverse effect. In such case Registrable
Securities shall be included in the following order of priority: (1) first,
any securities to be sold for the account of the Blackstone Holders and
▇▇▇▇▇▇▇▇▇▇▇ Holders, as required by the Existing Registration Rights
Agreement (as such requirements are in effect on the date of the Purchase
Agreement); (2) second, any Registrable Securities and other shares of
Common Stock to be sold for the account of the Initiating Holders and any
other Designated Holders (if any), pro rata based upon the number of
Registrable Securities and other than shares of Common Stock then owned by
them; and (3) third, any securities to be sold by the Company or any other
Person exercising incidental or piggy-back registration rights. If, by
reason of the application of clause (1) or by reason of the share
limitation set forth in Section 3.1(b) or if less than 75% of the
Registrable Securities which the Initiating Holders of the subject Demand
Registration requested be registered are included in such registration, the
registration shall not count as one of the two Demand Registrations to
which such Initiating Holders are entitled.
3.6 Selection of Underwriters. If any Demand Registration
of Registrable Securities is in the form of an underwritten offering, the
Company shall select and obtain an investment banking firm of national
reputation to act as the managing underwriter of the offering (the
"Approved Underwriter"); provided that (I) the Approved Underwriter shall,
in any case, also be approved by a Majority of Initiating Holders, such
approval not to be unreasonably withheld, and (ii) if only securities of
Investors are included in the registration, the Initiating Holders shall
have the right to select the Approved Underwriter with the Company having
the right to approve of such selection, such approval not to be
unreasonably withheld.
3.7 Company Preemption Right; Existing Registration
Rights Agreement. Notwithstanding anything herein to the contrary, to the
extent that a Valid Business Reason exists for deferring, postponing or
suspending a Demand Registration, the Company shall be entitled to elect to
pursue a Company Offering (as hereinafter defined) in furtherance of such
Valid Business Reason and to thereby preempt the Demand Registration and
defer, postpone or suspend the Demand Registration, in which case the
applicable demand shall not count as a Demand Registration. In the event of
a conflict between the provisions of this Agreement and the provisions of
the Existing Registration Rights Agreement that provide for priority and
cut-back in a registered offering of securities (as such provisions are in
effect on the date of the Purchase Agreement), the provisions of the
Existing Registration Rights Agreement (as such provisions are in effect on
the date of the Purchase Agreement) will govern.
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration. If the Company
proposes to file a Registration Statement under the Securities Act with
respect to an offering of Common Stock by the Company for its own account
(other than a Registration Statement on Form S-4 or S-8 or any successor
thereto or in connection with an offering made exclusively to stockholders
of the Company generally) (a "Company Offering") or for the account of any
stockholder of the Company other than one in which all Investors are
participating under Article III (each such Stockholder, a "Non-Designated
Stockholder" and such offering a "Non-Designated Stockholder Offering"),
then the Company shall give written notice of such proposed filing to each
of the Investors at least ten (10) Business Days before the anticipated
filing date, and such notice shall describe the proposed registration and
distribution and offer such Investors the opportunity to register the
number of Registrable Securities held by such Investor as each such
Investors may request (an "Incidental Registration"). The Company shall use
its reasonable best efforts to cause the managing underwriter or
underwriters in the case of a proposed underwritten offering (the "Company
Underwriter") to permit each of the Investors who have requested in writing
to participate in the Incidental Registration to include its Registrable
Securities in such offering on the same terms and conditions as the
securities of the Company or the securities of such Non-Designated
Stockholders, as the case may be, included therein. In connection with any
Incidental Registration under this Section 4.1 involving an underwritten
offering, the Company shall not be required to include any Registrable
Securities in such underwritten offering unless the Investors thereof
accept the terms of the underwritten offering as agreed upon between the
Company, such Non-Designated Stockholders, if any, and the Company
Underwriter (including execution of an escrow agreement and/or a power of
attorney with respect to the disposition of the Registrable Securities),
and then, subject to this Section 4.1, only in such quantity as the Company
