EXHIBIT 10.7
SELECT COMFORT CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made this 6th day of June, 2001 among
Select Comfort Corporation, a Minnesota corporation (the "COMPANY"), each of the
Note Holders (as defined below), each of the Old Warrant Holders set forth on
SCHEDULE A, each of the Old Preferred Shareholders set forth on Schedule B, and
Martinson & Company, Ltd. ("M&C") (this "AGREEMENT").
WHEREAS, the Company is entering into a Note Purchase Agreement pursuant to
which it will issue up to $12 million principal amount of senior secured
convertible notes (together with any notes of the Company issued in exchange or
substitution therefor, the "Convertible Notes"), and warrants to purchase up to
4,800,000 shares (together with any warrants of the Company issued in exchange
or substitution therefor, the "Note Holder Warrants") of the Company's common
stock, par value $0.01 per share (the "Common Stock"), to certain investors (the
"Note Holders"); and the Company entered into that certain Letter Agreement
dated April 3, 2001 with its placement agent, M&C to grant M&C a warrant to
purchase approximately 353,438 shares of Common Stock (the "M&C Warrant"); and
WHEREAS, as in connection with the issuance of the Convertible Notes and
the Note Holder Warrants, the Company has agreed to grant the Note Holders
certain registration rights with respect to such Convertible Notes and Note
Holder Warrants, and the Company has agreed to grant M&C certain registration
rights pursuant to the terms and conditions of this Agreement; and
WHEREAS, as a condition to purchasing the Convertible Notes and Note Holder
Warrants, the Note Holders have required the Company to include as parties to
this Agreement the Old Warrant Holders and Old Preferred Shareholders to
coordinate the relative priorities of the registration rights of the Old Warrant
Holders, the Note Holders and the Old Preferred Shareholders, all as more fully
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company, the Note Holders, the
Old Warrant Holders and the Old Preferred Shareholders mutually agree as
follows:
1. REGISTRATION OF SECURITIES.
1.1 REQUIRED REGISTRATION.
(a) If the Company shall receive a written request therefor from
either (i) the holder or holders of at least 40% of the New
Registrable Securities or (ii) the holder or holders of at least 67%
of the Old Registrable Securities, the Company shall prepare and file
a registration statement under the Securities Act covering the
Registrable Securities which are the subject of such request and shall
use all commercially reasonable efforts to cause such registration
statement to become effective. In addition, upon the receipt of such
request, the Company shall
promptly give written notice to all other holders of New Registrable
Securities or Old Registrable Securities (whichever shall have
initiated such registration) that such registration is to be effected.
The Company shall include in such registration statement such New
Registrable Securities or Old Registrable Securities (whichever shall
have initiated such registration) for which it has received written
requests to register by such other holders within 30 days after the
delivery of the Company's written notice to such other holders.
(b) The Company's obligation to register New Registrable
Securities and Old Registrable Securities under this Section 1.1
shall, however, be subject to the following limitations: (a) the
Company shall be obligated to prepare, file and use its commercially
reasonable efforts to cause to become effective pursuant to this
Section 1.1 only two registration statements on Form S-1 or any
successor form promulgated by the SEC ("Form S-1") at the initiation
of holders of New Registrable Securities and only two registration
statements on Form S-1 at the initiation of holders of Old Registrable
Securities (provided, however, that a demand for registration shall
not count as a registration under this clause (a) if either (i) the
registration statement filed with respect to such registration is not
declared effective by the SEC for reasons other than the holders not
proceeding with such registration, or (ii) each holder requesting
registration of Registrable Securities under this Section 1.1 does not
register and sell at least 90% of the Registrable Securities it has
requested be registered in such registration for reasons other than
its voluntary decision not to do so); (b) if the Company is required
to use Form S-1, the Company shall not be obligated to prepare, file
or use its commercially reasonable efforts to cause to become
effective a registration statement pursuant to this Section 1.1 unless
at least 20% of the New Registrable Securities or Old Registrable
Securities (whichever shall have initiated such registration) are
included in such registration statement and the anticipated aggregate
offering price to the public of such Registrable Securities to be
registered is at least $5,000,000; (c) the Company shall be obligated
to prepare, file and use its commercially reasonable efforts to cause
to become effective pursuant to this Section 1.1 only two registration
statements on Form S-3 or any successor form promulgated by the SEC
("Form S-3") at the initiation of holders of New Registrable
Securities and only two registration statements on Form S-3 at the
initiation of holders of Old Registrable Securities in any
twelve-month period (provided, however, that a demand for registration
shall not count as a registration under this clause (c) if either (i)
the registration statement filed with respect to such registration is
not declared effective by the SEC for reasons other than the holders
not proceeding with such registration, or (ii) each holder requesting
registration of Registrable Securities under this Section 1.1 does not
register and sell at least 90% of the Registrable Securities it has
requested be registered in such registration for reasons other than
its voluntary decision not to do so); (d) if the Company meets the
requirements for using Form S-3, the Company shall not be obligated to
prepare, file or use its commercially reasonable efforts to cause to
become effective a registration statement pursuant to this Section 1.1
unless the anticipated aggregate offering price to the public of the
New Registrable Securities or Old Registrable Securities (whichever
shall have initiated such registration) to be registered is at least
$500,000; and (e) the Company shall not be obligated to effect any
registration pursuant to this Section 1.1 at the initiation of holders
of the New Registrable Securities prior to the first anniversary of
the date of this Agreement. Notwithstanding anything to the contrary
stated in this Section 1.1, in the event the holders of at least 67%
of the New Registrable Securities or Old Registrable Securities
(whichever shall have initiated such registration) for which
registration has been requested pursuant to this Section 1.1 determine
for any reason not to proceed with such registration at any time
before a registration
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statement has been declared effective by the SEC, and such
registration statement, if theretofore filed with the SEC, is
withdrawn with respect to the Registrable Securities covered thereby,
and the holders of such New Registrable Securities or Old Registrable
Securities (whichever shall have initiated such registration) agree to
bear their own expenses incurred in connection therewith and to
reimburse the Company for the expenses incurred by it attributable to
the registration of such Registrable Securities, then the holders of
such New Registrable Securities or Old Registrable Securities
(whichever shall have initiated such registration) shall not be deemed
to have exercised their right to require the Company to register
Registrable Securities pursuant to this Section 1.1.
