EXHIBIT 4.5
RBX CORPORATION
Common Stock, Par Value $.01 Per Share
12% Senior Secured Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
-----------------------------
New York, New York
August 27, 2001
The Equitable Life Assurance Society of the PPM America Special Investments
United States CBO II, L.P.
c/o Alliance Capital Management L.P. c/o PPM America, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx 000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Alliance Capital Investment Opportunities Fund Foothill Partners III, L.P.
c/o Alliance Capital Management L.P. c/o Foothill Capital Corporation
0000 Xxxxxx xx xxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
XXX America Special Investments Fund, L.P.
c/o PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
RBX Corporation, a Delaware corporation (the "Issuer"), has issued to you
(collectively, the "Initial Purchasers"), upon the terms set forth in the Second
Amended Joint Plan of Reorganization (as amended, restated, supplemented or
otherwise modified from time to time, the "Plan") of the Issuer and the
subsidiaries of the Issuer signatories thereto, dated May 11, 2001, 635,576
shares of the common stock, par value $.01 per share (the "Common Stock"), of
the Issuer, $16,500,000 aggregate principal amount of its 12% Senior Secured
Notes Due 2006 (the "Senior Secured Notes"), and 11,563 warrants (the
"Warrants") to purchase shares of Common Stock (the "Warrant Shares"). The
Senior Secured Notes were issued pursuant to an Indenture, dated as of August
27, 2001 (the "Indenture"), among the Issuer, RBX Industries, Inc., a Delaware
corporation, (the "Guarantor" and, together with the Issuer, the "Company"), and
State Street Bank and Trust Company (the "Trustee").
The foregoing shares of Common Stock, Warrants, Warrant Shares and Senior
Secured Notes are hereinafter collectively referred to as the "Transfer
Restricted Securities"; provided, however, that such shares of Common Stock,
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Warrants, Warrant Shares and Senior Secured Notes shall cease to be Transfer
Restricted Securities (i) upon any sale or distribution thereof pursuant to the
Registration Statement described herein or Rule 144 under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) if the Holder thereof is
permitted to sell such shares of Common Stock, Warrants, Warrant Shares and
Senior Secured Notes without volume restriction under the Securities Act and any
state securities laws. Each Initial Purchaser owns the aggregate amounts of
Transfer Restricted Securities specified with respect to such Initial Purchaser
in Schedule A hereto. As an inducement to the Initial Purchasers, the Company
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agrees with the Initial Purchasers, for the benefit of the holders of the
Transfer Restricted Securities, including, without limitation, the Initial
Purchasers (collectively, the "Holders"), as follows:
1. Shelf Registration. (a) The Company:
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(i) shall cause to be filed with the Securities and Exchange
Commission (the "Commission"), on or before December 22, 2001, a shelf
registration statement (the "Registration Statement") on an appropriate
form under the Securities Act, relating to the offer and sale of the
Transfer Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Registration
Statement and Rule 415 under the Securities Act (hereinafter, the "Shelf
Registration"); and
(ii) shall use its reasonable best efforts to have such Shelf
Registration declared effective by the Commission as soon as practicable
thereafter, but in no event later than February 20, 2002;
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Transfer Restricted Securities held by it covered by such
Registration Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Registration Statement continuously effective, supplemented and amended in order
to permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Transfer Restricted Securities for a period of four
years (or for such longer period if extended pursuant to Section 2(b) below)
from the date of its effectiveness or such shorter period that will terminate on
the date on which all of the Transfer Restricted Securities have been sold (in
any such case, such period being called the "Shelf Registration Period");
provided, however, that the Registration Statement shall not be required to be
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maintained in effect for the benefit of any Holder that holds shares of Common
Stock representing less than 10% of the shares of Common Stock then outstanding.
The Company shall be deemed not to have used its reasonable best efforts to keep
the Registration Statement effective during the Shelf Registration Period if it
voluntarily takes any action that would result in Holders of the Transfer
Restricted Securities covered thereby not being able to offer and sell such
Transfer Restricted Securities during the Shelf Registration Period, unless such
action is required by applicable law or as provided in Section 2(a)(iii). (As
used herein, except as otherwise provided or unless the context otherwise
requires, the term "prospectus"
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refers to the prospectus included in the Registration Statement at the time such
Registration Statement is declared effective, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
prospectus.)