Underwriter believes will not jeopardize the success of such offering. If
the Company Underwriter determines that the registration of all or part of
the Registrable Securities which the Investors have requested to be
included would materially adversely affect the success of such offering,
then the Company shall be required to include in such Incidental
Registration the Registrable Securities only to the extent of the amount of
Registrable Securities that the Company Underwriter believes may be sold
without causing such material adverse effect, (i) in the case of a Company
Offering: first, all of the securities to be offered for the account of the
Company; second, any securities to be offered for the account of Blackstone
Holders and ▇▇▇▇▇▇▇▇▇▇▇ Holders as required by the Existing Registration
Rights Agreement (as such requirements are in effect on the date of the
Purchase Agreement), pro rata based on the number of securities then owned
by each; third, any securities to be offered for the account of the
Investors or the ▇▇▇▇▇▇ Investors or the ▇▇▇▇ Investors, pro rata based on
the number of securities then owned by each; and fourth, any securities to
be offered for the account of any other Person; and (ii) in the case of a
Non-Designated Stockholder Offering: first, the securities to be offered
for the account of Blackstone Holders and ▇▇▇▇▇▇▇▇▇▇▇ Holders pro rata
based on the number of Registrable Securities owned by each as required by
Section 4.1 of the Existing Registration Rights Agreement (as in effect on
the date of the Purchase Agreement); second, all of the securities to be
offered by such Persons as are exercising demand registration rights (other
than Heartland Industrial Partners, L.P., the New Equity Holders and their
respective Affiliates) and all of the securities of the Investors in
respect of their rights, if any, as "Priority Holders" under the Second
Rights Agreement pro rata based on the number of securities owned by each
of them; third, all of the securities to be offered for the account of the
Company; fourth, any Registrable Securities and other securities requested
to be included in such offering by the Investors or the ▇▇▇▇▇▇ Investors or
the ▇▇▇▇ Investors pro rata based on the number of Registrable Securities
and other securities then owned by each of them; and fifth, any shares of
Common Stock owned by Heartland Industrial Partners, L.P. and its
Affiliates and the New Private Equity Holders pro rata based on the number
of shares of Common Stock then owned by each. Nothing in this Section 4.1
shall create any liability on the part of the Company or any other Person
to the Investors if the Company, for any reason, decides not to file a
Registration Statement proposed to be filed pursuant to this Section 4.1 or
to withdraw such Registration Statement subsequent to its filing,
regardless of any action whatsoever that an Investor may have taken,
whether as a result of the issuance by the Company of any notice under this
Section 4.1 or otherwise.
4.2 Expenses. The Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this
Article IV, whether or not such Incidental Registration becomes effective.
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders. To
the extent requested (A) by the Company, in the case of a non-underwritten
public offering and (B) by the Approved Underwriter or the Company
Underwriter, as the case may be, in the case of an underwritten public
offering, each Investor agrees (x) not to make any request for a Demand
Registration under this Agreement for the period referred to in Section
3.1(b) and (y) not to effect any sale or distribution of any Common Stock
or of any securities convertible into or exchangeable or exercisable for
Common Stock, including a sale pursuant to Rule 144 under the Securities
Act, or offer to sell, contract to sell (including without limitation any
short sale), grant any option to purchase or enter into any hedging or
similar transaction with the same economic effect as a sale of Common Stock
during the 120-day or, following the second anniversary of the date hereof,
90 day period (or such shorter period, if any, agreed to by the requesting
party) beginning on the effective date of any Registration Statement for
such underwritten public offering (except as part of such registration);
provided the provisions of clause (y) shall terminate with respect to any
Registration Statement in which the Investor is not a selling stockholder
to the extent the Investors own less than 5% of the outstanding shares of
Common Stock of the Company. The Investors shall be relieved from any
obligation provided for in this Section to the extent that the Company or
any holder of 5% or more of the outstanding shares of Common Stock of the
Company (or any person within the common control of any such person or a
family member of any such person) subject to a registration rights
agreement with the Company shall be released from any obligation similar to
the foregoing.
