EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 29, 1998 (the
"Agreement"), among SUNBEAM CORPORATION, a Delaware corporation ("Laser"),
and XXXXXXX (PARENT) HOLDINGS INC., a Delaware corporation ("Parent
Holdings").
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as
of February 27, 1998 (the "Holdings Merger Agreement"), by and among Laser,
LASER ACQUISITION CORP., a Delaware corporation and wholly owned subsidiary
of Laser ("Laser Merger Sub"), CLN HOLDINGS INC., a Delaware corporation
and wholly owned subsidiary of Parent Holdings ("Holdings"), and Parent
Holdings, Laser Merger Sub will be merged immediately after the execution
of this Agreement with the surviving corporation becoming an indirect
wholly owned subsidiary of Laser, upon the terms and subject to the
conditions set forth in the Holdings Merger Agreement (the "Holdings
Merger"); and
WHEREAS, upon consummation of the Holdings Merger, the shares of
Holdings Common Stock (as defined herein) issued and outstanding
immediately prior to the effective time of the Holdings Merger shall be
converted into the right to receive an aggregate of (A) 14,099,749 fully
paid and nonassessable shares of Laser Common Stock (as defined herein) and
(B) $159,956,756 in cash, without interest hereon; and
WHEREAS, it is a condition to the obligations of Holdings to
consummate the Holdings Merger that this Agreement be duly executed and
delivered by each of the parties hereto; and
WHEREAS, in order to induce Holdings to enter into the Holdings
Merger Agreement, Laser has agreed to provide registration rights with
respect to the shares of Laser Common Stock to be issued to Parent Holdings
upon consummation of the Holdings Merger.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
The term "Affiliate" shall have the meaning ascribed to it in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
The term "Agreement" shall have the meaning ascribed to it in the
first paragraph of the Preamble.
The term "Camper" shall mean The Xxxxxxx Company, Inc., a
Delaware corporation.
The term "Effective Date" shall have the meaning ascribed to it
in Section 2.2.
The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
The term "Holdings" shall have the meaning ascribed to it in the
second paragraph of the Preamble.
The term "Holdings Common Stock" shall mean common stock, par
value $1.00 per share, of Holdings.
The term "Holdings Merger" shall have the meaning ascribed to it
in the second paragraph of the Preamble.
The term "Holdings Merger Agreement" shall have the meaning
ascribed to it in the second paragraph of the Preamble.
The term "Laser" shall have the meaning ascribed to it in the
first paragraph of the Preamble.
The term "Laser Common Stock" shall mean common stock, par value
$.01 per share, of Laser.
The term "Laser Merger Sub" shall have the meaning ascribed to it
in the second paragraph of the Preamble.
The term "Laser Offering" shall mean the sale of equity
securities of Laser, or securities convertible into or exchangeable or
exercisable for equity securities of Laser, pursuant to a registration
statement filed by Laser under the Securities Act (other than a
registration statement filed on Form S-8 or any successor form) respecting
an underwritten offering, whether primary or secondary, that is declared
effective by the SEC.
The term "Losses" shall have the meaning ascribed to it in
Section 2.6(a).
The term "Parent Holdings" shall have the meaning ascribed to it
in the first paragraph of the Preamble.
The term "Person" shall mean an individual, trustee, corporation,
partnership, business trust, limited liability company, limited liability
partnership, joint stock company, trust, unincorporated association,
union, business association, firm or other entity.
The term "Registrable Securities" shall mean the shares of Laser
Common Stock to be issued to Parent Holdings upon consummation of the
Holdings Merger and any other securities issued or issuable upon or in
respect of such securities by way of conversion, exchange, dividend, split
or combination, recapitalization, merger, consolidation, other
reorganization or otherwise. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when such
securities have been sold or otherwise transferred by Parent Holdings
pursuant to the Shelf Registration Statement or pursuant to Rule 144 under
the Securities Act.
The term "Registration Expenses" shall have the meaning ascribed
to it in Section 2.5.
The term "Rule 144" shall mean Rule 144 promulgated under the
Securities Act (or any successor rule).
The term "Rule 415 Offering" shall have the meaning ascribed to
it in Section 2.1(a).
The term "SEC" shall mean the United States Securities and
Exchange Commission.
