EXHIBIT 10.10
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") dated as of September 18, 1996, is made by and among DeCrane
Aircraft Holdings, Inc., an Ohio corporation (the "Company"), and the several
parties named in Schedule I hereto (the "Shareholders").
PRELIMINARY STATEMENTS:
A. The Shareholders hold the amounts of Common Shares, without par value
("Common Shares"), Warrants to purchase Common Shares ("Common Warrants"),
Series A Convertible Preferred Shares, without par value ("Series A Shares"),
Series B Convertible Preferred Shares, without par value ("Series B Shares"),
Warrants to purchase Series B Shares (the "Series B Warrants"), Series C
Convertible Preferred Shares, without par value ("Series C Shares"), Series D
Convertible Preferred Shares, without par value (the "Series D Shares"), Series
E Convertible Preferred Shares, without par value (the "Series E Shares") and
the other securities set forth opposite their respective names on Schedule I
hereto (the Series A Shares, Series B Shares, Series C Shares, Series D Shares
and Series E Shares, collectively the "Preferred Stock") (the Common Warrants
and Series B Warrants, collectively the "Warrants").
B. The Company and certain of the parties hereto executed that certain
Amended and Restated Registration Rights Agreement dated as of October 15, 1991,
as amended (the "Amended Registration Rights Agreement"), that certain Second
Amended and Restated Registration Rights Agreement dated as of November 2, 1994
(the "Second Amended Registration Rights Agreement"), and that certain Third
Amended and Restated Registration Rights Agreement dated as of February 20, 1996
(the "Third Amended and Restated Registration Rights Agreement"), governing,
among other things, certain matters with respect to the registration of the
shares of capital stock of the Company.
C. The Company and the parties hereto desire to amend and restate the
Third Amended and Restated Registration Rights Agreement in its entirety by the
execution of this Agreement.
AGREEMENT:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
"ADDITIONAL RESTRICTED SECURITIES" shall mean, the Common Warrants and
shares of Common Stock now held or hereafter acquired by Internationale
Nederlanden (U.S.)
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Capital Corporation, a Delaware corporation ("ING"), and by The Provident
Bank, a banking association organized under the laws of the State of Ohio
("Provident"), and ING's and Provident's successors and assigns.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Shares as constituted as of the
date of this Agreement, and Common Shares issuable upon exercise of the
Common Warrants.
"CONVERSION SHARES" shall mean shares of Common Stock issued upon
conversion of the Preferred Stock and Common Stock issued upon conversion
of the Series B Shares issuable upon exercise of the Series B Warrants.
"ELECTRA RESTRICTED SECURITIES" shall mean, collectively, Common
Shares, Common Warrants, Series B Warrants and Preferred Stock now held or
hereafter acquired by Electra Investment Trust PLC, a corporation organized
under the laws of the United Kingdom ("EIT") and Electra Associates, Inc.
("Electra") and EIT's and Electra's successors and assigns.
"INITIAL PUBLIC OFFERING" shall mean the closing of the initial
underwritten public offering for Common Shares of the Company pursuant to a
registration statement under the Securities Act.
"NASSAU RESTRICTED SECURITIES" shall mean, collectively, Common
Shares, Common Warrants, Series D Shares and Series E Shares now held or
hereafter acquired by Nassau Capital Partners L.P., a Delaware limited
partnership ("Nassau Capital") and NAS Partners I L.L.C., a Delaware
limited liability company ("NAS") and Nassau Capital's and NAS's successors
and assigns.
"PRIMARY RESTRICTED STOCK" shall mean, collectively, the Preferred
Stock, the Common Stock and those Common Warrants which are not Electra
Restricted Securities, Nassau Restricted Securities or Additional
Restricted Securities. For purposes hereof, "Preferred Stock" also shall
include the Series B Warrants and the Series B Shares issuable upon
exercise of the Series B Warrants.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 8 hereof.
"RESTRICTED STOCK" shall mean, collectively, the Electra Restricted
Securities, Nassau Restricted Securities, the Primary Restricted Stock, the
Additional Restricted Securities and all Common Shares issuable upon
exercise of
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options to purchase the same granted hereafter to R. Jack DeCrane.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SECURITIES PURCHASE AGREEMENT" shall mean the Securities Purchase
Agreement of even date herewith among the Company, Nassau Capital, NAS and
EIT.
"SELLING EXPENSES" shall mean the expenses so described in Section 8
hereof.
