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Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into
as of October 24, 2001 (this "AGREEMENT"), by and between Fleetwood
Enterprises, Inc., a Delaware corporation (the "COMPANY"), and Acqua
Wellington Private Placement Fund, Ltd., a company organized under the laws
of the Commonwealth of the Bahamas (the "PURCHASER").
This Agreement is being entered into pursuant to the
Purchase Agreement, dated as of the date hereof, by and between the Company
and the Purchaser (the "PURCHASE AGREEMENT").
The Company and the Purchaser hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used and not otherwise defined herein
shall have the meanings given such terms in the Purchase Agreement. As used
in this Agreement, the following terms shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under
common control with such Person. For the purposes of this definition,
"CONTROL," when used with respect to any Person, means the possession, direct
or indirect, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms of "AFFILIATED,"
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"BLACKOUT PERIOD" shall have the meaning set forth in
Section 3(n).
"BOARD" shall have the meaning set forth in Section 3(n).
"BUSINESS DAY" means any day except Saturday, Sunday and
any day which is a legal holiday or a day on which banking institutions in
the state of New York generally are authorized or required by law or other
government actions to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SHARES" shall have the meaning set forth in the
definition of "Registrable Securities."
"COMMON STOCK" means the Company's Common Stock, $1.00 par
value.
"EFFECTIVENESS DATE" means with respect to the Registration
Statement the earlier of (x) the 90th Business Day following the Closing
Date, before which the Company will use its commercially reasonable best
efforts to cause the registration statement to become effective and (y) the
date which is within five (5) Business Days of the date on which the
Commission informs
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the Company that the Commission (i) will not review the Registration
Statement or (ii) that the Company may request the acceleration of the
effectiveness of the Registration Statement.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2.
"EVENT" shall have the meaning set forth in Section 7(d).
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"FILING DATE" means the date the Registration Statement is
filed which date shall be within twenty-one (21) days following the Closing
Date.
"HOLDER" means the holder from time to time of Registrable
Securities including, including without limitation, the Purchaser and its
assignees.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 5(c).
"LIQUIDATED DAMAGES" shall have the meaning set forth in
Section 7(d).
"LOSSES" shall have the meaning set forth in Section 5(a).
"NYSE" shall mean the New York Stock Exchange.
"PERIOD" shall have the meaning set forth in Section 3(n).
"PERSON" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means the shares of Common Stock
issued pursuant to the Purchase Agreement (the "COMMON SHARES") and upon any
stock split, stock dividend, recapitalization or similar event with respect
to such Common Shares and any other securities issued in exchange of or
replacement of the Registrable Securities; until in the case of any of the
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Common Shares (i) a Registration Statement covering such Common Share has
been declared effective by the SEC; or (ii) such Common Share is sold in
compliance with Rule 144 or may be sold pursuant to Rule 144(k) after which
time such Common Share shall not be a Registrable Security.
"REGISTRATION STATEMENT" means the registration statement
and any additional registration statements contemplated by Section 2,
including (in each case) the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference
in such registration statement.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"RULE 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SPECIAL COUNSEL" means any special counsel to the Holders,
for which the Holders will be reimbursed by the Company pursuant to Section 4.
2. REGISTRATION. On or prior to the Filing Date the Company shall
prepare and file with the Commission a "shelf" Registration Statement
covering all Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall be on
Form S-3 (except if the Company is not then eligible to register for resale
the Registrable Securities on Form S-3, in which case such registration shall
be on another appropriate form in accordance with the Securities Act and the
rules promulgated thereunder). The Company shall (i) not permit any
securities other than the Registrable Securities to be included in the
Registration Statement, other than the securities described in SCHEDULE 2
hereto, (ii) use its commercially reasonable best efforts to cause the
Registration Statement to be declared effective under the Securities Act
(including filing with the Commission a request for acceleration of
effectiveness in accordance with Rule 12dl-2 promulgated under the Exchange
Act within five (5) Business Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the Commission that a
Registration Statement will not be "reviewed," or not be subject to further
review) as soon as possible after the filing thereof, but in any event prior
to the Effectiveness Date, and to keep such Registration Statement
continuously effective under the Securities Act until such date as is the
earlier of (x) the date when all Registrable Securities covered by such
Registration Statement have been sold or (y) the date on which the
Registrable Securities may be sold without any restriction pursuant to Rule
144(k) as determined by the
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counsel to the Company pursuant to a written letter, addressed to the
Company's transfer agent to such effect (the "EFFECTIVENESS PERIOD").