The term "Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated
thereunder.
The term "Shelf Registration Statement" shall have the meaning
ascribed to it in Section 2.1(a).
The term "Transfer" shall mean any attempt to, directly or
indirectly, sell, transfer, pledge, assign or otherwise dispose of or
otherwise transfer any of the Registrable Securities.
ARTICLE II
REQUIRED REGISTRATION
Section 2.1 Required Registration.
(a) Form S-3. Laser shall prepare and file with the SEC a
registration statement (the "Shelf Registration Statement") on Form S-3 or
another appropriate form permitting registration of the Registrable
Securities so as to permit the resale of the Registrable Securities by
Parent Holdings pursuant to an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule) under the Securities Act (a
"Rule 415 Offering") and shall use reasonable best efforts to cause the
Shelf Registration Statement to be declared effective by the SEC on or
before the date on which any of the Registrable Securities may be
transferred by Parent Holdings pursuant to Article VII of the Holdings
Merger Agreement. Laser shall use reasonable best efforts to permit the
Shelf Registration Statement to be used by Affiliates of Camper for resales
of shares of Laser Common Stock issued to such Affiliates in the merger of
a wholly owned subsidiary of Laser with Camper; provided, however, that any
such Affiliate using the Shelf Registration Statement shall agree in
writing to be bound by all of the restrictions, limitations and obligations
of Parent Holdings contained in this Agreement.
(b) Effectiveness. Laser shall use reasonable best efforts to
keep the Shelf Registration Statement continuously effective under the
Securities Act until the date that is the earliest to occur of (i) the date
by which all Registrable Securities covered by the Shelf Registration
Statement have been sold and (ii) the second anniversary of the
consummation of the Holdings Merger.
(c) Amendments/Supplements. Laser shall amend and supplement
the Shelf Registration Statement and the prospectus contained therein if
required by the rules, regulations or instructions applicable to the
registration form used by Laser for such Shelf Registration Statement, if
required by the Securities Act.
(d) Offerings. At any time from and after the date on which the
Shelf Registration Statement is declared effective by the SEC (the
"Effective Date"), Parent Holdings, subject to the restrictions and
conditions contained herein and in the Merger Agreement, and subject
further to compliance with all applicable state and federal securities
laws, shall have the right to dispose of all or any portion of the
Registrable Securities.
Section 2.2 Holdback Agreement.
From and after the Effective Date, upon the request of Laser,
Parent Holdings shall not effect any public sale or distribution (including
sales pursuant to Rule 144) of Registrable Securities that are equity
securities of Laser, or any securities convertible into or exchangeable or
exercisable for such securities (other than any such sale or distribution
of such securities pursuant to registration of such securities on Form SB8
or any successor form) during the period commencing on the date on which
Laser commences a Laser Offering through the sixty (60)-day period
immediately following the closing date of such Laser Offering; provided,
however, that Parent Holdings shall not be obligated to comply with this
Section 2.2 on more than two (2) occasions in any twelve (12)-month period;
and provided, further, that notwithstanding anything to the contrary in
this Section 2.2 or Section 2.3, in no event shall Parent Holdings be
disabled from effecting offers or sales of Registrable Securities for more
than one-hundred-and-fifteen (115) days during any twelve (12)-month
period.
Section 2.3 Blackout Provisions.
In the event that, at any time while the Shelf Registration
Statement remains effective, Laser determines in its reasonable judgment
and in good faith that the sale of Registrable Securities would require
disclosure of material information which Laser has a bona fide business
purpose for preserving as confidential, Parent Holdings shall, upon
receiving written notice from Laser of such good faith determination,
suspend sales of the Registrable Securities for a period beginning on the
date of receipt of such notice and expiring on the earlier of (i) the date
upon which such material information is disclosed to the public or ceases
to be material or (ii) forty-five (45) days after the receipt of such
notice from Laser; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.3 on more than two (2) occasions in
any twelve (12) month period; and provided, further, that notwithstanding
anything to the contrary in this Section 2.3 or Section 2.2, in no event
shall Parent Holdings be disabled from effecting offers or sales of
Registrable Securities for more than one-hundred-and-fifteen (115) days
during any twelve (12)-month period.
Section 2.4 Registration Procedures.
