Exhibit 99.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of October 7,
1991, between Polaroid Corporation, a Delaware corporation
(the "Company"), Corporate Partners, L.P., a Delaware
limited partnership ("Corporate Partners"), Corporate
Offshore Partners, L.P., a Bermuda limited partnership
("Corporate Offshore Partners"), and the State Board of
Administration of Florida, a body corporate organized under
the constitution of the State of Florida solely in its
capacity as a managed account under an Investment Management
Agreement with Corporate Advisors, L.P. ("Florida";
Corporate Partners, Corporate Offshore Partners and Florida
being referred to collectively as the "Investors").
1. Background. Pursuant to an Exchange Agreement dated as of
the date hereof, between the Company and the Investors (the "Exchange
Agreement"), the Company has issued to Corporate Partners, Corporate
Offshore Partners and Florida $140,000,000 aggregate principal amount of
the Company's 8% Subordinated Convertible Debentures Due 2001 (the
"Subordinated Debentures"). The Subordinated Debentures are convertible
into shares of Common Stock, par value $1.00 per share, of the Company (the
"Common Stock"). Additionally, under certain circumstances described in the
Subordinated Debentures, Subordinated Debentures will be exchanged for
shares of the Company's Preferred Stock, par value $1.00 per share. Such
shares of Preferred Stock, if issued, will be convertible into shares of
Common Stock.
2. Registration Under Securities Act
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2.1. Registration on Request. (a) Request. Subject to Section
2.9 hereof, upon the written request of one or more holders (the
"Initiating Holders") of Registrable Securities representing not less than
50% of the Registrable Securities that the Company effect the registration
under the Securities Act of all or part of such Initiating Holders'
Registrable Securities, the Company will promptly give written notice of
such requested registration to all registered holders of Registrable
Securities, and thereupon the Company will use its best efforts to effect
the registration under the Securities Act, including by means of a shelf
registration pursuant to Rule 415 under the Securities Act if so requested
in such request and if the Company is then eligible to use such a
registration, of
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(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders, and
ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof (such holders
together with the Initiating Holders are hereinafter referred
to as the "Selling Holders") by written request given to the
Company within 30 days after the giving of such written notice
by the Company, all to the extent requisite to permit the
disposition of the Registrable Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.1 in
connection with an underwritten offering by one or more
Selling Holders of Registrable Securities, no securities other
than Registrable Securities shall be included among the
securities covered by such registration unless (a) the
managing underwriter of such offering shall have advised each
Selling Holder of Registrable Securities to be covered by such
registration in writing that the inclusion of such other
securities would not adversely affect such offering or
(b) the Selling Holders of not less than 66-2/3% of
all Registrable Securities to be covered by such registration
shall have consented in writing to the inclusion of such other
securities.
(c) Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of
the Commission as shall be selected by the Company and as shall
be reasonably acceptable to the Selling Holders of more than
50% of the Registrable Securities so to be registered. The
Company agrees to include in any such registration statement
all information which, in the opinion of counsel to
the Selling Holders of Registrable Securities so to be
registered and-counsel to the Company, is required to be
included.
(d) Expenses. The Company will pay the Registration Expenses in
connection with any registration requested pursuant to this
Section 2.1.
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(e) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been
effected (i) unless a registration statement with respect
thereto has become effective, (ii) if after it has become
effective, such registration is interfered with
by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any
reason not attributable to the Selling Holders and has not
thereafter become effective, or (iii) if the conditions to
closing specified in the underwriting agreement, if any,
entered into in connection with such registration are not
satisfied or waived, other than by reason of a failure
on the part of the Selling Holders.
(f) Selection of Underwriters. The underwriter or underwriters
of each underwritten offering of the Registrable Securities so
to be registered shall be selected by the mutual agreement of
the Company and the Selling Holders of more than 50% of the
Registrable Securities so to be registered.