2. Registration Procedures. (a) In connection with the Registration
-----------------------
Statement and any related prospectus required by this Registration Rights
Agreement ("Agreement"), the Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the Shelf Registration Period. Upon the occurrence of any
event that would cause the Registration Statement or the prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of Transfer Restricted Securities
during the Shelf Registration Period, the Company shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of
clause (A), correcting such misstatement or omission, and (2) in the case
of either clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and the Registration Statement and the
related prospectus to become usable for their intended purposes as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the Shelf Registration
Period, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; cause the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with Rules 424 and 430A, as
applicable, under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
Transfer Restricted Securities covered by such Registration Statement
during the Shelf Registration Period in accordance with the intended method
or methods of distribution by the Holders thereof set forth in such
Registration Statement or supplement to the prospectus;
(iii) notify the underwriter(s), if any, and Holders promptly and, if
requested by such persons, confirm such notice in writing (which notice
pursuant to sub-clauses (B)-(D) of this clause (iii) shall be accompanied
by an instruction to suspend the use of the prospectus until the requisite
changes have been made), (A) when the prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with respect to
any Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Securities Act or of the suspension
by any state securities commission or other regulatory authority of the
qualification or exemption from qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the
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preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration Statement in
order to make any statement of a material fact therein not misleading, or
that requires the making of any additions to or changes in the prospectus
in order to make any statement of a material fact therein, in the light of
the circumstances under which it was made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) make available to each Holder named in the Registration Statement
or prospectus and each of the underwriter(s) in connection with such sale,
if any, before filing with the Commission, copies of the Registration
Statement or any prospectus included therein or any amendments or
supplements to the Registration Statement or any prospectus (including all
documents incorporated by reference after the initial filing of the
Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale, if
any, for a period of at least five business days, and the Company will not
file the Registration Statement or any prospectus or any amendment or
supplement to the Registration Statement or any prospectus (including all
such documents incorporated by reference) to which the Holders of the
Transfer Restricted Securities covered by the Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably
object within five business days after the receipt thereof. A Holder or
underwriter, if any, shall be deemed to have reasonably objected to such
filing if the Registration Statement, amendment, prospectus or supplement,
as applicable, as proposed to be filed, contains a material omission or
fails to comply with the applicable requirements of the Securities Act;
(v) promptly upon the filing of any document that is to be
incorporated by reference into the Registration Statement or prospectus,
make available copies of such document to the Holders and to the
underwriter(s) in connection with such sale, if any, make the Company's
representatives reasonably available for discussion of such document and
other customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders or underwriter(s), if
any, reasonably may request;
(vi) make available at reasonable times for inspection by the Holders,
any underwriter participating in any disposition pursuant to the
Registration Statement and any attorney or accountant retained by such
Holders or any of such underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with the Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior
to its effectiveness; provided that any person to
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whom information is provided under this clause (vi) agrees in writing to
maintain the confidentiality of such information to the extent such
information is not in the public domain;
(vii) if requested by any Holders or the underwriter(s) in connection
with such sale, if any, promptly include in the Registration Statement or
prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders and underwriter(s), if any, may
reasonably request in writing to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the number of
shares of Common Stock, Warrants, Warrant Shares and the principal amount
of Senior Secured Notes being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the
Transfer Restricted Securities to be sold in such offering; and make all
required filings of such prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be
included in such prospectus supplement or post-effective amendment;
(viii) furnish to each Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, and make available all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein
by reference);
(ix) deliver to each Holder and each of the underwriter(s), if any,
without charge, as many copies of the prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use of
the prospectus and any amendment or supplement thereto by each of the
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including, unless not required
pursuant to Section 7 hereof, an underwriting agreement) and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to the
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to the Registration Statement,
and in such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten registration,
the Company shall:
(A) furnish to each Holder and each underwriter, if any, upon
the effectiveness of the Registration Statement:
(1) a certificate, dated the effective date of the
Registration Statement, signed by the President or any Vice
President and a principal financial or accounting officer of
the Company, confirming, as of the date
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thereof, such matters as the Holders and/or underwriter(s) may
reasonably request in writing not less than five business days
prior to such date; and
(2) an opinion, dated the effective date of the Registration
Statement, of counsel for the Company, covering such matters of
the type customarily covered in opinions of counsel for an issuer
in connection with similar securities offerings, as may
reasonably be requested by such parties in writing not less than
five business days prior to such date;
(B) make such representations and warranties to the Holders of
Transfer Restricted Securities registered thereunder and the
underwriter(s), if any, in form, substance and scope as are
customarily made by issuers to underwriters in connection with similar
securities offerings;
(C) use its reasonable best efforts to set forth in full or
incorporate by reference in the underwriting agreement, if any, in
connection with any sale or resale pursuant to the Registration
Statement the indemnification provisions and procedures of Section 4
hereof with respect to all parties to be indemnified pursuant to said
section; and
(D) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the Holders or underwriter(s), if any, may request
and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where
it is not now so registered or qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as
to matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
amounts and denominations and in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to the
closing of such sale of Transfer Restricted Securities;
6
(xiii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the Holders or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xiv) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. ("NASD") and in the
performance of any due diligence investigation by any underwriter
(including any "qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the NASD, and use
its reasonable best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities as may
be necessary to enable the Holders Transfer Restricted Securities to
consummate the distribution of such Transfer Restricted Securities;
(xv) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to the Registration
Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 under the Securities Act covering a
twelve-month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the
Securities Act);
(xvi) provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act; and
(xvii) if the registration is a registration in which securities of
the Company are sold to an underwriter for reoffering to the public, use
its reasonable best efforts to obtain a customary comfort letter, dated as
of the date of effectiveness of the Registration Statement, addressed to
the Board of Directors of the Company or any underwriter from the Company's
independent accountants, in the customary form and covering matters of the
type customarily covered in comfort letters to boards of directors in
underwritten offerings.