(c) Notwithstanding anything to the contrary stated in this
Section 1.1, if the Company, within 30 days after any written request
for registration is received by it pursuant to this Section 1.1, shall
furnish to the holders of the New Registrable Securities or the Old
Registrable Securities (whichever shall have initiated such
registration) for which registration has been requested under this
Section 1.1 a certificate signed by the chief executive officer of the
Company stating that the Company, pursuant to an action approved by
its Board of Directors, already has a present plan to commence
preparation of a registration statement and to file the same within 90
days, the Company shall have the right to defer the preparation and
filing of a registration statement pursuant to this Section 1.1 for a
period ending not later than 90 days after the date such certificate
is so furnished.
(d) Without the written consent of the holders of at least 67% of
the New Registrable Securities or 67% of the Old Registrable
Securities (whichever shall have initiated such registration) for
which registration has been requested pursuant to this Section 1.1,
neither the Company nor any other holder of securities of the Company
may include securities in such registration if in the good faith
judgment of the managing underwriter of such public offering the
inclusion of such securities would interfere with the successful
marketing of the New Registrable Securities or Old Registrable
Securities (whichever shall have initiated such registration) or
require the exclusion of any portion of the New Registrable Securities
or Old Registrable Securities (whichever shall have initiated such
registration) to be registered.
(e) If an offering covered by a request for registration under
this Section 1.1 is underwritten in whole or in part and the managing
underwriter of such public offering furnishes a written opinion that
the total number of New Registrable Securities or Old Registrable
Securities (whichever shall have initiated such registration) proposed
to be sold in such offering exceeds the maximum number of New
Registrable Securities or Old Registrable Securities (whichever shall
have initiated such registration) (as specified in such opinion) which
can be marketed at a price reasonably related to the then current
market value of such Registrable Securities and without materially and
adversely affecting such offering, then the number of New Registrable
Securities or Old Registrable Securities (whichever shall have
initiated such registration) to be sold by each prospective seller
shall be reduced pro rata, to the extent necessary. Those New
Registrable Securities or Old Registrable Securities (whichever shall
have initiated such registration) which are thus excluded from the
underwritten public offering shall be withheld from the market by the
holders thereof for a period, not to exceed 90 days, which the
managing underwriter reasonably determines is necessary in order to
effect the underwritten public offering.
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(f) The Company will not be obligated to cause any registration
statement to become effective under this Section 1.1 at any time if,
in the good faith judgment of the Company, there is a material
development relating to the condition (financial or other) of the
Company that has not been disclosed to the general public and an
officer of the Company certifies to the holders of the New Registrable
Securities or Old Registrable Securities (whichever shall have
initiated such registration) that a resolution has been adopted by the
Company's Board of Directors, after consultation with counsel,
recognizing such development and concluding that under such
circumstances it would be in the Company's best interest not to file
such registration statement; provided that the aggregate period of
delay under this Section 1.1(f), when combined with the aggregate
period of any suspension under Section 3 hereof, may not exceed, in
any twelve-month period, more than 90 days unless the holders of at
least 67% of the New Registrable Securities or Old Registrable
Securities (whichever shall have initiated such registration) for
which registration has been requested under this Section 1.1 consent
in writing to a longer delay of up to an additional 90 days.
