Exhibit 10.8
REGISTRATION RIGHTS AGREEMENT
Dated as of August 9, 2004
among
Oneida Ltd.
and
Each of the Entities Set Forth on Schedule 1 Hereto
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of
August 9, 2004 by and among Oneida Ltd. (the "Company"), a New York corporation,
and each of the entities set forth on Schedule 1 hereto (each a "Purchaser" and
collectively, the "Purchasers").
WHEREAS, pursuant to the Securities Exchange Agreement (the "Securities
Exchange Agreement") dated as of August 9, 2004 by and among the Company and the
Purchasers, the Purchasers are acquiring concurrently with the execution and
delivery hereof (i) 29,852,909 shares (the "Common Shares") of the Company's
common stock (the "Common Stock"), par value $1.00 per share; and
WHEREAS, as part of and as partial consideration for the acquisition of
the Common Shares by the Purchasers, the Company hereby grants to the Purchasers
the registration rights set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used herein, the terms shall have the following
meanings:
"Agreement" has the meaning set forth in the Introductory Paragraph.
"Black-Out Period" has the meaning set forth in Section 2.1(h).
"Business Day" means any day other than a Saturday, Sunday, or other
day on which banks are closed in the City of New York.
"Closing Date" has the meaning ascribed to it in the Securities
Exchange Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" has the meaning set forth in the Recitals.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Introductory Paragraph.
"Company Registration" has the meaning set forth in Section 2.2(a).
"Delay Notice" has the meaning set forth in Section 2.1(h).
"Demand Registration" has the meaning set forth in Section 2.1(a).
"Demand Registration Threshold" has the meaning set forth in Section
2.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all rules and regulations promulgated thereunder.
"Holders" means the Purchasers and any of their Permitted Transferees
who agree to be bound by the provisions of this Agreement.
"Majority Participants" means the Holders of a majority of the
Registrable Securities included in any registration effected pursuant to the
terms hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, conducted pursuant to the terms hereof.
"Minimum Demand Amount" has the meaning set forth in Section 2.1(a).
"Participants" means the Holders of Registrable Securities included in
any registration effected pursuant to the terms hereof.
"Participants' Counsel" means such counsel as shall be specified by the
Majority Participants with respect to any registration effected hereunder.
"Permitted Transferee" means any Person to whom any Holder shall
transfer any Registrable Securities other than in a registered transaction or in
a brokers' transaction pursuant to Rule 144 of the Securities Act.
"Person" means any individual, corporation, association, partnership,
joint venture, limited liability company, trust, estate or other entity or
organization.
"Purchaser" or "Purchasers" has the meaning set forth in the
Introductory Paragraph.
"Registrable Securities" means (i) the Common Shares issued pursuant to
the Securities Exchange Agreement and (ii) any Common Shares issued or issuable
with respect to the Common Shares referred to in clause (i) by way of a stock
dividend or stock split. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities (a) when a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (b) when such securities
shall have been otherwise transferred other than to a Permitted Transferee, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of such
securities shall not require registration of them under the Securities Act.
"Registration Expenses" means all expenses incident to the registration
and disposition of the Registrable Securities pursuant to Section 2 hereof,
including, without limitation, all registration, filing and applicable national
securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters, if any, in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various jurisdictions), all word processing, duplicating
and printing expenses, all messenger and delivery expenses, the
reasonable fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Participants), the fees and disbursements of
counsel for the Company and of its independent public accountants, including the
expenses of "cold comfort" letters or any special audits required by, or
incident to, such registration, and all out-of-pocket expenses of underwriters
(other than underwriting and brokerage discounts, commissions and other
comparable payments or discounts); provided, however, that Registration Expenses
shall exclude, and the Holders shall pay, all transfer taxes, underwriting and
brokerage discounts, commissions and other comparable payments or discounts in
respect of the Registrable Securities being registered.
"Securities Act" means the Securities Act of 1933, as amended and all
rules and regulations promulgated thereunder.
"Securities Exchange Agreement" has the meaning set forth in the
Recitals.
"Shelf Period" has the meaning set forth in Section 2.1(i).
"Shelf Registration Statement" has the meaning set forth in Section
2.1(i).