(g) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the
Company in writing (with a copy to each Selling Holder of
Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in
such registration exceeds the number which can be sold in such
offering within a price range acceptable to the Selling
Holders of 66-2/3% of the Registrable Securities requested to
be included in such registration, the Company will include in
such registration, to the extent of the number which the
Company is so advised can be sold in such offering, Registrable
Securities requested to be included in such registration,
pro rata among the Selling Holders requesting such
registration on the basis of the percentage of the Registrable
Securities of such Selling Holders requested so to be
registered. In connection with any such registration to which
this Section 2.1(g) is applicable, no securities other than
Registrable Securities shall be covered by such
registration.
(h) Limitations on Registration on Request. Notwithstanding
anything in this Section 2.1 to the contrary, in no event will
the Company be required to effect, in the aggregate, without
regard to the holder of Registrable Securities making such
request, more than three registrations pursuant to
this Section 2.1.
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2.2 Incidental Registration. (a) Right to Include Registrable
Securities. If the Company at any time proposes to register any of its
securities under the Securities Act by registration on Forms X-0, X-0 or
S-3 or any successor or similar form(s) (except registrations on such forms
or similar form(s) solely for registration of securities in connection with
an employee benefit plan or dividend reinvestment plan or a merger or
consolidation), whether or not for sale for its own account, it will,
subject to Section 2.9 hereof, each such time give prompt written notice to
all registered holders of Registrable Securities of its intention to do so
and of such holders' rights under this Section 2.2. Upon the written
request of any such holder (a "Requesting Holder") made as promptly as
practicable and in any event within 15 days after the receipt of any such
notice (5 days if the Company states in such written notice or gives
telephonic notice to all registered holders of Registrable Securities, with
written confirmation to follow promptly thereafter, stating that (i) such
registration will be on Form S-3 and (ii) such shorter period of time is
required because of a planned filing date) (which request shall specify the
Registrable Securities intended to be disposed of by such Requesting
Holder), the Company will, subject to Section 2.9 hereof, use its best
efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register
by the Requesting Holders thereof, provided that if, at any time after
giving written notice of its intention to register any securities and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Requesting
Holder of Registrable Securities and (i) in the case of a determination not
to register, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from
any obligation of the Company to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any
holder or holders of Registrable Securities entitled to do so to request
that such registration be effected as a registration under Section 2.1, and
(ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same
period as the delay in registering such other securities. No registration
effected under this Section 2.2 shall relieve
the Company of its obligation to effect any registration upon request under
Section 2.1. Any such registration of Subordinated Debentures shall be for
not less than $25 million principal amount, in the aggregate; and any such
registration of New Preferred Shares shall be for not less than a number of
New Preferred Shares for which the Liquidation Preference (as defined in
the Certificate of Designation therefor) at the time would be $25 million
or more in the aggregate. The Company will pay all Registration Expenses
in connection with registration of Registrable Securities requested
pursuant to this Section 2.2.
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(b) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company by letter
of its belief that the number or type of Registrable Securities requested
to be included in such registration would materially adversely affect such
offering, then the Company will include in such registration, to the extent
of the number and type which the Company is so advised can be sold in (or
during the time of) such offering, first, all securities proposed by the
Company to be sold for its own account, second, such Registrable Securities
and other securities of the Company ranking senior to or on a parity with,
if Subordinated Debentures are requested to be included, the Subordinated
Debentures or, if New Preferred Shares are requested to be included, New
Preferred Shares (in each case, the "Senior or Parity Securities") or
securities of the Company issued upon exercise, conversion or exchange of
such Senior or Parity Securities ("Other Securities") requested to be
included in such registration, such Registrable Securities, Senior or
Parity Securities and Other Securities to be included in such registration
pro rata on the basis of the estimated gross proceeds from the sale
thereof, and third, any other securities of the Company requested to be
included in such registration.