3. REGISTRATION PROCEDURES.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the
Filing Date, a Registration Statement on Form S-3 (or if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3
such registration shall be on another appropriate form in accordance with the
Securities Act and the Rules promulgated thereunder) in accordance with the
method or methods of distribution thereof as specified by the Holder (except
if otherwise directed by the Holder), and use its commercially reasonable
best efforts to cause the Registration Statement to become effective and
remain effective as provided herein; PROVIDED, HOWEVER, that not less than
three (3) Business Days prior to the filing of the Registration Statement or
any related Prospectus or any amendment or supplement thereto (including any
document that would be incorporated therein by reference), the Company shall
(i) furnish to the Holder and any Special Counsel, copies of all such
documents proposed to be filed, which documents (other than those
incorporated by reference) will be subject to the timely review of such
Special Counsel, and (ii) at the request of the Holder cause its officers and
directors, counsel and independent certified public accountants to respond to
such inquiries as shall be necessary, in the reasonable opinion of counsel to
such Holder, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file the Registration Statement or any
such Prospectus or any amendments or supplements thereto to which the Holder
or any Special Counsel shall reasonably object in writing within three (3)
Business Days of their receipt thereof; PROVIDED, HOWEVER, that Liquidated
Damages (as hereinafter defined) shall be suspended and shall cease to accrue
for such period that the Company does not file the Registration Statement or
any Prospectus or amendments or supplements as required hereunder as a result
of a reasonable objection of the Holder or any Special Counsel.
(b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration
Statement as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of
the Registrable Securities; (ii) cause the related Prospectus to be amended
or supplemented by any required Prospectus supplement, and as so supplemented
or amended to be filed pursuant to Rule 424 (or any similar provisions then
in force) promulgated under the Securities Act; (iii) respond promptly to any
comments received from the Commission with respect to the Registration
Statement or any amendment thereto and promptly provide the Holder true and
complete copies of all correspondence from and to the Commission relating to
the Registration Statement; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration
Statement during the applicable period in accordance with the intended
methods of disposition
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by the Holders thereof set forth in the Registration Statement as so amended
or in such Prospectus as so supplemented.
(c) Notify the Holder of Registrable Securities to be sold
and any Special Counsel promptly (and, in the case of (i)(A) below, not less
than three (3) Business Days prior to such filing) and (if requested by any
such Person) confirm such notice in writing no later than three (3) Business
Days following the day (i)(A) when a Prospectus or any Prospectus supplement
or post-effective amendment to the Registration Statement is proposed to be
filed; (B) when the Commission notifies the Company whether there will be a
"review" of such Registration Statement and whenever the Commission comments
in writing on such Registration Statement and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission or any other Federal
or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any Proceeding for such purpose; and (v) of the occurrence of any event that
makes any statement made in the Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement, Prospectus or other documents so that, in the case of
the Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The Company shall promptly furnish to Special Counsel,
without charge, (i) any correspondence from the Commission or the
Commission's staff to the Company or its representatives relating to any
Registration Statement and (ii) promptly after the same is prepared and filed
with the Commission, a copy of any written response to the correspondence
received from the Commission.
(d) Use its commercially reasonable best efforts to avoid
the issuance of, or, if issued, obtain the withdrawal of, (i) any order
suspending the effectiveness of the Registration Statement or (ii) any
suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any U.S. jurisdiction, at the earliest
practicable moment.