1.2 INCIDENTAL REGISTRATION.
(a) Each time the Company shall determine to proceed with the
actual preparation and filing of a registration statement under the
Securities Act in connection with the proposed offer and sale for cash
of any of its securities by it or any of its security holders (other
than a registration statement on a form that does not permit the
inclusion of shares by its security holders, but including a
registration statement being prepaid and filed at the request of
holders of Registrable Securities pursuant to Section 1.1 hereof), the
Company will give written notice of its determination to all holders
of Registrable Securities (other than any such holders who have been
afforded the opportunity to include all of their Registrable
Securities in such registration statement pursuant to the exercise of
demand registration rights under Section 1.1 hereof). Upon the written
request of a holder of any Registrable Securities given within 30 days
after receipt of any such notice from the Company, the Company will,
except as hereinafter provided, cause all such Registrable Securities,
the holders of which have so requested registration thereof, to be
included in such registration statement, all to the extent requisite
to permit the sale or other disposition by the prospective seller or
sellers of the Registrable Securities to be so registered; provided,
however, that nothing herein shall prevent the Company from, at any
time, abandoning or delaying any such registration initiated by it;
provided further, however, that if the Company determines not to
proceed with a registration after the registration statement has been
filed with the SEC and the Company's decision not to proceed is
primarily based upon the anticipated public offering price of the
securities to be sold by the Company, the Company shall promptly
complete the registration for the benefit of those selling security
holders who wish to proceed with a public offering of their securities
and who bear all expenses in excess of $40,000 incurred by the Company
as the result of such registration after the Company has decided not
to proceed.
(b) If any registration pursuant to this Section 1.2 shall be
underwritten in whole or in part, the Company may require that the
Registrable Securities requested for inclusion pursuant to this
Section 1.2 be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the
underwriters.
(c) If an offering covered by a request for registration under
this Section 1.2 is underwritten in whole or in part and the managing
underwriter of such offering furnishes a
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written opinion that the total number of securities proposed to be
sold in such offering exceeds the maximum number of securities (as
specified in such opinion) which can be marketed at a price reasonably
related to the then current market value of such securities and
without materially and adversely affecting such offering, then the
number of securities to be sold by each prospective seller (including
the Company) in the offering shall be reduced as follows: first, the
number of securities proposed to be registered by persons other than
the Company having no registration rights shall be reduced, pro rata,
to zero, if necessary; second, the number of securities proposed to be
registered by the Company (if the Company is not the initiator of the
registration) shall be reduced to zero, if necessary; third, the
number of Registrable Securities and other securities having similar
incidental registration rights proposed to be registered pursuant to
this Section 1.2 or pursuant to the exercise of such similar
registration rights shall be reduced, pro rata, to zero, if necessary;
and fourth, the number of securities proposed to be registered by the
Company (if the Company is the initiator of the registration) or by
any other persons requesting such registration pursuant to the
exercise of demand registration rights (if the Company is not the
initiator of the registration), including without limitation holders
of Registrable Securities requesting such registration pursuant to the
exercise of demand registration rights under Section 1.1 hereof, shall
be reduced, pro rata. Those Registrable Securities which are thus
excluded from the underwritten public offering shall be withheld from
the market by the holders thereof for a period, not to exceed 90 days,
which the managing underwriter reasonably determines is necessary in
order to effect the underwritten public offering.
2. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions of Section 1.1 or 1.2 hereof to effect the registration of
Registrable Securities under the Securities Act, the Company will:
(a) prepare and file with the SEC a registration statement with
respect to such securities, and use all commercially reasonable efforts to
cause such registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such
securities, not to exceed nine months;
(b) prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be
necessary to keep such registration statement effective for such period as
may be reasonably necessary to effect the sale of such securities, not to
exceed nine months;
(c) furnish to the security holders participating in such registration
and to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus,
final prospectus and such other documents as such security holders or
underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) use all commercially reasonable efforts to register or qualify the
securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating
holders may reasonably request in writing within 20 days following the
original filing of such registration statement, except that the Company
shall not for
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any purpose be required to execute a general consent to service of process
or to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified;
(e) notify the security holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(f) notify such holders promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or
for additional information;
(g) prepare and file with the SEC, promptly upon the request of any
such holder, any amendments or supplements to such registration statement
or prospectus which, in the opinion of counsel for such holder (and
concurred in by counsel for the Company), is required under the Securities
Act or the rules and regulations thereunder in connection with the
distribution of securities by such holder;
(h) prepare and promptly file with the SEC and promptly notify such
holders of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading;
(i) advise such holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued;
(j) not file any amendment or supplement to such registration
statement or prospectus to which a majority in interest of such holders
shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements
of the Securities Act or the rules and regulations thereunder, after having
been furnished with a copy thereof at least five business days prior to the
filing thereof, unless in the opinion of counsel for the Company the filing
of such amendment or supplement is reasonably necessary to protect the
Company from any liabilities under any applicable federal or state law and
such filing will not violate applicable law; and
(k) at the request of any such holder, furnish: (i) an opinion, dated
as of the closing date, of the counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, and
to the holder or holders making such request, covering such matters as such
underwriters and holder or holders may reasonably request; and (ii) letters
dated as of the effective date of the registration statement and as of the
closing date, from the independent certified public accountants of the
Company, addressed to the underwriters, if any,
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and to the holder or holders making such request, covering such matters as
such underwriters and holder or holders may reasonably request.