2.3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2.1
and 2.2, the Company will as expeditiously as possible:
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(i) prepare and (within 90 days after the end of the period
within which requests for registration may be given to the Company or in
any event as soon thereafter as practicable) file with the Commission the
requisite registration statement to effect such registration and thereafter
use its best efforts to cause such registration statement to become
effective; provided, however, that the Company may discontinue any
registration of its securities which are not Registrable Securities (and,
under the circumstances specified in section 2.2(a), its securities which
are Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement for such period as shall be required for the
disposition of all of such Registrable Securities, provided that except
with respect to any such registration statement filed pursuant to Rule 415
under the Securities Act, such period need not exceed 120 days;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request;
(iv) use its best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such States of
the United States of America where an exemption is not available and as the
sellers of Registrable Securities covered by such registration statement
shall reasonably request, (y) to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and
(z) to take any other action which may be reasonably necessary or advisable
to enable such sellers to consummate the disposition in such jurisdictions
of the securities to be sold by such sellers, except that the Company shall
not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified or to
consent to general service of process in any such jurisdiction;
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(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other Federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company and counsel to the seller or sellers of Registrable Securities
to enable the seller or sellers thereof to consummate the disposition
of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities and the
Significant Investors a signed counterpart of
(x) an opinion of counsel for the Company, which may be
the head in-house counsel of the Company, and
(y) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial
statements included or incorporated by reference in such
registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) 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 (and dated the dates such
opinions and comfort letters are customarily dated) and, in the case
of the accountants' comfort letter, such other financial matters,,
and, in the case of the legal opinion, such other legal matters, as
the sellers of more than 50% of the Registrable Securities covered by
such registration statement, the underwriters or the Significant
Investors may reasonably request;
(vii) notify each seller of Registrable Securities covered by such
registration statement and the Significant Investors, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as
a result of which, the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of any such
seller or Significant Investor promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
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(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months, but
not more than eighteen months, beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act, and promptly furnish to each such seller of
Registrable Securities and to the Significant Investors a copy of any
amendment or supplement to such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all
Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration;
(x) use its best efforts to list all Registrable Securities
covered by such registration statement on any national securities
exchange on which Registrable Securities of the same class and, if
applicable, series, covered by such registration statement are then
listed; and
(xi) consider in good faith any request by holders of any
Subordinated Debentures or New Preferred Shares that are Selling
Holders to list the Subordinated Debentures or New Preferred Shares to
be covered by such registration statement on a national securities
exchange identified by such Selling Holders and, if such request is
approved by the Company, use its best efforts to list such securities
on such exchange to the extent it is practicable to do so as promptly
as is practicable; and
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(xii) to the extent any such registration relates to the
Subordinated Debentures, (A) prepare and enter into an indenture with
a trustee, which shall be reasonably satisfactory to the Company and
the Selling Holders, not later than the date on which the applicable
registration statement becomes effective, (B) cooperate with the
trustee and the holders of Debentures to incorporate the terms of the
Subordinated Debentures in the indenture and effect such changes to
the indenture as may be required for the indenture to be qualified
under the Trust Indenture Act, and (C) execute, and use its best efforts
to cause the trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required
to be filed with the Commission to enable the indenture to be so
qualified in a timely manner. The indenture shall be in a form
reasonably satisfactory to the Company, the Selling Holders and
the Investors (so long as the Investors are holders of Subordinated
Debentures.)
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that upon receipt of any notice from the
Company of the happening of any event of the kind described in subdivision
(vii) of this Section 2.3, such holder will forthwith discontinue such
holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (vii) of this Section 2.3 and, if so directed
by the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession
of the prospectus relating to such Registrable Securities that is to be so
supplemented or amended at the time of receipt of such notice.
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2.4. Underwritten Offerings. (a) Requested Underwritten
Offerings. If requested by the underwriters for any underwritten offering
by holders of Registrable Securities pursuant to a registration requested
under Section 2.1, the Company will use reasonable efforts to enter into an
underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the
Company, each such holder and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in Section
2.7. The holders of the Registrable Securities proposed to be distributed
by such underwriters will cooperate with the Company in the negotiation of
the underwriting agreement. Such holders of Registrable Securities shall
be parties to such underwriting agreement and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with
the Company other than representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's
intended method of distribution and any other representation required by
law.