(a) Procedures. In connection with the registration of the
Registrable Securities pursuant to this Agreement, Laser shall use
reasonable best efforts to effect the registration and sale of the
Registrable Securities in accordance with Parent Holdings' intended method
of disposition thereof and, in connection therewith, Laser shall:
(1) prepare and file with the SEC the Shelf
Registration Statement and use reasonable best efforts to
cause the Shelf Registration Statement to become and remain
effective in accordance with Sections 2.1(a) and (b) above;
(2) prepare and file with the SEC amendments and
supplements to the Shelf Registration Statement and the
prospectuses used in connection therewith in accordance with
Section 2.1(c) above;
(3) before filing with the SEC the Shelf
Registration Statement or prospectus or any amendments or
supplements thereto, Laser shall furnish to one (1) counsel
selected by Parent Holdings and one (1) counsel for the
underwriter or sales or placement agent, if any, in connection
therewith, drafts of all such documents proposed to be filed
and provide such counsel with a reasonable opportunity for
review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable
promptness;
(4) promptly (i) notify Parent Holdings of each of
(w) the filing and effectiveness of the Shelf Registration
Statement and each prospectus and any amendments or
supplements thereto, (x) the receipt of any comments from the
SEC or any state securities law authorities or any other
governmental authorities with respect to any such Shelf
Registration Statement or prospectus or any amendments or
supplements thereto, (y) any oral or written stop order with
respect to such registration, any suspension of the
registration or qualification of the sale of the Registrable
Securities in any jurisdiction or any initiation or
threatening of any proceedings with respect to any of the
foregoing, and (z) of the happening of any event that requires
the making of any changes in such Shelf Registration
Statement, prospectus or documents incorporated or deemed to
be incorporated therein by reference so that they will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
(ii) use reasonable best efforts to obtain the withdrawal of
any order suspending the registration or qualification (or the
effectiveness thereof) or suspending or preventing the use of
any related prospectus in any jurisdiction with respect
thereto;
(5) furnish to Parent Holdings, the underwriters or
the sales or placement agent, if any, and one (1) counsel for
each of the foregoing, a conformed copy of the Shelf
Registration Statement and each amendment and supplement
thereto (in each case, including all exhibits thereto) and
such additional number of copies of such Shelf Registration
Statement, each amendment and supplement thereto (in such
case, without such exhibits), the prospectus (including each
preliminary prospectus) included in such Shelf Registration
Statement and prospectus supplements and all exhibits thereto
and such other documents as Parent Holdings, its underwriters,
agent or such counsel may reasonably request in order to
facilitate the disposition of the Registrable Securities by
Parent Holdings;
(6) in connection with a sale of Registrable
Securities by or through an underwriter, if requested by
Parent Holdings or the managing underwriter or underwriters of
a Rule 415 Offering, subject to approval of counsel to Laser
in its reasonable judgment, promptly incorporate in a
prospectus, supplement or post-effective amendment to the
Shelf Registration Statement such information concerning
underwriters and the plan of distribution of the Registrable
Securities as such managing underwriter or underwriters or
Parent Holdings reasonably shall furnish to Laser in writing
and such request to be included therein, including, without
limitation, information with respect to the number of
Registrable Securities being sold by Parent Holdings to such
underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect
to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make
all required filings of such prospectus, supplement or post-
effective amendment as soon as reasonably practicable after
being notified of the matters to be incorporated in such
prospectus, supplement or post-effective amendment;
(7) use reasonable best efforts to register or
qualify the Registrable Securities for offer and sale under
such securities or "blue sky" laws of such jurisdictions as
Parent Holdings reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable
to enable Parent Holdings to consummate the disposition in
such jurisdictions in which the Registrable Securities are to
be sold and keep such registration or qualification in effect
for as long as the Shelf Registration Statement remains
effective under the Securities Act (provided that Laser shall
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this paragraph, (ii) subject itself to