(e) If requested by the Holder, (i) promptly incorporate in
a Prospectus supplement or post-effective amendment to the Registration
Statement such information as the Company reasonably agrees should be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(f) Furnish to the Holder and any Special Counsel, without
charge, at least one conformed copy of each Registration Statement and each
amendment thereto, including
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financial statements and schedules, all documents incorporated or deemed to
be incorporated therein by reference, and all exhibits to the extent
requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with
the Commission.
(g) Promptly deliver to the Holder and any Special Counsel,
without charge, as many copies of the Registration Statement, Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of such Prospectus and each amendment or
supplement thereto by the selling Holder in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its commercially reasonable best efforts to register or qualify or
cooperate with the selling Holders and any Special Counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
the Holder reasonably requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by a Registration Statement; PROVIDED, HOWEVER, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would subject it
to general service of process in any such jurisdiction where it is not then
so subject or subject the Company to any tax in any such jurisdiction where
it is not then so subject.
(i) Cooperate with the Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to be sold pursuant to a Registration Statement and to enable such
Registrable Securities to be in such denominations and registered in such
names as the Holder may request at least two (2) Business Days prior to any
sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by
Section 3(c)(v), promptly prepare a supplement or amendment, including a
post-effective amendment, to the Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain 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, in the light of the circumstances under which they were
made, not misleading.
(k) Use its commercially reasonable best efforts to cause
all Registrable Securities relating to such Registration Statement to be
listed on the NYSE and any other securities exchange, quotation system,
market or over-the-counter bulletin board, if any, on which the same
securities issued by the Company are then listed as and when required
pursuant to the Purchase Agreement.
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(l) Comply in all material respects with all applicable
rules and regulations of the Commission and make generally available to its
security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 not later than forty-five (45) days
after the end of any twelve (12) month period (or ninety (90) days after the
end of any twelve (12) month period if such period is a fiscal year)
commencing on the first day of the first fiscal quarter of the Company after
the effective date of the Registration Statement, which statement shall
conform to the requirements of Rule 158.
(m) Require the Holder to furnish to the Company
information regarding such Holder and the distribution of such Registrable
Securities as is required by law to be disclosed in the Registration
Statement, and the Company may exclude from such registration the Registrable
Securities of the Holder of it fails to furnish such information within a
reasonable time prior to the filing of each Registration Statement,
supplemented Prospectus and/or amended Registration Statement.
If the Registration Statement refers to the Holder by name
or otherwise as the holder of any securities of the Company, then the Holder
shall have the right to require (if such reference to the Holder by name or
otherwise is not required by the Securities Act or any similar federal
statute then in force) the deletion of the reference to the Holder in any
amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
The Holder covenants and agrees that (i) it will not sell
any Registrable Securities under the Registration Statement until it has
received copies of the Prospectus as then amended or supplemented as
contemplated in Section 3(g) and notice from the Company that such
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(c) and (ii) it and its officers,
directors or Affiliates, if any, will comply with the prospectus delivery
requirements of the Securities Act as applicable to them in connection with
sales of Registrable Securities pursuant to the Registration Statement.
The Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence
of any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v) or 3(n), it will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until the Holder's
receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement contemplated by Section 3(j), or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information
regarding the Company which the Company's Board of Directors (the "BOARD")
reasonably determines not to be in the Company's best interest to disclose
and which the Company is not otherwise required to disclose, or (ii) there is
a significant business opportunity (including, but not limited to, the
acquisition or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or other similar
transaction) available to the Company which the Board reasonably determines
not to be in the Company's best interest to disclose and which the Company
would be
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required to disclose under the Registration Statement, then, for the period
of 180 days after the date the Registration Statement has been declared
effective by the Commission (the "PERIOD"), the Company may suspend
effectiveness of a registration statement and suspend the sale of Registrable
Securities under a Registration Statement for a period not to exceed thirty
(30) consecutive days, provided that the Company may not suspend its
obligation during the Period for more than sixty (60) days in the aggregate
(each, a "BLACKOUT PERIOD"); PROVIDED, HOWEVER, that no such suspension shall
be permitted for consecutive thirty (30) day periods, arising out of the same
set of facts, circumstances or transactions.