2. Registration Under Securities Act.
2.1 Registration on Request.
(a) Demand Request. Holders of Registrable Securities representing at
least fifteen percent (15%) of the outstanding Common Stock as of the Closing
Date (after giving effect to the transactions contemplated by the Securities
Exchange Agreement, such number of shares, the "Minimum Demand Amount") shall
have the right to require the Company to effect the registration under the
Securities Act of all or part of the Registrable Securities held by such Holders
(together with all or a part of the Registrable Securities held by Holders
joining in such request as are specified in a written request received by the
Company within twenty (20) days after the Company delivers notice of such demand
request to all other Holders), by delivering a written request thereof to the
Company specifying the number of shares of Registrable Securities such Holders
wish to register and the intended method of distribution (a "Demand
Registration"); provided, however, that (x) the aggregate number of the
Registrable Securities to be registered pursuant to such Demand Registration
constitutes at least the Minimum Demand Amount and (y) the aggregate proceeds of
the Registrable Securities to be sold pursuant to such Demand Registration is
reasonably likely to exceed $10 million (collectively, the "Demand Registration
Threshold"). The Company shall (i) promptly give written notice of the proposed
Demand Registration to all other Holders and (ii) use its reasonable best
efforts to cause the registration statement to become effective in respect of
each Demand Registration in accordance with the intended method of distribution
set forth in the written request delivered by such Holders as expeditiously as
possible (but in any event, subject to this Section 2.1, within 150 days of
receipt of such written request, and the Company shall file such registration
statement within 90 days of receipt of such written request).
(b) Limitations on Registration on Request. Subject to Section 2.1(a),
the Company shall only be required to effect a maximum of three (3) Demand
Registrations; provided, however, that the Company shall not be required to file
(i) more than one such Demand Registration in any twelve-month period or (ii)
any such Demand Registration within 90 days following the date of effectiveness
of any registration statement relating to a Demand Registration.
(c) Registration Statement Form. Demand Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
selected by the Company.
(d) Expenses. Subject to Section 2.1(g), the Company shall pay all
Registration Expenses incurred in connection with any registration requested
pursuant to this Section 2.1.
(e) Effective Registration Statement. A Demand Registration requested
pursuant to this Section 2.1 shall be deemed to have been effected (including
for purposes of paragraph (b) of this Section 2.1) if a registration statement
with respect thereto has become effective and has been kept continuously
effective for a period of 90 days (or such shorter period which shall terminate
when all the Registrable Securities covered by such registration statement have
been sold pursuant thereto). A Demand Registration which is not effected,
subject to Section 2.1(g), shall not reduce the number of Demand Registrations
permitted hereunder.
(f) Selection of Underwriters. The Managing Underwriters for each
underwritten offering of Registrable Securities to be registered pursuant to a
Demand Registration shall be a nationally or regionally recognized investment
bank that is selected by the Majority Participants (subject to the approval by
the Company, which approval may not be unreasonably delayed or withheld).
(g) Right to Withdraw. If the Managing Underwriters of any underwritten
offering shall advise the Participants in such offering and registration that
the Registrable Securities covered by the registration statement cannot be sold
in such offering within a price range acceptable to any such Participant, such
Participant shall have the right to decline to participate in such offering and
registration; provided, however, that the Company shall not be required to
effect a Demand Registration if the Demand Registration Threshold is not
satisfied. In addition, if such Managing Underwriters shall advise such
Participants that the Registrable Securities covered by the registration
statement cannot be sold in such offering within a price range acceptable to the
Majority Participants, then the Majority Participants shall have the right to
notify the Company in writing that they have determined that the registration
statement shall be abandoned or withdrawn, in which event the Company shall
abandon or withdraw such registration statement. In the event of any such
abandonment or withdrawal, such request shall be counted as a Demand
Registration for purposes of the requests for registration to which the Holders
are entitled pursuant to this Section 2.1 unless the Holders who originally
elected to participate in such registration pay all Registration Expenses
incurred in connection with such request within 30 Business Days following the
Company's request thereafter.