5.2 Restrictions on Public Sale by the Company. The
Company agrees (a) not to effect any sale or distribution of any Common
Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock (except pursuant to registrations on Form S-4 or S-8 or
any successor thereto), during the period beginning on the effective date
of any Registration Statement in which the Investors are participating and
ending on (x) the date on which all Registrable Securities registered on
such Registration Statement are sold (except as part of such registration)
or (y) in the case of an underwritten offering, on the 90th day (or such
shorter period as may be agreed to by the Investors or by the managing
underwriter) after the effective date of any such Registration Statement
relating to a Demand Registration; provided that the Company shall be
relieved of any such obligation to the extent the Investors or any other
holder of 5% or more of the outstanding shares of Common Stock is relieved
of any such obligation and (b) to use commercially reasonable efforts to
cause its directors, executive officers and each beneficial owner of 5% or
more of the outstanding shares of Common Stock of the Company (other than
the Blackstone Investors or the ▇▇▇▇▇▇▇▇▇▇▇ Investors) to agree not to
effect any public sale or distribution of any Common Stock (or securities
convertible or exchangeable therefor) of the Company owned or controlled by
them or their respective family members at a time when the Company is
restricted under the preceding clause (a), except under such Registration
Statement.
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Article III or
Article IV of this Agreement, the Company shall use its reasonable best
efforts to effect the registration and sale of such Registrable Securities
in accordance with the intended method of distribution thereof as quickly
as practicable, and in connection with any such request, the Company shall,
as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which
form shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution
thereof, and use its reasonable best efforts to cause such
Registration Statement to become effective; provided, however,
that (x) before filing a Registration Statement or prospectus or
any amendments or supplements thereto, the Company shall provide
counsel selected by the Investors holding a majority of the
Registrable Securities being registered in such registration
("Holders' Counsel") and any other Inspector with a reasonably
adequate and appropriate opportunity to review and comment on such
Registration Statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the
Commission, subject to such documents being under the Company's
control, and (y) the Company shall notify the Holders' Counsel and
each seller of Registrable Securities of any stop order issued or
threatened by the Commission and take all action required to
prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of (x) 90 days and
(y) such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold,
and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement;
(c) furnish to each seller of Registrable Securities,
prior to filing a Registration Statement, at least one copy of
such Registration Statement as is proposed to be filed, and
thereafter such number of copies of such Registration Statement,
each amendment and supplement thereto (in each case including all
exhibits thereto), and the prospectus included in such
Registration Statement (including each preliminary prospectus) and
any prospectus filed under Rule 424 under the Securities Act as
each such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) register or qualify such Registrable Securities under
such other securities or "blue sky" laws of such jurisdictions as
any seller of Registrable Securities may reasonably request, and
to continue such qualification in effect in such jurisdiction for
as long as required pursuant to the laws of such jurisdiction, or
for as long as any such seller reasonably requests or until all of
such Registrable Securities are sold, whichever is shortest, and
do any and all other acts and things which may be reasonably
necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, however, that the Company shall
not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this Section 6.1(d), (y) subject itself to taxation in any
such jurisdiction or (z) consent to general service of process in
any such jurisdiction;
(e) notify each seller of Registrable Securities at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus
included in such Registration Statement contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, and the Company shall promptly prepare a
supplement or amendment to such prospectus and furnish to each
seller of Registrable Securities a reasonable number of copies of
such supplement to or an amendment of such prospectus as may be
necessary so that, after delivery to the purchasers of such
Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(f) enter into and perform customary agreements
(including an underwriting agreement in customary form with the
Approved Underwriter or Company Underwriter, if any, selected as
provided in Article III or Article IV, as the case may be) and
take such other actions as are prudent and reasonably required in
order to expedite or facilitate the disposition of such
Registrable Securities;
(g) make available at reasonable times for inspection by
any seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities
pursuant to a Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or
any managing underwriter (each, an "Inspector" and collectively,
the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries'
officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably
requested by any such Inspector in connection with such
Registration Statement. Records that the Company determines, in
good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the
Inspectors (and the Inspectors shall confirm their agreement in
writing in advance to the Company if the Company shall so request)
unless (x) the disclosure of such Records is necessary, in the
Company's judgment, to avoid or correct a misstatement or omission