2. RESTRICTIVE LEGEND. Each instrument representing the Restricted
Stock, except as provided in Section 3 hereof, shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of
any Restricted Stock (other than under the circumstances described in Section 4,
5 or 6 hereof), the holder thereof shall give written notice to the Company of
its intention to effect such transfer. Each such notice shall describe the
manner of the proposed transfer and, if requested by the Company, shall be
accompanied by an opinion of counsel reasonably satisfactory to the Company to
the effect that the proposed transfer of the Restricted Stock, as the case may
be, may be effected without registration under the Securities Act. In the event
that (but only in the event that) the holder of such Restricted Stock gives such
written notice and provides such opinion, if requested by the Company, the
holder of such Restricted Stock shall be entitled to transfer such Restricted
Stock in accordance with the terms of its notice, PROVIDED, HOWEVER, that no
such opinion or documentation shall be required if the notice pertains to
distribution by any holder pursuant to subpart (b) or (c) of Section 2 of that
certain Fourth Amended and Restated Shareholders Agreement of even date herewith
between the parties hereto (the "Shareholders Agreement"). Each instrument for
Restricted Stock transferred as above provided shall bear the legend set forth
in Section 2, except that such instrument shall not bear such legend if (i) such
transfer is in accordance with the provisions of Rule 144 (or any other rule
permitting public sale without registration under the Securities Act) or (ii)
the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to
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transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of Restricted Stock
shall terminate as to any particular shares of Restricted Stock when such shares
shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration statement concerning
such shares.
4. REQUIRED REGISTRATION.
(a) At any time, (i) the holders of Electra Restricted Securities
constituting at least a majority of the total Electra Restricted Securities
outstanding at such time (treating for the purpose of such computation (A) the
holders of Preferred Stock as the holders of the Conversion Shares then issuable
upon conversion of such Preferred Stock, (B) the holders of Common Warrants if
then issued and outstanding, as the holders of the shares of Common Stock
issuable upon exercise of the Warrant, and (C) the holders of Series B Warrants
as the holders of the shares of Common Stock then issuable upon exercise of the
Series B Warrant and conversion of the Series B Shares issuable thereby), or
(ii) the holders of Nassau Restricted Securities constituting at least a
majority of the total Nassau Restricted Securities outstanding at such time
(treating for the purpose of such computation (A) the holders of Series D Shares
as the holders of the Conversion Shares then issuable upon conversion of such
Series D Shares, (B) the holders of Series E Shares as the holders of the
Conversion Shares then issuable upon conversion of such Series E Shares and (C)
the holders of Common Warrants if then issued and outstanding, as the holders of
the shares of Common Stock issuable upon exercise of the Warrant), or (iii) the
holders of Primary Restricted Stock constituting at least a majority of the
total Primary Restricted Stock outstanding at such time (treating for the
purpose of such computation (A) the holders of Preferred Stock as the holders of
the Conversion Shares then issuable upon conversion of such Preferred Stock, (B)
the holders of Common Warrants if then issued and outstanding, as the holders of
the shares of Common Stock issuable upon exercise of the Warrant, and (C) the
holders of Series B Warrants as the holders of the shares of Common Stock then
issuable upon exercise of the Series B Warrant and conversion of the Series B
Shares issuable thereby) may request the Company to register under the
Securities Act all or any portion of the Nassau Restricted Securities, Electra
Restricted Securities or Primary Restricted Stock, as the case may be, held by
such requesting holder or holders for sale in the manner specified in such
notice, PROVIDED, HOWEVER, that the only securities which the Company shall be
required to register pursuant hereto shall be shares of Common Stock, PROVIDED,
FURTHER, HOWEVER, that, in any underwritten public offering contemplated by
Section 4, 5 or 6 hereof, other holders of Preferred Stock or Warrants shall be
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entitled to sell such Preferred Stock or Warrants to the underwriters for
conversion or exchange and the sale of the shares of Common Stock issued upon
such conversion; PROVIDED further, HOWEVER, that if the Warrants are to be sold
to the underwriters, there shall be deducted from the proceeds due to the
selling holder the aggregate exercise price required to be paid by such holder
upon exercise of the Warrants.
(b) Promptly following receipt of any notice under this Section 4,
the Company shall immediately notify (i) any holders of Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Stock from whom
notice has not been received and (ii) any other holders of Restricted Stock, and
shall use its best efforts to register under the Securities Act, for public sale
in accordance with the method of disposition specified in such notice from
requesting holders, the number of shares of Restricted Stock specified in such
notice (and in any notices received from other holders within 20 days after
their receipt of such notice from the Company). If such method of disposition
shall be an underwritten public offering, the Company may designate the managing
underwriter of such offering, subject to the approval of the selling holders of
Nassau Restricted Securities, Electra Restricted Securities or Primary
Restricted Stock, as the case may be, requesting registration under the
Securities Act, which approval shall not be unreasonably withheld. The Company
shall only be obligated to register Nassau Restricted Securities or Primary
Restricted Stock pursuant to this Section 4 on three occasions and shall only be
obligated to register Electra Restricted Securities pursuant to this Section 4
on two occasions. Notwithstanding anything to the contrary contained herein,
the obligation of the Company under this Section 4 shall be deemed satisfied
only when a registration statement covering all shares of Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Stock specified
in notices received as aforesaid, for sale in accordance with the method of
disposition specified by the requesting holder, shall have become effective.