(b) Incidental Underwritten Offerings. If the Company proposes
to register any of its securities under the Securities Act as contemplated
by Section 2.2 and such securities are to be distributed by or through one
or more underwriters, the Company will, subject to Section 2.9 hereof, if
requested by any Requesting Holder of Registrable Securities use its best
efforts to arrange for such under writers to include all the Registrable
Securities to be offered and sold by such Requesting Holder among the
securities of the Company to be distributed by such underwriters. The
holders of Registrable Securities to be distributed by such underwriters
shall be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such holders of Registrable Securities and that
any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of such holders of Registrable Securities. Any such
Requesting Holder of Registrable Securities shall not be required to make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Requesting Holder, such Requesting Holder's Registrable Securities and
such Requesting Holder's intended method of distribution or as otherwise
required by law. Notwithstanding the foregoing provisions of this Section
2.4(b), the Company need not include any Registrable Securities of any such
Requesting Holder in an underwritten offering of the Company's securities
if the inclusion of such Registrable Securities, in the opinion of the
managing underwriter for such offering by the Company, might adversely
affect such offering by the Company.
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2.5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement the Company will give the holders
of Registrable Securities registered under such registration statement,
their underwriters, if any, the Significant Investors, and their respective
counsel and accountants the opportunity to participate in the preparation
of such registration statement, each prospectus included therein or filed
with the Commission, and, to the extent practicable, each amendment thereof
or supplement thereto, and give each of them such access to its books and
records (to the extent customarily given to the underwriters of the
Company's securities), such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
such holders', such underwriters' and such Significant Investors'
respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations
Under Registration Covenants. The obligations of the Company to use its
best efforts to cause the Registrable Securities to be registered under the
Securities Act are subject to each of the following limitations, conditions
and qualifications:
(a) The Company shall not be obligated to file any registration
statement pursuant to Section 2.1 hereof at any time if the Company would
be required to include financial statements audited as of any date other
than the end of its fiscal year.
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(b) The Company shall be entitled to postpone for a reasonable
period of time (but not exceeding 90 days) the filing of any registration
statement otherwise required to be prepared and filed by it pursuant to
Section 2.1 if the Company determines, in its reasonable judgment, that
such registration and offering would interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving the Company or any of its Affiliates or would require premature
disclosure thereof and promptly gives the holders of Registrable Securities
requesting registration thereof pursuant to Section 2.1 written notice of
such determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company
shall so postpone the filing of a registration statement, such holders of
Registrable Securities requesting registration thereof pursuant to Section
2.1 shall have the right to withdraw the request for registration by giving
written notice to the Company within 30 days after receipt of the notice of
postponement and, in the event of such withdrawal, such request shall not
be counted for purposes of the requests for registration to which holders
of Registrable Securities are entitled pursuant to Section 2.1 hereof.
(c) Holders of Registrable Securities shall use all reasonable
efforts to effect as wide a distribution of such Registrable Securities as
reasonably practicable, and in no event shall any sale of Registrable
Securities be made knowingly to any Person (including its Affiliates and
any Person or entities which are to the knowledge of such holders (or to
the knowledge of any underwriter for such holders) part of any 13D Group
(as defined in the Exchange Agreement) which includes such purchaser or any
of its Affiliates) that, after giving effect to such sale, would
Beneficially Own (as defined in the Exchange Agreement) Voting Securities
(as defined in the Exchange Agreement) representing more than 5% of the
Total Voting Power (as defined in the Exchange Agreement). The holders of
such Registrable Securities shall secure the agreement of their underwriter
or underwriters, if any, for such offering to comply with the foregoing.