(h) Postponement. The Company shall be entitled once in any
twelve-month period to postpone for a reasonable period of time (but not
exceeding an aggregate of 60 days, any such period, a "Black-Out Period") the
filing or effectiveness of any registration statement required to be prepared
and filed by it pursuant to this Section 2.1 if the Company determines, in its
reasonable judgment and based on the advice of its counsel, that such
registration and offering would materially interfere with any material financing
or other material transaction involving the Company, or if there is an event or
state of facts relating to the Company that is material to the Company the
disclosure of which would, in the reasonable judgment of the Company, be
materially adverse to its interests, and promptly delivers to the Participants
in such offering a certificate signed by the Company's chief executive officer
or chief financial officer (a "Delay Notice") stating such determination,
containing a general statement of the reasons for such postponement and an
estimate of the anticipated delay (but the Company shall not be required to
include in such notice any reference to or description of the facts based upon
which the Company is delivering such Delay Notice). If the Company shall so
postpone the filing of a registration statement, (i) the Company shall use its
reasonable best efforts to limit the delay to as short a period as is
practicable, and (ii) the Majority Participants shall have the right to withdraw
the Demand Registration request by giving written notice to the Company within
10 Business Days of receipt of a Delay Notice and, in the event of such
withdrawal, such Demand Registration shall not be counted for purposes of
requests for Demand Registration to which the Holders are entitled pursuant to
this Section 2.1. The Company shall remain obligated to pay all Registration
Expenses in such event.
(i) Shelf Registration. Provided that the Company is then and continues
to be eligible to use Form S-3 under the Securities Act or any successor form to
register securities for sale by a Holder, (i) prior to the second anniversary of
the Closing Date, any Holder and (ii) after the second anniversary of the
Closing Date, Holders of Registrable Securities representing at least ten
percent (10%) of the then outstanding shares of Common Stock may request that
the Company effect a registration of Registrable Securities by means of a shelf
registration (a "Shelf Registration Statement"). The Company shall, at its cost,
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective for such period as shall be designated by the Holder
requesting such registration (the "Shelf Period") or such shorter period which
shall terminate when all the Registrable Securities covered by such registration
statement have been sold pursuant thereto; subject to the occurrence of any
Black-Out Period(s) that may exist from time to time.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at any time
proposes to register any of its common stock for its own account (a "Company
Registration") or the account of any other stockholder (including a Holder)
under the Securities Act by registration on Form ▇-▇, ▇-▇, or S-3 or any
successor or similar form(s) (except registrations on any such form or similar
form(s) solely for registration of securities in connection with an employee
benefit plan or dividend reinvestment plan or a merger or consolidation or
incidental to an issuance of securities under Rule 144A under the Securities
Act), it will each such time give prompt written notice to all of the Holders of
its intention to do so and of the Holders' rights under this Section 2.2. Upon
the written request of any Holder (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by such Holder) made
as promptly as practicable and in any event within 10 days after the receipt of
any such notice, the Company shall use its reasonable best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by such Holder; provided, however,
that in the case of a Company Registration, if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company shall give written notice of such
determination and (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from any obligation of the Company to pay the
Registration Expenses in connection therewith), without prejudice, however, to
the rights of the Holders to request that such registration be effected as a
registration under Section 2.1 and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other securities. No
registration effected under this Section 2.2 shall relieve the Company of its
obligation to effect any registration upon request under Section 2.1. The
Company will pay all Registration Expenses in connection with any registration
of Registrable Securities requested pursuant to this Section 2.2.
(b) Right to Withdraw. Any Participant shall have the right to withdraw
its request for inclusion of its Registrable Securities in any registration
statement pursuant to this Section
2.2 at any time prior to the execution of an underwriting agreement with respect
thereto by giving written notice to the Company of its request to withdraw.
(c) Priority in Incidental Registrations. In the case of a Company
Registration, if the Managing Underwriters of any underwritten offering shall
inform the Company by letter of its belief that the number of Registrable
Securities requested to be included in such registration, when added to the
number of other securities to be offered by the Company in such registration,
would materially adversely affect such offering, then the Company shall include
in such registration, to the extent of the number which the Company is so
advised can be sold in (or during the time of) such offering without so
materially adversely affecting such offering, securities in the following
priority: (A) securities proposed to be included by the Company, (B) the
Registrable Securities requested by the Holders to be included in such
registration pursuant to this Section 2.2, and (C) any securities of the Company
requested to be included in such registration by any other holder having the
right to include securities, on a pro rata basis, based on the number of shares
of Common Stock held, or obtainable by exercise or conversion of other
securities of the Company, by such holder.