(o) Within two (2) Business Days after the Registration
Statement which includes the Registrable Securities is ordered effective by
the Commission, the Company shall deliver, and shall cause legal counsel for
the Company to deliver, to the transfer agent for such Registrable Securities
(with copies to the Holder whose Registrable Securities are included in such
Registration Statement) confirmation that the Registration Statement has been
declared effective by the Commission in the form attached hereto as EXHIBIT A.
4. REGISTRATION EXPENSES
All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be
borne by the Company whether or not the Registration Statement is filed or
becomes effective and whether or not any Registrable Securities are sold
pursuant to the Registration Statement. The fees and expenses referred to in
the foregoing sentence shall include, without limitation the following: (i)
all registration and filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made with the NYSE and
each other securities exchange or market on which Registrable Securities are
required hereunder to be listed, (B) with respect to filings required to be
made with the Commission, and (C) in compliance with state securities or Blue
Sky laws), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is requested by the holders of a majority of
the Registrable Securities included in the Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and (v) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement, including, without limitation,
the Company's independent public accountants (including the expenses of any
comfort letters or costs associated with the delivery by independent public
accountants of a comfort letter or comfort letters). In addition, the Company
shall be responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange as required hereunder.
5. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold
harmless the Purchaser, its permitted assignees, officers, directors, agents,
brokers (including brokers who offer and sell Registrable
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Securities as principal as a result of a pledge or any failure to perform
under a margin call of Common Stock), investment advisors and employees, each
Person who controls any such Purchaser or permitted assignee (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such
controlling Person, and the respective successors, assigns, estate and
personal representatives of each of the foregoing, to the fullest extent
permitted by applicable law, from and against any and all claims, losses,
damages, liabilities, penalties, judgments, costs (including, without
limitation, costs of investigation) and expenses (including, without
limitation, reasonable attorneys' fees and expenses) (collectively,
"LOSSES"), arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, the
final Prospectus, as supplemented or amended, if applicable, or arising out
of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in
the light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that such untrue statements or
omissions are based solely upon information regarding the Holder furnished in
writing to the Company by the Holder expressly for use therein, which
information was reviewed and expressly approved by the Holder or Special
Counsel expressly for use in the Registration Statement, such Prospectus or
such form of Prospectus or in any amendment or supplement thereto or as a
result of the failure of the Holder to deliver a Prospectus, as amended or
supplemented, to a purchaser in connection with an offer or sale. The Company
shall notify the Holder promptly of the institution, threat or assertion of
any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
an Indemnified Party (as defined in Section 5(c) hereof) and shall survive
the transfer of the Registrable Securities by the Holder.
(b) INDEMNIFICATION BY PURCHASER. Purchaser and its
permitted assignees shall, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, and the respective
successors, assigns, estate and personal representatives of each of the
foregoing, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, arising out of or relating to any untrue
statement of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or arising out of or relating to any
omission of a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in the light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in or omitted from any
information so furnished in writing by the Holder or the Special Counsel to
the Company specifically for inclusion in the Registration Statement or such
Prospectus and that such information was reasonably relied upon by the
Company for use in the Registration Statement, such Prospectus or such form
of prospectus or to the extent that such information relates to the Holder or
the Holder's proposed method of distribution of Registrable Securities and
was reviewed and expressly approved in writing by the Holder expressly for
use in the Registration Statement, such Prospectus or such form of Prospectus
Supplement. Notwithstanding anything to the contrary contained herein, the
Holder shall be liable under this
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Section 5(b) for only that amount as does not exceed the net proceeds to the
Holder as a result of the sale of Registrable Securities pursuant to such
Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
Proceeding shall be brought or asserted against any Person entitled to
indemnity pursuant to Section 5(a) or 5(b) hereunder (an "INDEMNIFIED
PARTY"), such Indemnified Party promptly shall notify the Person from whom
indemnity is sought (the "INDEMNIFYING PARTY) in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment
of all fees and expenses incurred in connection with defense thereof;
PROVIDED, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant
to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have materially
and adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (1) the Indemnifying Party has
agreed in writing to pay such fees and expenses; or (2) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding and
to employ counsel reasonably satisfactory to such Indemnified Party in any
such Proceeding; or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel reasonably acceptable to the Indemnifying Party that a conflict of
interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, which consent shall not unreasonably be
withheld, effect any settlement of any pending Proceeding in respect of which
any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All reasonable fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within twenty (20) Business Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; PROVIDED,
that the Indemnifying Party may require such Indemnified Party to undertake
to reimburse all such fees and expenses to the extent it is finally
judicially determined that such Indemnified Party is not entitled to
indemnification hereunder or pursuant to applicable law).