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2.7. Indemnification. (a) Indemnification by the Company. In
the event of any registration of any securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and hold
harmless, (i) in the case of any registration statement filed pursuant to
Section 2.1 or 2.2, each seller of any Registrable Securities covered by
such registration statement, its directors, officers, partners, agents and
affiliates and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act, and (ii) in the case of any registration statement of the
Company, each Significant Investor, its directors, officers, partners,
agents and affiliates and each other Person, if any, who controls such
Significant Investor within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
seller or Significant Investor or any such director, officer, partner,
agent or affiliate or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in light
of the circumstances in which they were made not misleading, and the
Company will reimburse such seller, each such Significant Investor and each
such director, officer, partner, agent or affiliate, underwriter and
controlling Person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on
behalf of such seller or underwriter, as the case may be, specifically
stating that it is for use in the preparation thereof and provided further
that the Company shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
such seller, Significant Investor or any such director, officer, partner,
agent or affiliate or controlling person and shall survive the transfer of
such securities by such seller.
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(b) Indemnification by the Sellers. As a condition to including
any Registrable Securities in any registration statement, the Company shall
have received an undertaking satisfactory to it from the prospective seller
of such Registrable Securities to indemnify and hold harm less (in the same
manner and to the same extent as set forth in subdivision (a) of this
Section 2.7) the Company, and each director of the Company, each officer of
the Company and each other Person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of such securities by such seller.
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(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.7, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.7, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party the indemnifying party shall be
entitled to participate in and, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the
defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, 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 be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written
consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to an
indemnified party under subparagraph (a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under subparagraph (a) or (b) hereof,
the indemnified party and the indemnifying party under subparagraph (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reason ably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company, any Significant
Investor and the prospective sellers of Registrable Securities covered by
the registration statement which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, any Significant
Investor and such prospective sellers from the offering of the securities
covered by such registration statement. 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. Such prospective sellers'
obligations to contribute as provided in this subparagraph (d) are several
in proportion to the relative value of their respective Registrable
Securities covered by such registration statement and not joint. In
addition, no Person shall be obligated to contribute hereunder any amounts
in payment for any settlement of any action or claim effected without such
Person's consent, which consent shall not be unreasonably withheld.
16
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 2.7
(with appropriate modifications) shall be given by the Company and each
seller of Registrable Securities with respect to any required registration
or other qualification of securities under any Federal or state law or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
2.8. Adjustments Affecting Registrable Securities. (a) Prior
to any registration of any shares of New Preferred Shares, if the lowest
"Liquidation Preference" per New Preferred Share set forth in the
Certificate of Designation therefor is greater than $50, subject to the
availability of authorized but unissued New Preferred Shares, the Company
will use its best efforts to effect a stock-split in respect of the New
Preferred Shares to the extent reasonably requested by the holders of more
than 50% of the New Preferred Shares for the purpose of enhancing the
marketability of the New Preferred Shares.
(b) The Company will not effect or permit to occur, except
pursuant to Section 2.8(a), any combination or subdivision of Registrable
Securities which would materially adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in
any registration of its securities contemplated by this Section 2 or the
marketability of such Registrable Securities under any such registration.
17
2.9. Conditions and Limitations on Registrations of Registrable
Securities. (a) The Company shall not be required to effect any
registration of Registrable Securities pursuant to Section 2 hereof until
after January 30, 1993; provided, however, that the Company shall be
required at any time to effect registration pursuant to Section 2 hereof of
Debenture Conversion Shares issued to the Investors upon conversion of any
Subordinated Debentures called for redemption by the Company pursuant to
the terms of the Subordinated Debentures or Preferred Conversion Shares
issued to the Investors upon conversion of any New Preferred Shares called
for redemption by the Company pursuant to the terms of the New Preferred
Shares.
(b) The Company shall not be required to effect any registration
of Registrable Securities pursuant to Section 2.2 hereof if it shall
deliver to the holder or holders requesting such registration an opinion of
counsel (which opinion and counsel shall be reasonably satisfactory to such
holder or holders) to the effect that the Registrable Securities requested
to be registered may be sold by such holder without registration under the
Securities Act.