(d) Plan of Distribution. Any participation by the Holders of
Registrable Securities in a Company Registration shall be in accordance with the
Company's plan of distribution.
2.3 Registration Procedures. If and whenever the Company is required,
pursuant to the terms of this Agreement, to effect the registration of any
Registrable Securities under the Securities Act in accordance with Sections 2.1
or 2.2, the following procedures shall apply:
(a) The Company shall:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration (and shall include
all financial statements required by the Commission to be filed
therewith) and thereafter use its reasonable best efforts to cause such
registration statement to become effective; provided that the Company
may discontinue any registration of its securities which are not
Registrable Securities at any time prior to the effective date of the
registration statement relating thereto;
(ii) furnish to the Participants such number of conformed
copies of the registration statement and each amendment thereof and
each amendment or supplement, if any, to the prospectus included
therein (including all documents incorporated by reference therein
after the initial filing) as such Participants shall reasonably
request; and
(iii) include in the registration statement information
regarding the Participants and the methods of distribution they have
elected and so informed the Company, for their Registrable Securities,
as necessary to permit such distribution by the methods specified
therein.
(b) The Company shall give notice to the Participants:
(i) when the registration statement and any amendment thereto
has been filed with the Commission and when the registration statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the registration statement or the prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
institution of any proceeding for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities included therein for sale in any jurisdiction or the
institution of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the registration statement or the prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and (B)
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in the light of the circumstances under which they were
made) not misleading.
(c) The Company shall use its reasonable best efforts to obtain as soon
as possible the withdrawal of any order suspending the effectiveness of the
registration statement or the qualification of the securities therein for sale
in any jurisdiction.
(d) The Company shall promptly deliver to each Participant without
charge, as many copies of the prospectus (including a preliminary prospectus)
included in the registration statement and any amendment or supplement thereto
as any such Participant may reasonably request. The Company consents to the use
of the prospectus or any amendment or supplement thereto by each of the
foregoing in connection with the offering and sale of the Registrable Securities
pursuant to this Agreement (except during any Black-Out Period).
(e) Prior to any offering of Registrable Securities pursuant to a
registration statement, the Company shall arrange for the qualification of the
Registrable Securities for sale under the laws of such jurisdictions as any
Participant shall reasonably request and shall maintain such qualification in
effect so long as required; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not then so
qualified, to consent generally to the service of process in such jurisdiction,
or to take any action in connection therewith that would subject it to taxation.
(f) Upon the occurrence of any event contemplated by subsections
(b)(iii) or (v) above, the Company shall promptly prepare a post-effective
amendment to the registration statement or an amendment or supplement to the
related prospectus or file any other required document so that the registration
statement and the prospectus will not include 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 the case of the
prospectus, in the light of the circumstances under which they were made) not
misleading.
(g) The Company shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act as soon as practicable after the effective date of the registration
statement and in any event no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the registration statement.