3. SUSPENSION OF RESALES. The Company shall be entitled to suspend the use
of the prospectus forming the part of any registration statement which has
theretofore become effective at any time if, in the good faith judgment of the
Company, there is a material development relating to the condition (financial or
other) of the Company that has not been disclosed to the general public and the
Chief Executive Officer and Chief Financial Officer of the Company certifies in
writing to the holders of the Registrable Securities included in such
registration statement and not previously sold thereunder that, after
consultation with counsel, such officers have reasonably concluded that under
such circumstances it would be in the Company's best interest to suspend the use
of such prospectus; provided that the aggregate period of suspension under this
Section 3, when combined with the aggregate period of any delay under Section
1.1(f) hereof, may not exceed, in any twelve-month period, more than 90 days
unless the holders of at least 67% of the Registrable Securities included in
such registration statement and not previously sold thereunder consent in
writing to a longer suspension of up to an additional 90 days. Each holder of
Registrable Securities included in any such registration statement and not
previously sold thereunder agrees that upon its receipt of such written
certification, it shall immediately discontinue the sale of any Registrable
Securities pursuant to such registration statement until such holder has
received copies of the supplemented or amended prospectus referred to in Section
2(h) hereof or until such holder is advised in writing that the use of the
prospectus forming a part of such registration statement may be resumed and has
received copies of any additional or supplemental filings that are incorporated
by reference in such prospectus (provided that in no event shall any such holder
be precluded hereby from the sale of any Registrable Securities pursuant to such
registration statement for longer than the period that the Company is permitted
to suspend the use of the prospectus forming a part of such registration
statement as provided above). In addition, each such holder agrees that it will
either (i) destroy any prospectuses, other than permanent file copies, then in
such holder's possession which have been replaced by the Company with more
recently dated prospectuses or (ii) deliver to the Company all copies, other
than permanent file copies, then in such holder's possession of the prospectus
covering such Registrable Securities that was current at the time of receipt of
the aforesaid written certification.
4. PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
REGISTRATION Statement. No holder may include any of its Registrable Securities
in a registration statement pursuant to this Agreement unless and until such
holder furnishes to the Company in writing, within 20 days after receipt of a
request therefor, the information specified in Item 507 or 508, as applicable,
of Regulation S-K promulgated under the Securities Act for use in connection
with such registration statement or the prospectus or preliminary prospectus
included therein. Each selling holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
5. EXPENSES. With respect to each registration requested pursuant to
Section 1.1 hereof (except as otherwise provided in such Section with respect to
registrations voluntarily terminated at the request of the requesting security
holders) and with respect to each inclusion of Registrable Securities in a
registration statement pursuant to Section 1.2 hereof (except as
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otherwise provided in Section 1.2 with respect to registrations initiated by the
Company but with respect to which the Company has determined not to proceed),
the Company shall bear the following fees, costs and expenses: all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel and
accountants for the Company, fees and disbursements of counsel for the
underwriter or underwriters of such securities (if the Company and/or selling
security holders are required to bear such fees and disbursements), fees and
disbursements of one special counsel for the selling security holders, all
internal Company expenses, all legal fees and disbursements and other expenses
of complying with state securities or blue sky laws of any jurisdictions in
which the securities to be offered are to be registered or qualified, and the
premiums and other costs of policies of insurance against liability (if any)
arising out of such public offering. Any other fees and disbursements of counsel
and accountants for the selling security holders, and all underwriting discounts
and commissions and transfer taxes relating to the shares included in the
offering by the selling security holders, and any other expenses incurred by the
selling security holders not expressly included above, shall be borne by the
selling security holders.
6. INDEMNIFICATION. In the event that any Registrable Securities are
included in a registration statement under Section 1.1 or 1.2 hereof:
(a) The Company will indemnify and hold harmless each holder of
Registrable Securities which are included in a registration statement
pursuant to the provisions of Section 1, its directors and officers, and
any underwriter (as defined in the Securities Act) for such holder and each
person, if any, who controls such holder or such underwriter within the
meaning of the Securities Act, from and against, and will reimburse such
holder and each such director, officer, underwriter and controlling person
with respect to, any and all loss, damage, liability, cost and expense to
which such holder or any such director, officer, underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, damages, liabilities, costs or expenses are caused by any
untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, damage, liability, cost or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in reliance upon and in strict conformity with
information furnished by such holder, director, officer, underwriter or
controlling person in writing specifically for use in the preparation
thereof.