2.10. Certain Rights of Investors If Named in a Registration
Statement. If any statement contained in a registration statement under
the Securities Act refers to any of the Investors by name or otherwise as
the holder of any securities of the Company, then such Investor shall have
the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Investor and the Company, to the
effect that the holding by such Investor of such securities does not
necessarily make such Investor a "controlling person" of the Company within
the meaning of the Securities Act and is not to be construed as a
recommendation by such Investor of the investment quality of the Company's
debt or equity securities covered thereby and that such holding does not
imply that such Investor will assist in meeting any future financial
requirements of the Company or (ii) in the event that such reference to
such Investor by name or otherwise is not required by the Securities Act or
any of the rules and regulations promulgated thereunder, the deletion of
the reference to such Investor.
18
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" has the meaning set forth in the Exchange Agreement.
"Commission" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Debenture Conversion Shares" means the shares of Common Stock
issuable upon conversion of Subordinated Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include a reference to the comparable section, if any, of
any such similar Federal statute.
"Initiating Holder" is defined in Section 2.1.
"New Preferred Shares" means shares of the
Company's Preferred Stock issuable in exchange for Subordinated Debentures.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political
subdivision thereof, or a governmental agency.
"Preferred Conversion Shares" means the shares of Common Stock
issuable upon conversion of shares of New
Preferred Shares.
19
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration, filing and NASD fees, all fees and expenses
of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of "cold comfort" letters
required by or incident to such performance and compliance, any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, any fees and disbursements of trustees customarily paid by
issuers or sellers of securities in connection with qualifying an indenture
under the Trust Indenture Act and, in the case of a registration pursuant
to Section 2.1, the reasonable fees and expenses of one counsel to any of
the Selling Holders (selected by Selling Holders representing at least 50%
of the Registrable Securities covered by such registration); provided,
however, that Registration Expenses shall exclude and the sellers of the
Registrable Securities being registered shall pay the fees and
disbursements of counsel and accountants to such sellers, underwriters'
fees and expenses and underwriting discounts and commissions and transfer
taxes in respect of the Registrable Securities being registered, except
that in the case of a registration pursuant to Section 2.1, the Company
shall pay the reasonable fees and expenses of one counsel to the Selling
Holders (selected by Selling Holders representing at least 50% of the
Registrable Securities covered by such registration).
"Registrable Securities" means (i) the Subordinated Debentures,
(ii) Debenture Conversion Shares, (iii) New Preferred Shares and (iv)
Preferred Conversion Shares, and in each case, any Related Registrable
Securities. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) they shall
have been sold as permitted by Rule 144 (or any successor provision) under
the Securities Act, (c) they shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent public distribution
of them shall not require registration of them under the Securities Act, or
(d) they shall have ceased to be outstanding.
"Related Registrable Securities" means with respect to the
Subordinated Debentures, Debenture Conversion Shares, New Preferred Shares
or Preferred Conversion Shares, any securities of the Company (including,
without limitation, the Rights) issued or issuable with respect to any
Subordinated Debentures, Debenture Conversion Shares, New Preferred Shares
or Preferred Conversion Shares, as the case may be, by way of a dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise.
20
"Requesting Holder" is defined in Section 2.2.
"Securities Act" means the Securities Act of 1933,
or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933 shall
include a reference to the comparable section, if any, of any such similar
Federal statute.
"Selling Holder" is defined in Section 2.1.
"Significant Investor" means each Investor named in the first
paragraph of this Agreement (and not any other holder of Registrable
Securities or any other Person) so long as, at a time in question (i) such
Investor holds Registrable Securities and (ii) all the Investors (together
with partners of Corporate Partners and partners of Corporate Offshore
Partners) hold Registrable Securities representing (or then convertible
into) at least 10% of the Common Stock then outstanding.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or
any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to
time.