(h) In connection with any underwritten offering effected hereunder,
the Company shall:
(i) make reasonably available for inspection during normal
business hours by the Participants' Counsel, counsel to the
underwriters, or any such underwriter all material financial and other
records and material corporate documents of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all material information reasonably
requested by the Participants' Counsel or counsel to the underwriters
or any such other Persons as is reasonable and customary for similar
due diligence examinations;
(iii) cause the Company's officers, directors, employees,
accountants and auditors, as appropriate, to meet with the
Participants, the Participants' Counsel, the Managing Underwriters or
counsel to the underwriters to discuss the contents of the registration
statement and the Company shall reflect in the registration statement
such comments as such Persons reasonably propose;
(iv) enter into an underwriting agreement in customary form
(including indemnification of the underwriters on substantially the
same terms as contained in Section 2.4 hereof);
(v) make such representations and warranties to the
Participants and the underwriters in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings;
(vi) obtain opinions of counsel to the Company and updates
thereof (which opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed
to the Participants and the underwriters, if any, covering such matters
as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
Participants and underwriters;
(vii) obtain "comfort" letters and updates thereof from the
independent accountants of the Company (and, if necessary, any other
independent accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the registration
statement), addressed to the Participants and the underwriters, if any,
in customary form and covering matters of the type customarily covered
in "comfort" letters in connection with underwritten offerings;
(viii) deliver such documents and certificates as may be
reasonably requested by the Majority Participants or the Managing
Underwriters, if any, including those to evidence compliance with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company;
(ix) deliver to the Managing Underwriters and their counsel
all notices and other documents required to be provided to the
Participants pursuant to this Section 2.3; and
(x) assist the Managing Underwriters in complying with the
rules and regulations of the National Association of Securities
Dealers.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (b)(iii) or (v) of
this Section 2.3, such Holder will, to the extent appropriate, discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until, in the case of paragraph (b)(v)
of this Section 2.3, its receipt of the supplemented or amended prospectus
contemplated by paragraph (b)(v) of this Section 2.3 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in its possession, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice. If the disposition by a Holder of its securities is discontinued
pursuant to the foregoing sentence, the Company shall extend the period of
effectiveness of the registration statement by the number of days during the
period from and including the date of the giving of notice to and including the
date when such Holder shall have received copies of the supplemented or amended
prospectus contemplated by paragraph (b)(v) of this Section 2.3; and, if the
Company shall not so extend such period, the request pursuant to which such
registration statement was filed shall not be counted for purposes of the
requests for registration to which the Holders are entitled pursuant to Section
2.1 hereof.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Agreement in respect of the Registrable
Securities which are to be registered at the request of any Participant that
such Participant shall furnish to the Company within ten days of the Company's
request such information regarding the Participants and the Registrable
Securities held by such Holder and the intended method of disposition thereof as
the Company shall reasonably request and as shall be required in connection with
the action taken by the Company.
2.4 Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees that in the
event of any registration of any securities of the Company pursuant to this
Agreement, the Company shall, and hereby does, indemnify and hold harmless each
Holder, its directors, officers, members, and partners, and each other Person
who participates as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls such Holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages,
or liabilities, joint or several, to which such Holder or any such director,
officer, member, or partner, or underwriter or controlling Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities, joint or several (or actions or proceedings in respect
thereof), arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act on the
effective date thereof, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto or (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
prospectus, in light of the circumstances in which they were made) not
misleading, and the Company shall reimburse such Holder and each such director,
officer, member, or partner, underwriter and controlling Person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided,
however, that the Company shall not be liable in any such case to a Holder or
any such director, officer, member, partner, or controlling Person of such
Holder to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company expressly for use
in connection with such registration by or on behalf of such Holder; provided,
further, that as to any preliminary prospectus with respect to an underwritten
registration (other than any shelf registration), this indemnity agreement shall
not inure to the benefit of any Holder on account of any loss, claim, damage,
liability or action arising from the sale of Common Shares to any person by that
Holder if that Holder failed to send or give a copy of the final prospectus to
that person, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
preliminary prospectus thereto was corrected in the final prospectus. Such
indemnity shall remain in full force regardless of any investigation made by or
on behalf of a Holder or any such director, officer, member, partner,
underwriter or controlling Person and shall survive the delivery of and the
payment for the Common Shares sold by a Holder.
(b) Indemnification by the Holders. Each Holder including any
Registrable Securities in any registration statement hereby agrees to indemnify
and hold harmless, severally and not jointly (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.4), the Company, and each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus
contained therein, or any amendment or supplement thereto, but only to the
extent such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder specifically stating that it is for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling Person
and shall survive the delivery of and the payment for the Common Shares sold by
such Holder.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subsections of this Section 2.4, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.4, except to the extent that the indemnifying party is not otherwise
aware of the claim and is actually materially prejudiced by such failure to give
notice, and shall not relieve the indemnifying party from any liability which it
may have to the indemnified party otherwise than under this Section 2.4. In case
any such action or proceeding is brought against an indemnified party, the
indemnifying party shall assume the defense of such action, including the
employment of counsel to be chosen by the indemnifying party which is reasonably
satisfactory to the indemnified party, and payment of expenses. The indemnified
party shall have the right to employ its own counsel (including local counsel)
in any such case, but the legal fees and expenses of such counsel shall be at
the expense of the indemnified party unless (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action, (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to take charge
of the defense of such action within a reasonable period of time after notice of
the institution of such action, (iii) the indemnified party shall have
reasonably concluded that there may be defenses available to it or them that are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party), or (iv) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, in any of which events such
fees and expenses shall be borne by the indemnifying party. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement that (i) does not include as an unconditional term thereof
the giving by the plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation or (ii) provides for relief
other than the payment of monetary damages (and such monetary damages shall be
paid in full by the indemnifying party).