(b) Each holder of Registrable Securities which are included in a
registration pursuant to the provisions of Section 1 will indemnify and
hold harmless the Company, its directors and officers, any underwriter (as
defined in the Securities Act) for the Company and each person, if any, who
controls the Company or such underwriter within the meaning of the
Securities Act, from and against, and will reimburse the Company and each
such director, officer, underwriter and controlling person with respect to,
any and all loss, damage, liability, cost or expense to which the Company
or any such director, officer, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any untrue or alleged
untrue statement of
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any material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of
or are based upon the omission or the 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was so made in reliance upon and in strict conformity with written
information furnished by such holder specifically for use in the
preparation thereof; provided, however, that the obligations of any such
holder under this Section 6(b) shall be limited to an amount equal to the
proceeds to such holder of the Registrable Securities sold by it in the
offering, unless such loss, damage, liability, cost or expense resulted
from such holder's intentionally fraudulent misconduct.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 6 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to
be made against the indemnifying party pursuant to the provisions of said
paragraph (a) or (b), promptly notify the indemnifying party of the
commencement thereof (provided that failure to give such prompt notice
shall not limit the indemnification obligations of the indemnifying party
hereunder except to the extent that the delay in giving, or failure to
give, such notice has an adverse effect on the ability of the indemnifying
party to defend against the action, and provided further that the failure
to give such prompt notice shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than
hereunder). In case such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel satisfactory
to such indemnified party; provided, however, if the defendants in any
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
or if there is a conflict of interest which would prevent counsel for the
indemnifying party from also representing the indemnified party, the
indemnified party or parties shall have the right to select separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
pursuant to the provisions of said paragraph (a) or (b) for any legal or
other expense subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation,
unless (i) the indemnified party shall have employed counsel in accordance
with the proviso of the preceding sentence, (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice
of the commencement of the action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
7. EXCEPTIONS TO REGISTRATION OBLIGATIONS. Notwithstanding anything to the
contrary stated in this Agreement, the Company shall not be obligated to honor a
request from any holder of Registrable Securities to register all or any portion
thereof if the Registrable Securities held by such holder and requested to be
included in a registration statement pursuant to this Agreement
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are otherwise eligible for immediate sale by such holder under Rule 144(k) (or
any similar rule then in effect) promulgated under the Securities Act.
8. COVENANT NOT TO EXERCISE REGISTRATION RIGHTS UNDER OLD REGISTRATION
STATEMENT. Each of the holders of the Old Registrable Securities agrees on
behalf of itself and any future assignees or transferees not to exercise any
registration rights under the Amended and Restated Registration Rights Agreement
dated as of December 28, 1995, as amended.
9. DEFINITIONS. Each of the capitalized terms used herein shall have the
meaning given to such terms as defined elsewhere in this Agreement or as set
forth below:
(a) "New Registrable Securities" shall mean (i) any shares of Common
Stock which have been issued or are issuable upon the conversion of the
Convertible Notes, (ii) any shares of Common Stock which have been issued
or are issuable upon exercise of the Note Holder Warrants and the M&C
Warrant, and (iii) any shares of Common Stock issued in exchange or
substitution for, or in a stock split or reclassification of, or as a stock
dividend or other distribution on, or otherwise in respect of, any New
Registrable Securities (other than any such shares that have been
theretofore registered under the Securities Act and sold or that have been
theretofore sold in an open market transaction pursuant to Rule 144
promulgated under the Securities Act). Nothing in this Agreement shall be
deemed to require the Company to register any Convertible Notes or Note
Holder Warrants, it being understood that the registration rights granted
by Section 1 hereof relate only to shares of Common Stock.
(b) "Old Convertible Notes" shall mean the Convertible Subordinated
Debenture in the principal amount of $4 million, dated November 10, 2000,
payable to St. Paul Venture Capital VI, LLC on November 10, 2005.
(c) "Old Registrable Securities" shall mean (i) any shares of Common
Stock which have been issued or are issuable upon the exercise of the Old
Warrants, (ii) any shares of Common Stock which have been issued upon the
conversion of the Old Preferred Stock, (iii) any shares of Common Stock
that have been issued or are issuable upon conversion of the Old
Convertible Notes, and (iv) any shares of Common Stock issued in exchange
or substitution for, or in a stock split or reclassification of, or as a
stock dividend or other distribution on, or otherwise in respect of, any
Old Registrable Securities (other than any such shares that have been
theretofore registered under the Securities Act and sold or that have been
theretofore sold in an open market transaction pursuant to Rule 144
promulgated under the Securities Act). Nothing in this Agreement shall be
deemed to require the Company to register any Old Warrants or Old
Convertible Notes, it being understood that the registration rights granted
by Section 1 hereof relate only to shares of Common Stock.
(d) "Registrable Securities" shall mean the New Registrable Securities
and the Old Registrable Securities.
(e) "Old Preferred Shareholders" shall mean the holders of the shares
of Common Stock issued upon conversion of the various series of convertible
preferred stock of the Company heretofore issued and converted in full who
are affiliates of the Company as of the date
10
of this Agreement, who are St. Paul Fire and Marine Insurance Co., Patrick
A. Hopf and Consumer Venture Partners II, L.P.
(f) "Old Preferred Stock" shall mean shares of Common Stock issued
upon conversion of the various series of convertible preferred stock of the
Company heretofore issued and converted in full held by the Old Preferred
Shareholders as set forth on Schedule B.
(g) "Old Warrants" shall mean the Warrant Agreements as set forth on
Schedule A.
(h) "Old Warrant Holders" shall mean the holders of the Old Warrants
as set forth on Schedule A.
(i) "SEC" shall mean the Securities and Exchange Commission.
(j) "Securities Act" shall mean the Securities Act of 1933, as
amended.
10. NOTICE. All notices, demands, requests and other communications given
to or made upon a party pursuant to this Agreement shall be in writing and shall
be mailed (by certified mail, postage prepaid and return receipt requested),
sent by overnight courier, telecopied or hand delivered to such party:
(a) in the case of any holder of Registrable Securities, at the
address of such holder specified below its signature at the end of this
Agreement or at such other address as such holder may specify by written
notice to the Company, or
(b) in the case of the Company, at the address specified below its
signature at the end of this Agreement or at such other address as the
Company may specify by written notice to the holders of Registrable
Securities.