taxation in any such jurisdiction where it would not otherwise
be subject to taxation but for this paragraph or (iii) consent
to the general service of process in any jurisdiction where it
would not otherwise be subject to general service of process
but for this paragraph);
(8) notify Parent Holdings, at any time when a
prospectus relating to the Shelf Registration Statement is
required to be delivered under the Securities Act, upon the
discovery that, or of the happening of any event as a result
of which, the Shelf Registration Statement, as then in effect,
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or any
fact necessary to make the statements therein not misleading,
and promptly prepare and furnish to Parent Holdings a
supplement or amendment to the prospectus contained in the
Shelf Registration Statement so that the Shelf Registration
Statement shall not, and such prospectus as thereafter
delivered to the purchasers of such Registrable Securities
shall not, contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(9) cause all of the Registrable Securities to be
listed on each national securities exchange and included in
each established over-the-counter market on which or through
which the Laser Common Stock is then listed or traded;
(10) in connection with a sale of Registrable
Securities by or through an underwriter, make available for
inspection by Parent Holdings, any underwriter participating
in any disposition pursuant to the Shelf Registration
Statement, and any attorney, accountant or other agent
retained by Parent Holdings or its underwriter, all financial
and other records, pertinent corporate documents and
properties of Laser as shall be reasonably necessary to enable
either of them to exercise their due diligence responsibility,
and cause Laser's officers, directors, employees, attorneys
and independent accountants to supply all information
reasonably requested by Parent Holdings, its underwriters,
attorneys, accountants or agents in connection with the Shelf
Registration Statement; information which Laser determines, in
good faith, to be confidential shall not be disclosed by such
persons unless (i) the disclosure of such information is
required by applicable federal securities laws or is necessary
to avoid or correct a misstatement or omission in such Shelf
Registration Statement or (ii) the release of such information
is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction; Parent Holdings agrees, on its own
behalf and on behalf of all of its underwriters, accountants,
attorneys and agents, that the information obtained by any of
them as a result of such inspections shall be deemed
confidential unless and until such is made generally available
to the public; Parent Holdings further agrees, on its own
behalf and on behalf of all of its underwriters, accountants,
attorneys and agents, that Parent Holdings will, upon learning
that disclosure of such information is sought in a court of
competent jurisdiction, give notice to Laser and allow Laser,
at Parent Holdings' expense, to undertake appropriate action
to prevent disclosure of the information deemed confidential;
nothing contained herein shall require Laser to waive any
attorney-client privilege or disclose attorney work product;
(11) use reasonable best efforts to comply with all
applicable laws related to the Shelf Registration Statement
and offering and sale of securities and all applicable rules
and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act
and the Exchange Act, and the rules and regulations
promulgated by the SEC) and make generally available to its
security holders as soon as practicable (but in any event not
later than fifteen (15) months after the effectiveness of the
Shelf Registration Statement) an earnings statement of Laser
and its subsidiaries complying with Section 11(a) of the
Securities Act;
(12) in connection with a sale of Registrable
Securities by or through an underwriter, use reasonable best
efforts to furnish to Parent Holdings a signed counterpart of
(x) an opinion of counsel for Laser (including a "Rule 10b-5"
opinion) and (y) a "comfort" letter signed by the independent
public accountants who have certified Laser's financial
statements included or incorporated by reference in such
registration statement, covering such matters with respect to
such registration statement and, in the case of the
accountants' comfort letter, with respect to events subsequent
to the date of such financial statements as are customarily
covered in opinions of issuer's counsel and in accountants'
comfort letters delivered to the underwriters in underwritten
public offerings of securities for the account of, or on
behalf of, an issuer of common stock, such opinion and comfort
letters to be dated the date that such opinion and comfort
letters are customarily dated in such transactions; and
(13) take other actions as Parent Holdings or the
underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of the Registrable Securities.