4. Rule 144. The Company shall take all actions reasonably
necessary to enable holders of Registrable Securities to sell such
Securities 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 rule or regulation hereafter adopted by the Commission
including, without limiting the generality of the foregoing, filing on a
timely basis all reports required to be filed by the Exchange Act. Upon
the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied
with such requirements.
5. Amendments and Waivers. This Agreement may be amended with
the consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by
it, only if the Company shall have obtained the written consent to such
amendment, action or omission to act, of the holder or holders of at least
66-2/3% of the Registrable Securities. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
consent authorized by this Section 5, whether or not such Registrable
Securities shall have been marked to indicate such consent.
21
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its election in writing
delivered to the Company, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or
holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable
Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
7. Notices. All communications provided for hereunder shall be
sent by postage-prepaid first-class mail, shall be deemed to be received
three days after being sent, or, if earlier, the date of actual receipt,
and shall be addressed as follows:
(a) if to any Investor, addressed to it in the manner set forth
in the Exchange Agreement, or at such other address as such party
shall have furnished to the Company in writing;
(b) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in
writing, or, until any such other holder so furnishes to the Company
an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner set forth in
the Exchange Agreement, or at such other address as the Company shall
have furnished to each holder of Registrable Securities at the time
outstanding.
22
8. Assignment; Calculation of Percentage Interests in
Registrable Securities. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and, with
respect to the Company, its respective successors and assigns and, with
respect to the Investors, any holder of any Registrable Securities, subject
to the provisions respecting the minimum numbers of percentages of shares
of Registrable Securities required in order to be entitled to certain
rights, or take certain actions, contained herein. The Investors named in
the first paragraph of this Agreement (and not any other holder of
Registrable Securities or any other Person) shall be permitted, in
connection with a transfer or disposition of Registrable Securities
permitted by the Exchange Agreement, to impose conditions or constraints on
the ability of the transferee, as a holder of Registrable Securities, to
request a registration pursuant to Section 2.1 and shall provide the
Company with copies of such conditions or constraints and the identity of
such transferees.
(b) For purposes of this Agreement, all references to a
percentage of the Registrable Securities shall be calculated based upon the
number of shares of Registrable Securities outstanding at the time such
calculation is made, assuming the conversion of all Subordinated Debentures
and New Preferred Shares into shares of Common Stock.
9. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for
reference only and shall not limit or otherwise affect the meaning hereof.
10. Entire Agreement. This Agreement and the Exchange Agreement
(including the other documents set forth in the Exhibits to the Exchange
Agreement) contain the entire understanding of the parties with respect to
the transactions contemplated hereby and thereby. Without limiting the
generality of the foregoing, the parties hereby agree that upon the
execution and delivery of this Agreement, the Registration Rights Agreement
dated as of January 30, 1989, between the Investors and the Company shall
be cancelled and of no further force or effect.
11. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be
governed by, the laws of the State of Delaware.
23
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
POLAROID CORPORATION
by
Xxxxxxx X. X'Xxxxx, Xx.
-----------------------
Name: Xxxxxxx X. X'Xxxxx, Xx.
Title: Group Vice President and
Chief Financial Officer
CORPORATE PARTNERS, L.P.
by Corporate Advisors, L.P.
General Partner
by LFCP Corp.
General Partner
by Xxxxxx Xxxxxxx
--------------
Name: Xxxxxx Xxxxxxx
Title: Chairman
CORPORATE OFFSHORE PARTNERS, L.P.
by Corporate Advisors,L.P.
General Partner
by LFCP Corp.
General Partner
by Xxxxxx Xxxxxxx
--------------
Name: Xxxxxx Xxxxxxx
Title: Chairman
00
XXXXX XXXXX XX XXXXXXXXXXXXXX
XX XXXXXXX
by Corporate Advisors, L.P.
Attorney-in-Fact
by LFCP Corp.
General Partner
by Xxxxxx Xxxxxxx
--------------
Name: Xxxxxx Xxxxxxx
Title: Chairman