All such notices, demands, requests and communications shall be effective and
deemed to have been given and received (i) if sent by certified mail, postage
prepaid and return receipt requested, when received or three business days after
mailing, whichever first occurs, (ii) if sent by overnight courier, one business
day after delivery to such courier, (iii) if telecopied, when transmitted and a
confirmation is received, provided the same is on a business day and, if not, on
the next business day, or (iv) if hand delivered, upon delivery, provided that
the same is on a business day and, if not, on the next business day.
11. CHANGES, WAIVERS, ETC. This Agreement may be amended or modified only
by a written instrument executed by (i) the Company, (ii) the holders of at
least 67% of the Old Registrable Securities and (iii) the holders of at least
67% of the New Registrable Securities.
12. PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not.
11
13. CHOICE OF LAW. The internal laws of Minnesota shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties hereunder.
14. COUNTERPARTS. This Agreement may be executed concurrently in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement shall be
enforceable against, and binding upon, each party that duly executes and
delivers this Agreement, regardless of whether any other party executes this
Agreement.
15. SEVERABILITY. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement,
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
16. FORCE OF AMENDMENT. As to all parties hereto, this Agreement shall
supercede all other registration rights agreements to which any of the parties
hereto and the Company are also parties. Each of the parties hereto agrees that
it shall not approve, authorize, ratify or otherwise consent or agree to the
exercise of any registration rights under any other agreement to which the
Company is a party.
IN WITNESS WHEREOF, the each of the undersigned has caused this Agreement
to be executed by its duly authorized representative.
SELECT COMFORT CORPORATION,
a Minnesota corporation
By: /s/ MARK A. KIMBALL
--------------------------------------------
Its: SENIOR VICE PRESIDENT
------------------------------------------
NOTE HOLDERS:
ST. PAUL VENTURE CAPITAL VI, LLC
By: SPVC MANAGEMENT VI, LLC
Its: Managing Member
By: /s/ PATRICK A. HOPF
--------------------------------------------
Name: PATRICK A. HOPF
-------------------------------------
Title: MANAGING DIRECTOR
------------------------------------
Address: 10400 Viking Drive
Suite 500
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
12
PRINTWARE, INC.
By: /s/ MARK EISENSCHENK
--------------------------------------------
Name: Mark Eisenschenk
Its: Chief Financial Officer
Address: 1270 Eagan Industrial Road
St. Paul, MN 55121
Telephone No.: 651-456-1400
Fax No.: 651-454-3684
/s/ GARY S. KOHLER
-----------------------------------------------
Gary S. Kohler
Address: 3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
Telephone No.: 612-253-6027
Fax No.:
--------------------------
/s/ ANDREW J. REDLEAF
-----------------------------------------------
Andrew J. Redleaf
Address: 3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
Telephone No.: 612-253-6027
Fax No.:
--------------------------
LIBERTY DIVERSIFIED
By: /s/ DAVID LENZEN
--------------------------------------------
Its: EXECUTIVE VICE PRESIDENT
-------------------------------------------
Address: 5600 North Highway 169
Minneapolis, MN 55428
Telephone No.: 763-536-6600
Fax No.: 763-536-6685
13
STANDARD FUSEE CORPORATION
By: /s/ C. JAY MCLAUGHLIN
--------------------------------------------
Its: PRESIDENT AND CEO
-------------------------------------------
Address: 28320 St. Michael's Road
P.O. Box 1047
Easton, MN 21601
Telephone No.: 1-800-637-7807
Fax No.: 410-822-7759
/s/ K.H. WALKER
-----------------------------------------------
K .H. Walker
Address: 15 East 26th Street
12th Floor
New York, NY 10010
Telephone No.: 212-683-2626 ext. 22
Fax No.: 212-683-6840
/s/ THOMAS J. ALBANI
-----------------------------------------------
Thomas J. Albani
Address: 39 Wanoma Way
Nantucket, MA 02554
Telephone No.: 508-257-4620
Fax No.: 508-257-4172
/s/ ERVIN R. SHAMES
-----------------------------------------------
Ervin R. Shames
Address: 35 Mollbrook Drive
Wilton, CT 06897
Telephone No.: 203-762-1205 (home)
Telephone No.: 203-762-0298 (office)
Fax No.: 203-762-9408
/s/ JEAN-MICHEL VALETTE
-----------------------------------------------
Jean-Michel Valette
Address: 28 Maple Avenue
Kentfield, CA 94905
Telephone No.: 415-456-0432 (home)
Telephone No.: 425-456-2850 (office)
Fax No.: 415-456-0487
14
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
By: /s/ RUSSELL CLEVELAND
--------------------------------------------
Its: DIRECTOR
-------------------------------------------
Address: Attn: Robert C. Pearson, Sr. V.P.
Renaissance Capital Group, Inc.