(b) Upon the occurrence of any event contemplated by sub-clauses (B)-(D) of
clause (iii) of Section 2(a), during the Shelf Registration Period, the Company
shall promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any required documents
so that, as thereafter delivered to the Holders or purchasers of the Transfer
Restricted Securities, the prospectus will 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 are made, not misleading. If the Company notifies the Holders in
accordance with clause (iii) of Section 2(a) above to suspend the use of such
prospectus until the requisite changes to the prospectus have been made, then
the Holders shall suspend use of such prospectus, and the period of
effectiveness of the Registration Statement provided for in Section 1(b) above
shall be extended by the number of days from and including the date of the
giving of such notice to and
7
including the date when the Holders shall have received such amended or
supplemented prospectus pursuant to this Section 2(b).
(c) Not later than the effective date of the Registration Statement, the
Company: (i) will obtain a CUSIP number for the Common Stock and provide the
Company's registrar or transfer agent with printed certificates for the Common
Stock in a form eligible for deposit with the Depository Trust Company; (ii)
will obtain a CUSIP number for the Warrants and provide the Company's registrar
or transfer agent with printed certificates for the Warrants in a form eligible
for deposit with Depository Trust Company; and (iii) will obtain a CUSIP number
for the Senior Secured Notes and provide the trustee with printed certificates
for the Senior Secured Notes in a form eligible for deposit with The Depository
Trust Company.
(d) The Company may require each Holder of Transfer Restricted Securities
to be sold pursuant to the Registration Statement to furnish to the Company in
writing such information regarding the Holder and the distribution of the
Transfer Restricted Securities as the Company may from time to time reasonably
require for inclusion in the Registration Statement, and the Company may exclude
from such registration the Transfer Restricted Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(e) The Company shall use its reasonable best efforts to cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as amended
("TIA"), not later than the effective date of the Plan, and, in connection
therewith, shall cooperate with the Trustee and the Holders of the Senior
Secured Notes constituting Transfer Restricted Securities to effect such changes
in the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and shall execute and use its reasonable
best efforts to cause the Trustee to execute, all documents that may required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
(f) The Company shall cause all shares of Common Stock and all Warrants
covered by the Registration Statement to be listed on each securities exchange
or automated quotation system on which any shares of Common Stock or any
Warrants are listed. The Company shall cause all Senior Secured Notes covered by
the Registration Statement to be listed on each securities exchange or automated
quotation system on which any Senior Secured Notes are listed.
(g) The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Transfer Restricted Securities that would
materially adversely affect the ability of the Holders to include such Transfer
Restricted Securities in the Shelf Registration contemplated by this Agreement
or the marketability of such Transfer Restricted Securities under any such
registration or other offering.
3. Registration Expenses. (a) All expenses incident to the Company's
---------------------
performance of or compliance with this Agreement will be borne by the Company
regardless of whether the Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made with the NASD (and, if applicable, the
8
reasonable fees and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the NASD)); (ii)
all fees and expenses associated with compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including
printing of certificates for the Common Stock and the Senior Secured Notes and
the prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and, subject to Section 3(b) below,
the Holders; (v) all application and filing fees in connection with listing
Transfer Restricted Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance or compliance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any person, including special experts, retained by the
Company.