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(d) CONTRIBUTION. If a claim for indemnification under
Section 5(a) or 5(b) is unavailable to an Indemnified Party because of a
failure or refusal of a governmental authority to enforce such
indemnification in accordance with its terms (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying,
Party or Indemnified Party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys' or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the
extent such party would have been indemnified for such fees or expenses if
the indemnification provided for in under Section 5(a) or 5(b) was available
to such party in accordance with its terms. Notwithstanding anything to the
contrary contained herein, the Holder shall be liable or required to
contribute under this Section 5(d) for only that amount as does not exceed
the net proceeds to the Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the immediately
preceding paragraph. 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.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
6. RULE 144.
As long as the Holder owns Registrable Securities, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by
the Company after the date hereof pursuant to Section 13(a) or 15(d) of the
Exchange Act and to promptly furnish the Holders with true and complete
copies of all such filings. As long as the Holder owns Registrable
Securities, if the Company is not required to file reports pursuant to
Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to
the Holders and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly financial
statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act, as well as any other information required thereby,
in the time period that such filings would have been required to have been
made under the Exchange Act. The
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Company further covenants that it will take such further action as the
Holder may reasonably request, all to the extent required from time to time
to enable the Holder to sell Common Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act, including providing any legal opinions
of counsel to the Company referred to in the Purchase Agreement. Upon the
request of any Holder, the Company shall deliver to such Holder a written
certification of a duly authorized officer as to whether it has complied with
such requirements.
7. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company or by
the Holder, of any of their obligations under this Agreement, the Holder or
the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law and under this Agreement, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and the Holder agree that monetary damages would not
provide adequate compensation for any losses incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any
of its subsidiaries has, as of the date hereof entered into and currently in
effect, nor shall the Company or any of its Affiliates, on or after the date
of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. Without limiting the
generality of the foregoing, without the written consent of the Holder, the
Company shall not grant to any Person the right to request the Company to
register any securities of the Company under the Securities Act if the rights
so granted are inconsistent with the rights granted to Holders set forth
herein, or otherwise prevent the Company with complying with all of its
obligations hereunder.
(c) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor
any of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in the Registration Statement.