(b) Further Agreements. Without limiting any of the
foregoing, in the event that the sale of Registrable Securities is
to be made by or through an underwriter, Laser shall enter into an
underwriting agreement with a managing underwriter or underwriters
selected by Parent Holdings containing representations, warranties,
indemnities and agreements customarily included (but not
inconsistent with the agreements contained herein) by an issuer of
common stock in underwriting agreements with respect to offerings
of common stock for the account of, or on behalf of, such issuers;
provided, however, that Parent Holdings shall not utilize the Shelf
Registration Statement for more than two (2) underwritten offerings
during the term of this Agreement. In connection with the sale of
Registrable Securities hereunder, Parent Holdings may, at its
option, require that any and all representations and warranties by,
and the other agreements of, Laser to or for the benefit of such
underwriter or underwriters (or which would be made to or for the
benefit of such an underwriter or underwriter if such sale of
Registrable Securities were pursuant to a customary underwritten
offering) be made to and for the benefit of Parent Holdings and
that any or all of the conditions precedent to the obligations of
such underwriter or underwriters (or which would be so for the
benefit of such underwriter or underwriters under a customary
underwriting agreement) be conditions precedent to the obligations
of Parent Holdings in connection with the disposition of Parent
Holdings' securities pursuant to the terms hereof. In connection
with any offering of Registrable Securities registered pursuant to
this Agreement, Laser shall, upon receipt of duly endorsed
certificates representing the Registrable Securities, (i) furnish
to the underwriter, if any (or, if no underwriter, Parent
Holdings), unlegended certificates representing ownership of
Registrable Securities being sold, in such denominations as
requested, and (ii) instruct any transfer agent and registrar of
the Registrable Securities to release any stop transfer order with
respect thereto.
Parent Holdings agrees that upon receipt of any notice
from Laser of the happening of any event of the kind described in
paragraph (8) of Section 2.4(a), Parent Holdings shall forthwith
discontinue its disposition of Registrable Securities pursuant to
the Shelf Registration Statement and prospectus relating thereto
until Parent Holdings' receipt of the copies of the supplemented or
amended prospectus contemplated by paragraph (8) of Section 2.4(a)
and, if so directed by Laser, deliver to Laser all copies, other
than permanent file copies, then in Parent Holdings' possession of
the prospectus current at the time of receipt of such notice
relating to the Registrable Securities.
Section 2.5 Registration Expenses.
All expenses incidental to Laser's performance of, or
compliance with, its obligations under this Agreement including,
without limitation, all registration and filing fees, all fees and
expenses of compliance with securities and "blue sky" laws
(including, without limitation, the fees and expenses of counsel
for underwriters or placement or sales agents in connection
therewith), all printing and copying expenses, all messenger and
delivery expenses, all fees and expenses of underwriters and sales
and placement agents in connection therewith (excluding
underwriters' discounts and commissions and the fees and expenses
of counsel therefor), all fees and expenses of Laser's independent
certified public accountants and counsel (including, without
limitation, with respect to "comfort" letters and opinions) and
other Persons retained by Laser in connection therewith
(collectively, the "Registration Expenses"), shall be borne by
Laser. Laser shall not be responsible for and shall not pay
underwriters' discounts and commissions and the fees and expenses
of counsel therefor and fees and expenses of legal counsel,
accountants, agents or experts retained by Parent Holdings in
connection with the sale of the Registrable Securities. Laser will
pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties, the expense of any annual audit and the
expense of any liability insurance) and the expenses and fees for
listing the Registrable Securities on the New York Stock Exchange
or, if the Laser Common Stock is then not so listed, included in an
established over-the-counter market.
Section 2.6 Indemnification.
(a) By Laser. Laser agrees to indemnify Parent Holdings
and Parent Holdings' directors, officers, employees and agents and
each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) Laser or such
other indemnified Person to the fullest extent lawful, against all
losses, claims, damages, liabilities, judgments, and reasonable
costs (including, without limitation, reasonable attorneys' fees
and expenses) (collectively, the "Losses") as incurred, caused by,
arising out of, resulting from or relating to any untrue or alleged
untrue statement of material fact contained in the Shelf
Registration Statement, any prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as the same are based upon any information furnished in
writing to Laser by Parent Holdings or its underwriter or other
agent expressly for use therein or by Parent Holdings' failure to
deliver, or its underwriter's or other agent's failure to deliver,
a copy of the Shelf Registration Statement or prospectus or any
amendments or supplements thereto after Laser has furnished Parent
Holdings with the requested number of copies of the same. In
connection with an underwritten offering and without limiting any
of Laser's other obligations under this Agreement, Laser shall
indemnify such underwriters, their officers, directors, employees
and agents and each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act)
such underwriters or such other indemnified Person to the same
extent as provided above with respect to the indemnification of
Parent Holdings.