(b) The Company will reimburse the Holders of Transfer Restricted
Securities registered pursuant to the Registration Statement for the reasonable
fees and disbursements of not more than one counsel, which shall be Xxxx, Gump,
Xxxxxxx, Xxxxx & Xxxx, L.L.P. or such other counsel as may be chosen by the
Holders of a majority of the shares of Common Stock covered by the Registration
Statement contemplated hereby. Notwithstanding the provisions of this Section 3,
each Holder shall bear the expense of any broker's commission, agency fee or
underwriter's discount or commission.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
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each Holder of the Transfer Restricted Securities, its officers and directors
and any investment advisor registered as such under the Investment Company Act
of 1940, as amended, acting for a Holder of the Transfer Restricted Securities,
and each person, if any, who controls such Holder (or such investment advisor)
within the meaning of the Securities Act or the Exchange Act (each Holder and
such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof as incurred (including, but not
limited to, reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any investigation or
litigation, commenced or threatened, or any claim whatsoever, and in enforcing
this indemnification, and any and all amounts paid in settlement of any claim or
litigation) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any reasonable legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue
9
statement or omission or alleged omission made in the Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein; provided further, however, that this
indemnity agreement will be in addition to any liability that the Company may
otherwise have to such Indemnified Party under any other agreement or under
applicable law. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Transfer Restricted
Securities if requested by such Holders.
(b) Each Holder of the Transfer Restricted Securities, severally and not
jointly, will indemnify and hold harmless the Company, its officers and
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act from and against any losses, claims,
damages or liabilities or any actions in respect thereof (including, but not
limited to, reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any investigation or
litigation, commenced or threatened, or any claim whatsoever, and in enforcing
this indemnification, and any and all amounts paid in settlement of any claim or
litigation), to which the Company, its officers and directors or any such
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the prospectus
contained therein or in any amendment or supplement thereto or in any
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; provided, however, that in no case shall any Holder be
liable or responsible for any amount in excess of the dollar amount of the
proceeds received by such Holder upon the sale of the Transfer Restricted
Securities giving rise to such indemnification obligation. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company, its officers or directors or any of its controlling persons
under any other agreement or under applicable law.
(c) Promptly after receipt by an indemnified party under Section 4(a) or
4(b) of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof; the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof; with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, except to the extent set forth below,
the indemnifying party will not be liable to such indemnified
10
party under this Section 4 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying party or parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under Section 4(a) or
4(b) above shall only be liable for the legal expenses of one counsel (in
addition to any local counsel) for all indemnified parties in each jurisdiction
in which any claim or action is brought. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 4 is unavailable or
insufficient to hold harmless an indemnified party under Sections 4(a) or 4(b)
above, then each 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 the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in Section 4(a) or 4(b) above in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 4(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this Section 4(d). The Company and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 4(d)
were determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to above.
Notwithstanding any other provision of this Section 4(d), no Holder shall be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Transfer Restricted
Securities pursuant to the Registration Statement exceeds the amount of damages
which such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged
11
omission. 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. For purposes
of this Section 4(d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Transfer Restricted Securities pursuant to the Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
5. Rule 144. Prior to the expiration of the Shelf Registration Period, the
--------
Company shall take all actions reasonably necessary to enable Holders to sell
the shares of Common Stock, Warrants, Warrant Shares and Senior Secured Notes
described in this Agreement without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rules or
regulations hereafter adopted by the Commission, including, without limiting the
generality of the foregoing, filing on a timely basis all reports required to be
filed under the Exchange Act. 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. This paragraph is in addition to and not in derogation of any
rights the Holders may have under any other agreement.
6. Underwritten Registrations. If any of the Transfer Restricted Securities
--------------------------
covered by the Shelf Registration are to be sold in an underwritten registered
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected, in
the case of an underwritten offering of the shares of Common Stock constituting
Transfer Restricted Securities, by the Holders of a majority of the shares of
Common Stock to be included in such offering, and in the case of an underwritten
offering of the Senior Secured Notes constituting Transfer Restricted
Securities, by the Holders of a majority in aggregate principal amount of such
Senior Secured Notes to be included in such offering; provided, however, that
such Managing Underwriters shall be reasonably satisfactory to the Company.
No person may participate in any underwritten registered offering hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
7. "Stand-Off' Agreement. The Holders, if requested by the Company and an
---------
underwriter of Common Stock, shall agree not to sell or otherwise transfer or
dispose of any Common Stock or other capital stock of the Company held by any of
the Holders for a specified period of time (not to exceed an aggregate of ninety
(90) days in any three hundred sixty-five
12
(365) day period) following the effective date of a registration statement under
the Securities Act filed by the Company with respect to an underwritten offering
to the public.