(d) Contribution. If the indemnification provided for in this Section
2.4 shall for any reason be held by a court to be unavailable to an indemnified
party under subsection (a) or (b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, then, in lieu of the amount paid
or payable under subsection (a) or (b) hereof, the indemnified party and
the indemnifying party under subsection (a) or (b) hereof shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the allocation
provided in this clause (ii) provides a greater amount to the indemnified party
than clause (i) above, in such proportion as shall be appropriate to reflect not
only the relative fault but also the relative benefits received by the
indemnifying party and the indemnified party from the offering of the securities
covered by such registration statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 2.4(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 2.4(d). 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. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
(e) Other Indemnification. The indemnification agreements contained in
this Section 2.4 shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
and shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and the payment for the Common Shares sold by a Holder.
(f) Indemnification Payments. The indemnification and contribution
required by this Section 2.4 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expenses, losses, damages or liabilities are incurred.
2.5 Unlegended Certificates.
(a) In connection with the offering of any Registrable Securities
registered pursuant to this Agreement, the Company shall (i) facilitate the
timely preparation and delivery to each Holder and underwriter, if any,
participating in such offering, of unlegended certificates representing
ownership of such Registrable Securities being sold in such denominations and
registered in such names as requested by such Holder or such underwriters and
(ii) instruct any transfer agent and registrar of such Registrable Securities to
release any stop transfer orders with respect to any such Registrable
Securities.
(b) At any time, as soon as practicable after the delivery by a Holder
to the Company of an opinion of counsel, reasonably satisfactory to the Company,
to the effect that such Holder is then eligible to sell its Registrable
Securities under clause (k) of Rule 144 under the Securities Act, the Company
shall provide to such Holder unlegended certificates representing ownership of
such Holder's Registrable Securities.
2.6 Limitation on Sale or Distribution of Other Securities.
(a) Each Holder of Registrable Securities (regardless of whether such
Holder is participating in such registration) agrees, to the extent requested in
writing by a Managing Underwriter of any underwritten registration effected
pursuant to and in compliance with Section 2.1 or 2.2, not to sell, transfer or
otherwise dispose of, including any sale pursuant to Rule 144 under the
Securities Act, any shares of Common Stock, or any other security of the Company
convertible into or exchangeable or exercisable for Common Stock (other than as
part of such underwritten public offering) during the time period reasonably
requested by the Managing Underwriters, not to exceed 180 days and subject to
any piggyback registration rights.
(b) Notwithstanding the other provisions of this Agreement, the Company
shall not be obligated to register the Registrable Securities of any Holder (i)
if such Holder or any underwriter of such Registrable Securities shall fail to
furnish to the Company necessary information in respect of the distribution of
such Registrable Securities, or (ii) in the case of a Company Registration, if
such registration involves an underwritten offering, such Registrable Securities
are not included in such underwritten offering on the same terms and conditions
as shall be applicable to the other securities of the Company being sold through
underwriters in the registration or such Holder fails to enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwritten offering.
2.7 No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.8 Exchange Act Compliance. If the Company is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file
all reports required to be filed by it under the Exchange Act and it will take
such further action as any Holder may reasonably request, so as to enable such
Holder to sell Registrable Securities without registration under the Securities
Act pursuant to Rule 144 under the Securities Act, as such rule may be in effect
from time-to-time, or any similar or successor rule or regulation hereafter
promulgated by the Commission. Upon the request of any Holder, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such requirements.
3. Miscellaneous.
3.1 Amendments and Waivers. (i) Any provision of this Agreement may be
amended or waived if such amendment or waiver is in writing and signed, in the
case of an amendment, by the Company and a majority in interest of the Holders
or, in the case of a waiver, by the party or
parties against whom the waiver is to be provided; provided, however, that
waiver by the Holders shall require the consent of a majority in interest of the
Holders.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder (other than a failure or delay beyond a period of
time specified herein) shall operate as a waiver thereof and no single or
partial exercise thereof shall preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
3.2 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing and delivered by hand-delivery, registered first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery, as follows:
If to the Company:
Oneida Ltd.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Shearman & Sterling LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Holder:
See Schedule 1 hereto.