in the Registration Statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction after exhaustion of all appeals therefrom
or (z) the information in such Records was known to the Inspectors
on a non-confidential basis prior to its disclosure by the Company
or has been made generally available to the public. Each seller of
Registrable Securities agrees that it shall, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(h) if such sale is pursuant to an underwritten offering,
cause to be delivered "cold comfort" letters dated the effective
date of the Registration Statement and the date of the closing
under the underwriting agreement from the Company's independent
public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders'
Counsel or the managing underwriter reasonably requests;
(i) if such sale is pursuant to an underwritten offering,
cause to be furnished, at the request of any seller of Registrable
Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date
the Registration Statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing
the Company for the purposes of such registration, addressed to
the underwriters, if any, and to the seller making such request,
covering such legal matters with respect to the registration in
respect of which such opinion is being given as the underwriters,
if any, and such seller may reasonably request and are customarily
included in such opinions;
(j) comply with all applicable rules and regulations of
the Commission, and make available to its security holders, as
soon as reasonably practicable but no later than fifteen (15)
months after the effective date of the Registration Statement, an
earnings statement covering a period of twelve (12) months
beginning after the effective date of the Registration Statement,
in a manner which satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing
requirements are satisfied;
(l) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Article III or
Article IV hereunder;
(m) cooperate with each seller of Registrable Securities
and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection
with any filings required to be made with the NASD;
(n) make executive officers available to participate in
customary road shows and other informational meetings as
reasonably requested by any Approved Underwriter or Company
Underwriter; and
(o) take all other steps reasonably necessary to effect
the registration of the Registrable Securities contemplated
hereby.
6.2 Seller Information. (a) It shall be a condition
precedent to the obligation of the Company to include any Registrable
Securities of any Investor in a Registration Statement pursuant to this
Agreement that the Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, any other
securities of the Company held by it, and the intended method of
disposition of such Registrable Securities as shall be required to effect
the registration of the Registrable Securities held by such Investor,
including, without limitation, all information required to be disclosed in
order to make the information previously furnished to the Company by such
Investor not materially misleading or necessary to cause such Registration
Statement not to omit a material fact with respect to such Investor
necessary in order to make the statements therein not misleading. Any such
Information shall be provided to the Company within any reasonable time
period requested by the Company.
(b) Each Investor shall notify the Company, at any time
when a prospectus is required to be delivered under applicable law, of the
happening of any event as a result of which the prospectus included in the
applicable Registration Statement, as then in effect, in each case only
with respect to information provided by such Holder, 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. Such Investor shall
immediately upon the happening of any such event cease using such
prospectus.
6.3 Notice to Discontinue. Each Investor agrees that,
upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 6.1(e) or 6.2(b), such Investor shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Investor's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 6.1(e) and, if so directed by the Company, such
Investor shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Investor's
possession, of the prospectus covering such Registrable Securities which is
current at the time of receipt of such notice. If the Company shall give
any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
6.1(b)) by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6.1(e) to and including
the date when sellers of such Registrable Securities under such
Registration Statement shall have received the copies of the supplemented
or amended prospectus contemplated by and meeting the requirements of
Section 6.1(e).
6.4 Registration Expenses. The Company shall pay all
expenses arising from or incident to its performance of, or compliance
with, this Agreement, including, without limitation, (i) Commission, stock
exchange and NASD registration and filing fees, (ii) all fees and expenses
incurred in complying with securities or "blue sky" laws (including
reasonable fees, charges and disbursements of counsel to any underwriter
incurred in connection with "blue sky" qualifications of the Registrable
Securities as may be set forth in any underwriting agreement), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting fees, charges and expenses incurred by
the Company (including, without limitation, any expenses arising from any
"cold comfort" letters or any special audits incident to or required by any
registration or qualification), (v) the reasonable fees, charges and
disbursements of Holders' Counsel not to exceed $35,000 in respect of any
one registration and (vi) any liability insurance or other premiums for
insurance obtained in connection with any Demand Registration or piggy-back
registration thereon or Incidental Registration pursuant to the terms of
this Agreement, regardless of whether such Registration Statement is
declared effective. All of the expenses described in the preceding sentence
of this Section 6.4 are referred to herein as "Registration Expenses."