(d) FAILURE TO FILE REGISTRATION STATEMENT AND OTHER
EVENTS. The Company and the Holders agree that the Holders will suffer
damages if the Registration Statement is not filed on or prior to the Filing
Date and not declared effective by the Commission on or prior to the
Effectiveness Date and maintained in the manner contemplated herein during
the Effectiveness Period or if certain other events occur. The Company and
the Holders further agree that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, if (i) the Registration
Statement is not filed on or prior to the Filing Date, or is not declared
effective by the Commission on or prior to the Effectiveness Date (or in the
event an additional Registration Statement is filed because the actual number
of Common Shares exceeds the number of shares of Common Stock initially
registered is not filed and declared effective within the time periods set
forth in Section 2), or (ii) the Company fails to file with the Commission a
request for acceleration in accordance with Rule 12dl-2 promulgated under the
Exchange Act within five (5) Business Days of the date that the Company is
notified (orally or in
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writing, whichever is earlier) by the Commission that a Registration
Statement will not be "reviewed," or not subject to further review, or (iii)
the Registration Statement is filed with and declared effective by the
Commission but thereafter ceases to be effective as to all Registrable
Securities at any time during the Period, without being succeeded within a
reasonable period by a subsequent Registration Statement filed with and
declared effective by the Commission, or (iv) during the Period, trading in
the Common Stock shall be suspended for any reason for more than three (3)
Business Days in the aggregate, or (v) the Company has breached Section 3(n)
of this Agreement (any such failure or breach being referred to as an
"EVENT"), the Company shall pay as liquidated damages for such failure and
not as a penalty (the "LIQUIDATED DAMAGES") to the Holder an amount equal to
two percent (2%) of the purchase price paid by the Holder for all Registrable
Securities then held by the Holder for each thirty (30) day period, pro rated
for any period less than thirty (30) days, following the Event until the
applicable Event has been cured. The combined aggregate Liquidated Damages
payable by the Company for delayed filing of the registration statement or
delayed effectiveness beyond the Effectiveness Date, in the case of clause
(i) of this Section 7(d), shall not exceed sixteen percent (16%) of the
purchase price paid by the Purchaser for the Registrable Securities and
Liquidated Damages shall cease to accrue after the date on which Purchaser
would be able to sell all such Registrable Securities held by it without
restriction pursuant to Rule 144(k) promulgated under the Securities Act.
Payments to be made pursuant to this Section 7(d) shall be due and payable
immediately upon demand at the option of the Holders in cash. The parties
agree that the Liquidated Damages represent a reasonable estimate on the part
of the parties, as of the date of this Agreement, of the amount of damages
that may be incurred by the Holders if the Registration Statement is not
filed on or prior to the Filing Date or has not been declared effective by
the Commission on or prior to the Effectiveness Date and maintained in the
manner contemplated herein during the Effectiveness Period or if any other
Event as described herein has occurred.
(e) CONSENT TO JURISDICTION.
(i) Both the Company and the Purchaser (i) hereby
irrevocably submit to the jurisdiction of the United States District Court
for the Southern District of New York and the courts of the State of New York
located in New York county for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement or the Purchase Agreement and
(ii) hereby waive, and agree not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Both the Company and the Purchaser consent to process being served
in any such suit, action or proceeding by mailing a copy thereof to such
party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this Section 7(e) shall affect or
limit any right to serve process in any other manner permitted by law.
(f) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and the Purchaser.
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(g) NOTICES. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earlier of (i) the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile telephone number specified for notice prior to 5:00 p.m.,
eastern standard time, on a Business Day, (ii) the first Business Day after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified for notice later than
5:00 p.m., eastern time, on any date and earlier than 11:59 p.m., eastern
time, on such date, (iii) the Business Day following the date of mailing, if
sent by nationally recognized overnight courier service or (iv) actual
receipt by the party to whom such notice is required to be given.
(x) if to the Company:
Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, CA 92503
Tel. No.: (909) 351-3500
Fax No.: (909) 351-3690
Attn: Forrest D. Theobald, General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
4 Park Plaza
Irvine, CA 92614
Tel. No.: (949) 451-3802
Fax No.: (949) 451-4220
Attn: Mark W. Shurtleff
(y) if to the Purchaser:
Acqua Wellington Private Placement Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Ltd.
Montague Sterling Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Tel. No.: (242) 394-2700
Fax No.: (242) 394-9667
Attn: Mr. Anthony L. M. Inder Rieden
with a copy to:
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Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
Tel. No.: (212) 704-6000
Fax No.: (212) 704-6288
Attn: Christopher S. Auguste
or to such other address or addresses or facsimile number or numbers as any
such party may most recently have designated in writing to the other parties
hereto by such notice.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and
permitted assigns and shall inure to the benefit of the Holder and its
successors and assigns. Neither the Purchaser nor the Company may assign this
Agreement or any of its respective rights or obligations hereunder without
the prior written consent of the other party. Each Purchaser may assign its
rights hereunder in the manner and to the Persons as permitted under the
Purchase Agreement with the prior consent of the Company, which consent shall
not be unreasonably withheld .