With a copy to:
In the case of a Lender or a Noteholder (as indicated on
Schedule 1 hereto), to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other place and with such other copies as either
party may designate as to itself by written notice to the
other.
All such notices, requests, instructions or other documents
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; when receipt is acknowledged by addressee, if by
telecopier transmission; and on the next business day if timely delivered to a
nationally recognized courier guaranteeing overnight delivery.
3.3 Assignment; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. The registration
rights of any Holder with respect to any Registrable Securities may be
transferred to any Permitted Transferee; provided that such Holder shall have
delivered a notice to the Company of the name and contact information of such
Permitted Transferee, and the Permitted Transferee agrees to be bound by the
terms hereof. All of the obligations of the Company hereunder shall survive such
transfer. Except as provided in Section 2.4, no Person other than the parties
hereto and their successors and permitted assigns is intended to be a third
party beneficiary of this Agreement.
3.4 Specific Performance. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement, and shall be entitled to enforce specifically the provisions of this
Agreement in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which the parties may be
entitled under this Agreement, any other document which is part of the
transactions contemplated hereby or at law or in equity.
3.5 No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company further represents
and warrants that the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with any other agreements to which the
Company is a party or by which it is bound.
3.6 Descriptive Headings. The headings of the Articles and Sections
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
3.7 Governing Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the internal laws of the
State of New York. Each of the parties to this Agreement hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and the United States of America located in the County
of New York for any action or proceeding arising out of or relating to this
Agreement (and agrees not to commence any action or proceeding relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 3.2 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement in the courts of
the State of New York or the United States of America located in the County of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
3.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.9 Invalidity of Provision. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any other such instrument.
3.10 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and documents as any
other party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
3.11 Entire Agreement; Effectiveness. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, oral
and written, between the parties hereto with respect to the subject matter
hereof.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Title: Chief Executive Officer
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------
Title: Managing Director
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD.
By: Anchorage Advisors, L.L.C., its advisor
By: Anchorage Advisors Management, L.L.C.,
its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Title: Member
BANK OF AMERICA, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Assistant Vice President
Signature Pages to Registration Rights Agreement
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Director
CARGILL FINANCIAL SERVICES
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------
Title: Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Title: Cargill Value Investment
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
BANK OF AMERICA STRATEGIC SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
LOEWS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Title: Treasurer
Signature Pages to Registration Rights Agreement
▇▇▇▇▇ EVENT TRADING
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
Title: General Counsel
SPS HIGH YIELD LOAN TRADING
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------
Title: Managing Director
QUADRANGLE MASTER FUNDING LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------
Title: Member
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, ▇▇ ▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Title: President
STRATEGIC VALUE MASTER FUND, LTD.
By: Strategic Value Partners, L.L.C.
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Title: Authorized Signatory
Signature Pages to Registration Rights Agreement
MAN MAC 3 LIMITED
Strategic Value Partners, L.L.C.
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Title: Authorized Signatory
LITESPEED MASTER FUND LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Managing Member
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------
Title: Vice President
CHART HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------
Title: President
Signature Pages to Registration Rights Agreement
Schedule I
Name and Address of Financial Institution
Lenders:
Anchorage Capital Master Offshore, Ltd.
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bank of America, NA
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
NC1-001-15-04
Attn: TLC 004
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Banc of America Strategic Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Financial Services International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Lenders (continued)
Chart Holding Corp.
c/o ▇▇ ▇▇▇▇▇▇ Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Loews Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Quadrangle Debt Recovery Income Fund Master Ltd
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SPS High Yield Loan Trading
▇▇▇▇▇▇▇ Capital Management, ▇▇ ▇▇
▇▇▇▇▇ Event Trading
General Electric Capital Corporation
Corporate Financial Services
▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail Address: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇
Noteholders:
Strategic Value Master Fund Ltd.
c/o Strategic Value Partners LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Man Mac 3 Limited
c/o Strategic Value Partners LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Litespeed Master Fund, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