8080 North Central Expressway
Suite 210-LB 59
Dallas, TX 75206
Telephone No.: 214-891-8294
Fax No.: 214-891-8291
RENAISSANCE US GROWTH & INCOME
TRUST PLC
By: /s/ RUSSELL CLEVELAND
--------------------------------------------
Its: DIRECTOR
-------------------------------------------
Address: Attn: Robert C. Pearson, Sr. V.P.
Renaissance Capital Group, Inc.
8080 North Central Expressway
Suite 210-LB 59
Dallas, TX 75206
Telephone No.: 214-891-8294
Fax No.: 214-891-8291
BAYSTAR CAPITAL, L.P.
By: /s/ MICHAEL A. ROTH
--------------------------------------------
Its: MANAGING DIRECTOR
-------------------------------------------
Address: 1500 West Market Street, Suite 200
Mequon, WI 53092
Telephone No.: 262-240-3115
Fax No.: 262-240-3215
15
BAYSTAR INTERNATIONAL, LTD.
By: /s/ MICHAEL A. ROTH
--------------------------------------------
Its: MANAGING DIRECTOR
-------------------------------------------
Address: 1500 West Market Street, Suite 200
Mequon, WI 53092
Telephone No.: 262-240-3115
Fax No.: 262-240-3215
OLD PREFERRED SHAREHOLDERS:
CONSUMER VENTURE PARTNERS II,
L.P., a Delaware Limited Partnership
By: Consumer Venture Associates II, L.P.,
Its: General Partner
By: /s/ CHRISTOPHER P. KIRCHEN
--------------------------------------------
Its: General Partner
Address: 3 Pickwick Plaza
Greenwich, Connecticut 06830
ST. PAUL FIRE AND MARINE
INSURANCE CO., a Minnesota corporation
By: /s/ PATRICK A HOPF
--------------------------------------------
Name: PATRICK A. HOPF
-------------------------------------
Title: AUTHORIZED REPRESENTATIVE
------------------------------------
Address: c/o St. Paul Venture Capital
10400 Viking Drive, Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
/s/ PATRICK A. HOPF
-----------------------------------------------
Patrick A. Hopf
Address: St. Paul Venture Capital
10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
16
ST. PAUL VENTURE CAPITAL IV, LLC
By: /s/ PATRICK A. HOPF
-------------------------------------------
Its: MANAGING MEMBER
-------------------------------------------
Address: 10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
CHERRY TREE VENTURES IV LIMITED PARTNERSHIP
By: /s/ GORDON STOFER
--------------------------------------------
Its: GENERAL PARTNER
-------------------------------------------
Address: 7601 France Avenue S., #150
Edina, MN 55435
NORWEST EQUITY PARTNERS IV,
a Minnesota Limited Partnership
By: Itasca Partners
Its: General Partner
By: /s/ JOHN P. WHALEY
--------------------------------------------
Its: Partner
NORWEST EQUITY PARTNERS V,
a Minnesota Limited Partnership
By: Itasca Partners V
Its: General Partner
By: /s/ JOHN P. WHALEY
--------------------------------------------
Its: Partner
KCB BV, L.P.
a California Limited Partnership
By: KCB BV, INC.
Its: General Partner
By:
-------------------------------------------
Harvey G. Knell, President
17
OLD WARRANT HOLDERS:
ST. PAUL VENTURE CAPITAL IV, LLC
By: /s/ PATRICK A. HOPF
--------------------------------------------
Its: MANAGING MEMBER
-------------------------------------------
Address: 10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
APEX INVESTMENT FUND, L.P.
By: Apex Management Partnership,
its General Partner
By: /s/ GEORGE MIDDLEMAS
--------------------------------------------
Its: GENERAL PARTNER
-------------------------------------------
Address: 225 West Washington Street
Suite 1450
Chicago, IL 60606
Telephone No.: 312-857-2800
Fax No.: 312-857-1800
Theodore H. Ashford
Address: Ashford Capital Management
3801 Kennett Pike
Building B, Suite 107
Wilmington, DE 19807
Telephone No.: 302-655-1750
Fax No.: 302-655-8690
BAYVIEW INVESTORS, LTD.
By:
--------------------------------------------
Its:
-------------------------------------------
Address: c/o Robertson Stephens & Co.
555 California Street, Suite 2600
San Francisco, CA 94104
Attn: Jennifer Sherrill
Telephone No.: 415-676-2618
Fax No.: 415-676-2990
18
ALEX BROWN & SONS EMPLOYEES VENTURE FUND LP
By:
--------------------------------------------
Its:
-------------------------------------------
Address: Mail Stop 22
1 South Street, Suite 2150
Baltimore, MD 21202-3204
Telephone No.:
--------------------
Fax No.:
--------------------------
/s/ EVERETT V. COX
-----------------------------------------------
Everett V. Cox
Address: c/o St. Paul Venture Capital
10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
-----------------------------------------------
Lynn Elliott
Address: c/o Aramco
P. O. Box 10572
Dhahrab, Saudi Arabia 31311
Telephone No.:
--------------------
Fax No.:
--------------------------
/s/ MICHAEL B. GORMAN
-----------------------------------------------
Michael B. Gorman
Address: c/o St. Paul Venture Capital
10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
19
GROSSMAN INVESTMENTS
By:
--------------------------------------------
Its:
-------------------------------------------
Address: 4670 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-3903
Telephone No.:
--------------------
Fax No.:
--------------------------
H & Q LONDON VENTURES
By:
--------------------------------------------
Its:
-------------------------------------------
Address: One Bush Street
San Francisco, CA 94104-4425
Telephone No.: 415-439-3440
Fax No.:
--------------------------
H & Q SELECT COMFORT INVESTORS L.P.