Investors holding Registrable Securities sold pursuant to a Registration
Statement shall bear the expense of any broker's commission, underwriter's
discount or commission or transfer taxes relating to registration and sale
of such Investor's Registrable Securities and, subject to clause (v) above,
shall bear the fees and expenses of their own counsel.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Investor, its partners, directors,
officers, Affiliates and each Person who controls (within the meaning of
Section 15 of the Securities Act) such Investor from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) (each, a "Liability" and collectively,
"Liabilities"), arising out of or based upon (x) any untrue, or allegedly
untrue, statement of a material fact contained in any Registration
Statement (as amended) or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or (y) any
untrue, or allegedly untrue, statement of a material fact contained in any
prospectus or preliminary prospectus (as amended or supplemented) or
arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances under
which such statements were made or (z) arising out of a violation or
alleged violation by the Company of the Securities Act, the Exchange Act,
any federal or state securities law or any rule or regulation promulgated
under any such legislation, except insofar as such Liability (i) arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission contained in such Registration Statement,
preliminary prospectus or final prospectus in reliance and in conformity
with information concerning such Investor furnished in writing to the
Company by such Investor expressly for use therein or (ii) is caused by any
failure by the Investor to deliver a prospectus or preliminary prospectus
(or amendment or supplement thereto) as and when required under the
Securities Act after copies of such prospectus have been timely furnished
by the Company to the Investors in accordance with the provisions hereof.
The Company shall also provide customary indemnities to any underwriters of
the Registrable Securities, their officers, directors and employees and
each Person who controls such underwriters (within the meaning of Section
15 of the Securities Act) to the same extent as provided above with respect
to the indemnification of the Investors.
7.2 Indemnification by Investors. Each Investor agrees to
indemnify and hold harmless the Company, the other Investors, any
underwriter retained by the Company, each of their respective officers,
directors and Affiliates and each Person who controls the Company, the
other Investors or such underwriter (within the meaning of Section 15 of
the Securities Act) to the same extent as the foregoing indemnity from the
Company to the Investors, but only if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity
with information with respect to such Investor furnished in writing to the
Company by such Investor expressly for use in such Registration Statement
or prospectus to the extent that the Liability results from the statement,
alleged statement, omission or alleged omission so made in reliance upon
and in conformity with such information; provided, however, that the total
amount to be indemnified by such Investor pursuant to Section 6.2 shall be
limited to the net proceeds received by such Investor in the offering to
which the Registration Statement or prospectus relates.
7.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to
give prompt written notice to the indemnifying party (the "Indemnifying
Party") after the receipt by the Indemnified Party of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing to the Indemnified Party for which the Indemnified
Party intends to claim indemnification or contribution pursuant to this
Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any
Liability that it may have to the Indemnified Party hereunder (except to
the extent that the Indemnifying Party is materially prejudiced or
otherwise forfeits substantive rights or defenses by reason of such
failure). If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be
entitled to participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably
satisfactory to such Indemnified Party. The Indemnified Party shall have
the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be
paid by the Indemnified Party unless (i) the Indemnifying Party agrees to
pay the same, (ii) the Indemnifying Party fails to assume the defense of
such action with counsel reasonably satisfactory to the Indemnified Party
or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and
such parties have been advised by such counsel that either (x)
representation of such Indemnified Party and the Indemnifying Party by the
same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses
available to the Indemnified Party which are different from or additional
to those available to the Indemnifying Party. In any of such cases, the
Indemnifying Party shall not have the right to assume the defense of such
action on behalf of such Indemnified Party, it being understood, however,
that the Indemnifying Party shall not be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemnified Parties. No Indemnifying Party shall be liable
for any settlement entered into without its written consent, which consent
shall not be unreasonably withheld. No Indemnifying Party shall, without
the consent of such Indemnified Party, which consent shall not be
unreasonably withheld, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is a party and
indemnity has been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from
all Liability for claims that are the subject matter of such proceeding.