(b) By Parent Holdings. In connection with the Shelf
Registration Statement, Parent Holdings shall furnish to Laser in
writing information regarding Parent Holdings' ownership of
Registrable Securities and Parent Holdings' intended method of
distribution thereof and shall indemnify Laser, its directors,
officers, employees and agents and each Person who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) Laser or such other indemnified Person against
all Losses caused by, arising out of, resulting from or relating to
any untrue or alleged untrue statement of material fact contained
in the Shelf Registration Statement, any prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission or alleged untrue statement or omission (i) is caused by,
arises out of, results from or relates to, or is alleged to be
omitted from, such information so furnished in writing by Parent
Holdings or (ii) arises out of or results from Parent Holdings'
failure to deliver, or Parent Holdings' underwriter's or other
agent's failure to deliver, a copy of the Shelf Registration
Statement or prospectus or any amendments or supplements thereto
after Laser has furnished Parent Holdings with the requested number
of copies of the same. In connection with an underwritten offering
and without limiting any of Parent Holdings' other obligations
under this Agreement, (i) Parent Holdings shall indemnify such
underwriters, their officers, directors, employees and agents and
each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) such underwriters
or such other indemnified Person to the same extent as provided
above with respect to the indemnification of Laser and (ii) Parent
Holdings shall cause each underwriter of an underwritten offering
to indemnify Laser, its directors, officers, employees and agents
and each Person who controls (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) Laser or such
indemnified Person, on terms and subject to conditions customary
for such indemnification by nationally known investment banking
firms, against all Losses caused by, arising out of, resulting from
or relating to any untrue or alleged untrue statement of material
fact contained in the Shelf Registration Statement, any prospectus
or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission or alleged untrue statement or omission (x)
is caused by, arises out of or results from information furnished
in writing by such underwriter specifically for inclusion in the
Shelf Registration Statement or (y) arises out of or results from
such underwriter's failure to delivery a copy of the Shelf
Registration Statement or prospectus or any amendments or
supplements thereto after Laser has furnished such underwriter with
the requested number of copies of the same.
(c) Notice. Any Person entitled to indemnification
hereunder shall give prompt written notice to the indemnifying
party of any claim with respect to which it seeks indemnification;
provided, however, the failure to give such notice shall not
release the indemnifying party from its obligation, except to the
extent that the indemnifying party has been prejudiced by such
failure to provide such notice.
(d) Defense of Actions. In any case in which any such
action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying
party shall 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, the indemnifying party
shall not (so long as it shall continue to have the right to
defend, contest, litigate and settle the matter in question in
accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, supervision and monitoring
(unless such indemnified party reasonably objects to such
assumption on the grounds that there may be defenses available to
it which are different from or in addition to the defenses
available to such indemnifying party, in which event the
indemnified party shall be reimbursed by the indemnifying party for
the reasonable expenses incurred in connection with retaining one
separate legal counsel). An indemnifying party shall not be liable
for any settlement of an action or claim effected without its
consent. The indemnifying party shall lose its right to defend,
contest, litigate and settle a matter if it shall fail to
diligently contest such matter (except to the extent settled in
accordance with the next following sentence). No matter shall be
settled by an indemnifying party without the consent of the
indemnified party unless such settlement contains a full and
unconditional release of the indemnified party.
(e) Survival. The indemnification provided for under
this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified Person
and will survive the transfer of the Registrable Securities.
(f) Contribution. If recovery is not available under
the foregoing indemnification provisions for any reason or reasons
other than as specified therein, any Person who otherwise would be
entitled to indemnification by the terms thereof shall nevertheless
be entitled to contribution with respect to any Losses with respect
to which such Person would be entitled to such indemnification but
for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there
shall be considered the Persons' relative knowledge and access to
information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement
or omission, and other equitable considerations appropriate under
the circumstances. It is hereby agreed that it would not
necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. 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 found guilty of such fraudulent
misrepresentation.
ARTICLE III
TRANSFERS OF REGISTRABLE SECURITIES
Section 3.1 Transferability of Registrable Securities
Parent Holdings may not Transfer the Registrable
Securities except in accordance with Article VII of the Holdings
Merger Agreement and under the following circumstances:
(a) pursuant to Rule 144;
(b) pursuant to the Shelf Registration Statement; or
(c) upon receipt by Laser of an opinion of counsel,
reasonably satisfactory to Laser, that such Transfer is exempt from
registration under the Securities Act.