By:
--------------------------------------------
Its:
-------------------------------------------
Address: One Bush Street
San Francisco, CA 94104
Telephone No.: 415-439-3440
Fax No.:
--------------------------
-----------------------------------------------
Doug Hickman
Address: c/o T. Rowe Price
100 East Pratt Street
Baltimore, MD 21202-1009
Telephone No.:
Fax No.: 410-296-9699
20
/s/ PATRICK A. HOPF
-----------------------------------------------
Patrick A. Hopf
Address: St. Paul Venture Capital
10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
/s/ BRIAN D. JACOBS
-----------------------------------------------
Brian D. Jacobs
Address: 1800 Elmwood Road
Hillsborough, CA 94010-6363
Telephone No.: 650-596-3685
Fax No.: 650-596-5711
/s/ TERRAL JORDAN
-----------------------------------------------
Terral Jordan
Address: c/o T. Rowe Price
100 East Pratt Street
Baltimore, MD 21202-1009
Telephone No.:
Fax No.: 410-345-6853
-----------------------------------------------
Erwin A. Kelen
Address: Kelen Ventures
5500 Wayzata Blvd.
Suite 1045
Golden Valley, MN 55416-1241
Telephone No.:
--------------------
Fax No.:
--------------------------
MACKE LIMITED PARTNERSHIP
By:
--------------------------------------------
Its:
-------------------------------------------
Address: 2001 Union Street, Suite 320
San Francisco, CA 94123
Telephone No.:
--------------------
Fax No.:
--------------------------
21
MONTGOMERY ASSOCIATES 1992, L.P.
By:
--------------------------------------------
Its:
-------------------------------------------
Address: 600 Montgomery Street
San Francisco, CA 94111
Telephone No.:
--------------------
Fax No.:
--------------------------
MVP II AFFILIATES FUND, L.P.
By:
--------------------------------------------
Its:
-------------------------------------------
Address: Corporate 500 Centre, Suite 450
520 Lake Cook Road
Deerfield, IL 60015
Telephone No.: 847-940-1700
Fax No.: 847-940-1724
MARQUETTE VENTURE PARTNERS II L.P.
By:
--------------------------------------------
Its:
-------------------------------------------
Address: Corporate 500 Centre, Suite 450
520 Lake Cook Road
Deerfield, IL 60015
Telephone No.: 847-940-1700
Fax No.: 847-940-1724
-----------------------------------------------
Sharon Pearson
Address: c/o Morgan Stanley & Co.
1585 Broadway
31st Floor
New York, NY 10036
Telephone No.: 212-761-4000
Fax No.: 212-761-0086
22
THE PRODUCTIVITY FUND II, L.P.
By: /s/ BRET MAXWELL
--------------------------------------------
Its:
-------------------------------------------
Address: 225 West Washington Street
Suite 1450
Attn: Bret Maxwell
Chicago, IL 60606
Telephone No.: 312-857-2800
Fax No.: 312-857-1800
PAINE WEBBER INCORPORATED,
CUSTODIAN OF FRED W. REESE
DECEDENT IRA
By: /s/ JAMES A. FLANEGAN
--------------------------------------------
Its:
-------------------------------------------
Address: c/o James Flanegan
15440 Thorntree Run
Alpharetta, GA 30201
Telephone No.: 770-663-8229
Fax No.:
/s/ JOHN A. ROLLWAGEN
-----------------------------------------------
John A. Rollwagen
Address: 2322 W. Lake of the Isles Pkwy
Minneapolis, MN 55405
Telephone No.: 612-381-0032
Fax No.:
--------------------------
-----------------------------------------------
Dewey K. Shay
Address: 50 Hawthorne Road
New York, NY 11968
Telephone No.:
Fax No.:
23
-----------------------------------------------
Barbara E. Shronts
Address: St. Paul Venture Capital
10400 Viking Drive
Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
ST. PAUL FIRE AND MARINE
INSURANCE CO., a Minnesota corporation
By: /s/ PATRICK A. HOPF
--------------------------------------------
Name: PATRICK A. HOPF
-------------------------------------
Title: AUTHORIZED REPRESENTATIVE
------------------------------------
Address: c/o St. Paul Venture Capital
10400 Viking Drive, Suite 550
Eden Prairie, MN 55344
Telephone No.: 952-995-7474
Fax No.: 952-995-7475
MARTINSON & COMPANY, LTD.
By:
--------------------------------------------
Its:
-------------------------------------------
Address:
------------------------------------
Attn: Thomas Martinson
Telephone No.: 952-473-4133
Fax No.: 952-473-4613
24