(i) ASSIGNMENT OF REGISTRATION RIGHTS. The rights of the
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall
be assignable by each Holder to any transferee of the Holder of all or a
portion of the shares of Registrable Securities if: (i) the Holder agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after
such assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect
to which such registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of such
securities by the transferee or assignees is restricted under the Securities
Act and applicable state securities laws, (iv) at or before the time the
Company receives the written notice contemplated by clause (ii) of this
Section, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions of this Agreement, and (v) such transfer shall
have been made in accordance with the applicable requirements of the Purchase
Agreement and shall be for no less than 50% of the Registrable Securities. In
addition, the Holder shall have the right to assign its rights hereunder to
any other Person with the prior written consent of the Company, which consent
shall not be unreasonably withheld. The rights to assignment shall apply to
the Holder (and to subsequent) successors and assigns. In the event of an
assignment pursuant to this Section 7(i), the Purchaser shall pay all
incremental costs and expenses incurred by the Company in connection with
filing a Registration Statement (or an amendment to the Registration
Statement) to register the shares of Registrable Securities assigned to any
assignee or transferee of the Purchaser.
(j) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be
an original and, all of which taken together shall constitute one and the
same Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
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party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law thereof. This Agreement shall not be
interpreted or construed with any presumption against the party causing this
Agreement to be drafted.
(l) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) TERMINATION. This Agreement shall terminate on the date
on which all remaining Registrable Securities may be sold without restriction
pursuant to Rule 144(k) of the Securities Act.
(n) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(o) HEADINGS. The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed by their respective
authorized persons as of the date first indicated above.
FLEETWOOD ENTERPRISES, INC.
By: /s/ FORREST D. THEOBALD
------------------------------------
Name: Forrest D. Theobald
Title: Vice President
ACQUA WELLINGTON PRIVATE PLACEMENT
FUND, LTD.
By: /s/ RICHARD COLPRON
------------------------------------
Name: Richard Colpron
Title: Vice President
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EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
EquiServe
150 Royall Street
Mail Stop 45-02-62
Canton, MA 02021
Attn: Ms. Therese Collins
Re: FLEETWOOD ENTERPRISES, INC.
Ladies and Gentlemen:
We are counsel to Fleetwood Enterprises, Inc., a Delaware
corporation (the "COMPANY"), and have represented the Company in connection
with that certain Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of
October __, 2001, by and between the Company and the purchaser (the
"Purchaser" and the "Holder") named therein pursuant to which the Company
issued to the Purchaser shares (the "COMMON SHARES") of its Common Stock,
$1.00 par value (the "COMMON STOCK"). Pursuant to the Purchase Agreement, the
Company has also entered into a Registration Rights Agreement with the
Purchaser (the "REGISTRATION RIGHTS AGREEMENT"), dated as of October __,
2001, pursuant to which the Company agreed, among other things, to register
the Registrable Securities (as defined in the Registration Rights Agreement),
including the Common Shares, under the Securities Act of 1933, as amended
(the "1933 ACT"). In connection with the Company's obligations under the
Registration Rights Agreement, on ________________, 2001, the Company filed a
Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION
STATEMENT") with the Securities and Exchange Commission (the "SEC") relating
to the resale of the Registrable Securities which names the Holder as a
selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at
[ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no
knowledge, after telephonic inquiry of a member of the SEC's staff, that any
stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC
and, accordingly, the Registrable Securities are available for resale under
the 1933 Act in the manner specified in, and pursuant to the terms of the
Registration Statement.
Very truly yours,
By:
cc: Acqua Wellington Private Placement Fund, Ltd.
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