7.4 Contribution. If the indemnification provided for in
this Article VII from the Indemnifying Party is unavailable to an
Indemnified Party hereunder in respect of any Liabilities referred to
herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such
Liabilities, as well as any other relevant equitable considerations. The
relative faults of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the Liabilities referred to above
shall be deemed to include, subject to the limitations set forth in
Sections 7.1, 7.2 and 7.3, any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or
proceeding; provided that the total amount to be contributed by such
Investor shall be limited to the net proceeds received by such Investor in
the offering.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE VIII
COVENANTS
8.1 Rule 144. The Company covenants that it shall (a)
file any reports required to be filed by it under the Exchange Act and (b)
take such further action as each Investor of Registrable Securities may
reasonably request (including providing any information necessary to comply
with Rule 144 under the Securities Act), all to the extent required from
time to time to enable such Investor to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule
may be amended from time to time, or Regulation S under the Securities Act
or (ii) any similar rules or regulations hereafter adopted by the
Commission. The Company shall, upon the request of any Investor holding
Registrable Securities, deliver to such Investor a written statement as to
whether it has complied with such requirements.
8.2 ▇▇▇▇▇▇▇▇▇▇▇ and Blackstone Priority of Sale.
Notwithstanding anything to the contrary set forth in this Agreement, in
the event of any registered public offering of Common Stock in which
Blackstone Holders and/or ▇▇▇▇▇▇▇▇▇▇▇ Holders, on the one hand, and any
other stockholder of the Company (including, without limitation, any
Investor), on the other hand, desire or intend to sell Common Stock,
Blackstone Holders and ▇▇▇▇▇▇▇▇▇▇▇ Holders, pro rata based on the number of
shares of Common Stock then owned by each, shall have an absolute right to
sell prior to any other such holder in such offering.
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc. The provisions of
this Agreement shall apply to the full extent set forth herein with respect
to (i) the shares of Common Stock, (ii) any and all shares of common stock
of the Company into which the shares of Common Stock are converted,
exchanged or substituted in any recapitalization or other capital
reorganization by the Company and (iii) any and all equity securities of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect
of, in conversion of, in exchange for or in substitution of, the shares of
Common Stock and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof. The Company shall cause any successor or
assign (whether by merger, consolidation, sale of assets or otherwise) to
assume this Agreement with the Investors on terms substantially the same as
this Agreement as a condition of any such transaction.
9.2 No Inconsistent Agreements. (a) The Company
represents and warrants that it has not granted to any Person, other than
pursuant to the Existing Registration Rights Agreement and the Second
Rights Agreement, the right to request or require the Company to register
any securities issued by the Company, other than the rights granted to the
Investors herein.
(b) The Company represents and warrants that the rights
granted to Persons pursuant to the Existing Registration Rights Agreement
and the Second Rights Agreement are not inconsistent with the rights
granted to Persons in this Agreement in any material respect. Further, it
is the Company's interpretation that in the event of an exercise by more
than one party of a right to a "Demand Registration" under Section 3.1 of
any of the Existing Registration Rights Agreement, the Second Rights
Agreement or this Agreement, only the party or group that is first in time
to exercise such demand will be considered by the Company to have made a
"demand registration" under the applicable agreement and all others will be
considered by the Company to be exercising incidental or piggy-back
registration rights (except as contemplated by Section 3.2 of any such
agreement as such section is in effect on the date of the Purchase
Agreement). The Company also agrees that its right of priority as between
itself and the applicable Investors are governed by Sections 3.5 and 4.1 of
this Agreement and not by those sections of the Existing Registration
Rights Agreement or the Second Rights Agreement. The Company shall not
enter into any agreement or modification, amendment or supplement to any
existing agreement that is inconsistent with the rights granted in this
Agreement or grant any additional rights to any Person with respect to
securities of the Company inconsistent with the rights granted in this
Agreement in any material respect. True and correct copies of the Existing
Registration Rights Agreement and the Second Rights Agreement as in effect
on the date hereof have been provided to Parent. The Company acknowledges
and agrees that Parent is relying upon the Existing Registration Rights
Agreement and the Second Rights Agreement as in effect on the date of the
Purchase Agreement and Parent is aware that the ▇▇▇▇ Investors have not yet
signed the Second Rights Agreement. The Company agrees that, without the
consent of Parent, neither the Existing Registration Rights Agreement nor
the Second Rights Agreement will be amended or modified, including in
negotiations to finalize the Second Rights Agreement with the ▇▇▇▇
Investors in a manner which is adverse to Parent, including without
limitation with respect to increasing the number of demand registrations,
changing the first date upon which a demand registration may be made and
eliminating or reducing holdback arrangements in a manner adverse to an
offering by Parent pursuant to the terms hereof.