Section 3.2 Restrictive Legends.
Parent Holdings hereby acknowledges and agrees that,
during the term of this Agreement, each of the certificates
representing Registrable Securities shall be subject to stop
transfer instructions and shall include the legend set forth in
Section 7.2 of the Holdings Merger Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Effectiveness of Agreement.
The provisions of this Agreement shall be effective as of
the date hereof.
Section 4.2 Recapitalization.
In the event that any capital stock or other securities
are issued as a dividend or distribution on, in respect of, in
exchange for, or in substitution of, any Registrable Securities,
such securities shall be deemed to be Registrable Securities for
all purposes under this Agreement.
Section 4.3 Notices.
All notices, requests, demands, waivers and other
communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally, by mail (certified or registered
mail, return receipt requested), by reputable overnight courier or
by facsimile transmission (receipt of which is confirmed):
(a) If to Laser, to:
Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Parent Holdings, to:
Xxxxxxx (Parent) Holdings Inc.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx #000-X
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person or address as any party shall specify by
notice in writing, given in accordance with this Section 4.3, to
the other parties hereto. All such notices, requests, demands,
waivers and communications shall be deemed to have been given on
the date on which so hand-delivered, on the third business day
following the date on which so mailed, on the next business day
following the date on which delivered to such overnight courier and
on the date of such facsimile transmission and confirmation, except
for a notice of change of person or address, which shall be
effective only upon receipt thereof.
Section 4.4 Entire Agreement.
This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof. This
Agreement supersedes all prior agreements and understandings, oral
and written, with respect to its subject matter.
Section 4.5 Binding Effect; Assignment.
This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, successors and permitted
assigns, but, except as expressly contemplated herein, neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, directly or indirectly, by Laser or Parent
Holdings without the prior written consent of the other; provided,
that in connection with a bona fide pledge of any Registrable
Securities to secure indebtedness or other obligations, Parent
Holdings may assign its rights, interests and obligations hereunder
to the beneficiary of such pledge. Upon any permitted assignment
(other than in connection with any such bona fide pledge), this
Agreement shall be amended to substitute the assignee as a party
hereto in a writing reasonably acceptable to the other party.
Section 4.6 Amendment, Modification and Waiver.
This Agreement may be amended, modified or supplemented
at any time by written agreement of the parties hereto. Any
failure by Parent Holdings, on the one hand, or Laser, on the other
hand, to comply with any term or provision of this Agreement may be
waived by Laser or Parent Holdings, respectively, at any time by an
instrument in writing signed by or on behalf of Laser and Parent
Holdings, but such waiver or failure to insist upon strict
compliance with such term or provision shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other
failure to comply.
Section 4.7 Third-Party Beneficiaries.
Except with respect to Affiliates which have agreed to be
bound in accordance with Section 2.1(a), this Agreement is not
intended, and shall not be deemed, to confer upon or give any
person except the parties hereto and their respective successors
and permitted assigns, any remedy, claim, liability, reimbursement,
cause of action or other right under or by reason of this
Agreement.
Section 4.8 Counterparts.
This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 4.9 Interpretation.
The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of
the agreement of the parties and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 4.10 Governing Law.
This Agreement shall be governed by the laws of the State
of New York, without regard to the principles of conflicts of law
thereof.
Section 4.11 Termination; Restrictive Legend.
Subject to the provisions of Section 2.1(b) hereof, this
Agreement shall terminate on the second anniversary of consummation
of the Merger; provided, however, that the provisions of Section
2.6 hereof shall survive termination of this Agreement. It is
understood and agreed that any restrictive legends set forth on any
Registrable Securities shall be removed by delivery of substitute
certificates without such legends and such Registrable Securities
shall no longer be subject to the terms of this Agreement, upon the
resale of such Registrable Securities in accordance with the terms
of this Agreement or, if not theretofore removed, on the third
anniversary of the date hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned hereby agree to be
bound by the terms and provisions of this Registration Rights
Agreement as of the date first above written.
SUNBEAM CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name:
Title:
XXXXXXX (PARENT) HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
___________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