8. Foothill Partners III, L.P.
--------------------------
The parties hereto acknowledge that it is anticipated that Foothill
Partners III, L.P. ("Foothill") will receive, in accordance with the terms of
the Plan, additional shares of Common Stock and additional Warrants
(collectively, the "Additional Securities"). Upon the issuance of any Additional
Securities to Foothill, such Additional Securities shall be deemed to be
Transfer Restricted Securities for all purposes hereunder, and Foothill shall be
entitled to the same rights and benefits, and shall be subject to the same
obligations, hereunder with respect to such Additional Securities as if such
Additional Securities had been included within the Transfer Restricted
Securities on the date hereof. Upon the issuance of any Additional Securities to
Foothill, the Company shall promptly amend any Registration Statement filed
hereunder for the purposes of including such Additional Securities therein.
9. Miscellaneous.
-------------
(a) Amendments and Waivers. 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, except by the Company and the written
consent of the Holders of a majority of the shares of Common Stock constituting
Transfer Restricted Securities or the Holders of a majority in principal amount
of the Senior Secured Notes constituting Transfer Restricted Securities, as the
case may be, affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand delivery, first-class mail, facsimile
transmission, or air courier which guarantees overnight delivery:
(i) if to a Holder of the Transfer Restricted Securities, at the most
current address given by such Holder to the Company.
(ii) if to the Initial Purchasers, at the following addresses:
The Equitable Life Assurance Society of the
United States
c/o Alliance Capital Management L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Alliance Capital Investment Opportunities Fund
c/o Alliance Capital Management L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PPM America Special Investments Fund, L.P.
c/o PPM America, Inc.
13
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
PPM America Special Investments CBO II, L.P.
c/o PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Foothill Partners III, L.P.
c/o Foothill Capital Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) if to the Company, at its address as follows:
RBX Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Xxxxxxxxx: (000) 000-0000
with a copy to:
Pachulski, Stang, Xxxxx, Xxxxx & Xxxxx P.C.
000 Xxxxx Xxxxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
14
(c) No Inconsistent Agreements. The Company has not, as of the date hereof,
--------------------------
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its Transfer Restricted Securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, each
subsequent Holder of Transfer Restricted Securities who has agreed in writing to
be bound by all of the provisions of this Agreement applicable to such Holder.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
TO BE PERFORMED ENTIRELY IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND THE HOLDERS EACH HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS, IN EACH CASE SOLELY
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(h) Severability. If any one or more of the provisions contained herein, or
------------
the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of
------------------------------
Holders of a specified number of shares of Common Stock or a specified
percentage of principal amount of Senior Secured Notes is required hereunder,
Transfer Restricted Securities held by the Company or its affiliates (other than
Holders of Transfer Restricted Securities if such Holders are deemed to be
affiliates solely by reason of their holdings of such Transfer Restricted
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required number of shares of Common Stock or
required percentage of principal amount of Senior Secured Notes.
15
(j) 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,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(k) Remedies. 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 the defense in any
action for specific performance that a remedy at law would be adequate.
[Signature Page Follows]
16
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Issuer a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the several Initial Purchasers, the Issuer and the Guarantors in accordance with
its terms.
Very truly yours,
RBX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
------------------
Title: _________________
RBX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
------------------
Title: _________________
17
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
The Equitable Life Assurance Society of the
United States
By: /s/ signature illegible
----------------------------------------
Authorized Signatory--Investment Officer
Alliance Capital Investment Opportunities Fund
By: Alliance Capital Management L.P.
By: /s/ signature illegible
-------------------------
Authorized Signatory
PPM America Special Investments Fund. L.P
By: PPM America, Inc.
By: /s/ signature illegible
-------------------------
Authorized Signatory
PPM America Special Investments CBO II, L.P.
By: PPM America, Inc.
By: /s/ signature illegible
-------------------------
Authorized Signatory
Foothill Partners III, L.P.
By: Foothill Capital Corporation
By: /s/ signature illegible
-------------------------
Authorized Signatory
18
SCHEDULE A
Number of Shares of Principal Amount of Senior
Name Common Stock Secured Notes
---- ------------ -------------
Foothill Partners III, L.P. 244,176 $6,200,000
PPM America Special Investments Fund, L.P. 85,975 $2,263,000
PPM America Special Investments CBO II, L.P. 108,300 $2,850,000
The Equitable Life Assurance Society of 149,625 $3,937,000
the United States
Alliance Capital Investment Opportunities Fund 47,500 $1,250,000
Name Number of Warrants
---- ------------------
Foothill Partners III, L.P. 11,563
19