9.3 Remedies. The Investors, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under
this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive in any action
for specific performance the defense that a remedy at law would be
adequate.
9.4 Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing
and shall be made by telecopier, courier service or personal delivery:
(a) if to the Company:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: W. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) if to the Investors:
Textron Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Executive Vice President and General Counsel
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
All such notices, demands and other communications shall
be deemed to have been duly given when delivered by hand, if personally
delivered; when delivered by courier, if delivered by commercial courier
service; the next Business Day after being deposited in the mail, postage
prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied. Any party may by notice given in accordance with this Section
9.4 designate another address or Person for receipt of notices hereunder,
and the Company shall update its record books accordingly.
9.5 Successors and Assigns; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the parties hereto as hereinafter
provided. All rights under and the benefit of this Agreement, including
without limitation the Demand Registration rights contained in Article III
hereof, shall be with respect to any Registrable Security that is
transferred to an Affiliate of Parent, automatically transferred to such
transferee who agrees in writing to be bound hereby. All rights under and
benefits of this Agreement, including without limitation each of the two
Demand Registration Rights, may be assigned in writing to a transferee to
whom Parent and/or its Affiliates transfer Registrable Securities
constituting 25% or more of the number of shares of Common Stock
(approximately adjusted for stock splits, subdivisions and similar events)
originally issued pursuant to the Purchase Agreement, provided such
transferee agrees in writing to be bound hereby and such writing specifies
the assignment (it being agreed that if there are two such transferees, one
of the two Demand Registration Rights may be assigned to each such
transferee). Except as set forth in this Section 9.5, Demand Registration
rights and related rights are not assignable to any Person. The incidental
or "piggy-back" registration rights of the Investors contained in Article
IV hereof and the related provisions and benefits, with respect to any
Registrable Security, automatically transferred to any Person who is the
transferee of such Registrable Security. All of the obligations of the
Company hereunder shall survive any such transfer. Any assignment in
violation of this Agreement shall be null and void. Except as provided in
Article VII, no Person other than the parties hereto and their successors
and permitted assigns is intended to be a beneficiary of this Agreement.
9.6 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless consented to in writing by (i) the Company
and (ii) a Majority of the Investors; provided, however, that consent need
not be obtained from an Investor in the case of any amendment,
modification, supplement, waiver or consent that does not affect such
Investor. Any such written consent (or amendment, modification, supplement,
consent or waiver for which written consent of a party is not required in
accordance with this Section 9.6) shall be binding upon the Company and all
of the Investors.
9.7 Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
9.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
9.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
9.10 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions hereof.
9.11 Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or
subsections of this Agreement.
9.12 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, representations, warranties or undertakings,
other than those set forth or referred to herein. This Agreement supersedes
all prior agreements and understandings among the parties with respect to
such subject matter.
9.13 Further Assurances. Each of the parties shall, and
shall cause their respective Affiliates to, execute such documents and
perform such further acts as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
9.14 Other Agreements. Nothing contained in this
Agreement shall be deemed to be a waiver of, or release from, any
obligations any party hereto may have under, or any restrictions on the
transfer of Registrable Securities or other securities of the Company
imposed by, any other agreement including, but not limited to, the Purchase
Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed, or
have caused to be executed, this Agreement on the date first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By:
---------------------------
Name:
Title:
TEXTRON INC.
By:
---------------------------
Name:
Title:
TEXTRON HOLDCO INC.
By:
---------------------------
Name:
Title: