Exhibit 10.91
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REGISTRATION RIGHTS AGREEMENT
by and between
TEXTRON INC.,
TEXTRON HOLDCO INC.
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
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Dated: December 20, 2001
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
1.1 Definitions.......................................................... 1
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights...................................................... 5
2.2 Registrable Securities............................................... 5
2.3 Holders of Registrable Securities.................................... 5
ARTICLE III
DEMAND REGISTRATION
3.1 Request for Demand Registration...................................... 6
3.2 Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration...................................................... 7
3.3 Effective Demand Registration........................................ 8
3.4 Expenses............................................................. 8
3.5 Underwriting Procedures.............................................. 8
3.6 Selection of Underwriters............................................ 9
3.7 Company Preemption Right; Existing Registration Rights Agreement..... 10
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................... 12
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5.2 Restrictions on Public Sale by the Company.......................... 12
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company.......................................... 13
6.2 Seller Information.................................................. 16
6.3 Notice to Discontinue............................................... 17
6.4 Registration Expenses............................................... 17
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company...................................... 18
7.2 Indemnification by Investors........................................ 19
7.3 Conduct of Indemnification Proceedings.............................. 19
7.4 Contribution........................................................ 20
ARTICLE VIII
COVENANTS
8.1 Rule 144............................................................ 21
8.2 ▇▇▇▇▇▇▇▇▇▇▇ and Blackstone Priority of Sale......................... 21
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc................................... 21
9.2 No Inconsistent Agreements.......................................... 22
9.3 Remedies............................................................ 22
9.4 Notices............................................................. 23
9.5 Successors and Assigns; Third Party Beneficiaries................... 24
9.6 Amendments and Waivers.............................................. 25
9.7 Counterparts........................................................ 25
9.8 Headings............................................................ 25
9.9 GOVERNING LAW....................................................... 25
9.10 Severability........................................................ 25
9.11 Rules of Construction............................................... 25
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9.12 Entire Agreement................................................. 25
9.13 Further Assurances............................................... 26
9.14 Other Agreements................................................. 26
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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.
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"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).
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"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.
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"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.
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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
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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
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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 regis-
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tered 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 ad-
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verse 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.
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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
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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 re-
-12-
questing 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:
-13-
(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 ju-
-14-
risdictions 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
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
-15-
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;
-16-
(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 ex-
-17-
tend 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
-18-
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 Li-
-19-
ability 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
-20-
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.
-21-
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 cor-
-22-
rect 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
-23-
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
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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
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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.
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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.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement on the date first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
TEXTRON INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TEXTRON HOLDCO INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