(c) The number of shares of Restricted Stock to be included in such
an underwriting may be reduced (PRO RATA among the requesting holders based upon
the number of shares so requested to be registered, treating for purposes of
such computation (i) the holders of Preferred Stock as the holders of the
Conversion Shares then issuable upon conversion of such. Preferred Stock, (ii)
the holders of Common Warrants, if then issued and outstanding, as the holders
of the shares of Common Stock issuable upon exercise of the Common Warrants, and
(iii) the holder of the Series B Warrants, if then outstanding, as the holder of
the shares of Common Stock then issuable upon exercise of the Series B Warrant
and conversion of the Series B Shares issuable thereby) if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold therein; PROVIDED,
HOWEVER, if a demand registration is a request
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by holders of Nassau Restricted Securities, Electra Restricted Securities or
Primary Restricted Securities pursuant to subpart (a) of this Section 4,to
register and sell Nassau Restricted Securities, Electra Restricted Securities or
Primary Restricted Securities, as the case may be, in the Initial Public
Offering, and the managing underwriters advise the Company in writing that in
their opinion the number of (A) Nassau Restricted Securities, Electra Restricted
Securities or Primary Restricted Securities, as the case may be, requested to be
included in the offering, (B) securities desired by the Company to be included
in such offering and pro rata among the Holders of Nassau Restricted Securities
or Electra Restricted Securities, as the case may be, on the basis of the amount
of Nassau Restricted Securities or Electra Restricted Securities, respectively,
owned by each such holder, and (C) if permitted hereunder, other securities
requested to he included in such offering, exceeds the number of securities
which can be sold therein without adversely affecting the marketability of the
offering, there shall be included in such registration (i) first, the securities
the Company proposes to sell,(ii) second, the Nassau Restricted Securities or
Electra Restricted Securities, as the case may be, requested .to be included in
such registration, and PRO RATA among the holders of Nassau Restricted
Securities or Electra Restricted Securities, as applicable, on the basis of the
amount of Nassau Restricted Securities or Electra Restricted Securities, as the
case may be, owned by each such holder, or PRO RATA among the holders of Nassau
Restricted Securities and Electra Restricted Securities if such demand
registration is a request by holders of Nassau Restricted Securities and holders
of Electra Restricted Securities pursuant to subpart (a) of this Section 4 and
(iii) third, other securities requested to be included in such registration by
holders of the Restricted Stock; PROVIDED, FURTHER, HOWEVER, if a demand
registration is a request by holders of Nassau Restricted Securities, Electra
Restricted Securities or Primary Restricted Securities pursuant to subpart (a)
of this Section 4 to register and sell Nassau Restricted Securities, Electra
Restricted Securities or Primary Restricted Securities, as the case may be,
subsequent to the Initial Public Offering, and the managing underwriters advise
the Company in writing that in their opinion the number of (A) Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Securities, as
applicable, requested to be included in the offering, (B) securities desired by
the Company to be included in such offering and PRO RATA among the Holders of
Nassau Restricted Securities or Electra Restricted Securities, as the case may
be, on the basis of the amount of Nassau Restricted Securities or Electra
Restricted Securities, as applicable, owned by each such holder, and (C) if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of securities which can be sold therein without adversely
affecting the marketability of the offering, there shall be included in such
registration (i) first, the Nassau Restricted Securities or Electra Restricted
Securities, as the case may be, requested to be included in such registration,
PRO RATA among the holders of
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such Nassau Restricted Securities or Electra Restricted Securities, as
applicable, on the basis of the amount of Nassau Restricted Securities or
Electra Restricted Securities, as the case may be, owned by each holder, or PRO
RATA among the holders of Nassau Restricted Securities and Electra Restricted
Securities if such demand registration is a request by holders of Nassau
Restricted Securities and Electra Restricted Securities pursuant to subpart (a)
of this Section 4 (ii) second, the securities the Company proposes to sell, and
(iii) third, other securities requested to be included in such registration.
(d) Subject to subpart (c) of this Section 4, the Company shall be
entitled to include in any registration statement referred to in this Section 4,
for sale in accordance with the method of disposition specified by the
requesting holders, shares of Common Stock to be sold by the Company for its own
account, except as and to the extent that, in the opinion of the managing
underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would adversely affect the marketing of the Nassau
Restricted Securities, Electra Restricted Securities or Primary Restricted Stock
to be sold. Except as provided in this paragraph (d), the Company will not
effect any other registration of its Common Stock, whether for its own account
or that of other holders, from the date of receipt of a notice from requesting
holders pursuant to this Section 4 until the completion of the period of
distribution of the registration contemplated thereby.
(e) Notwithstanding anything to the contrary contained in this
Section 4, the Company shall not be required to take any action to effect any
registration pursuant to this Section 4:
(i) if in the case of the Initial Public Offering, the
securities covered by such registration statement will not have an aggregate
offering price of at least $25,000,000.00;
(ii) if the Company intends in good faith to file a registration
statement pertaining to an underwritten public offering of securities for the
account of the Company within 90 days after receipt of a notice under Section
4(a), and the Company so notifies the requesting holder of its intention in
accordance with Section 6; or
(iii) if the holders of a majority of the Additional Restricted
Securities have requested pursuant to Section 5 that the Company file a
registration statement pertaining to an underwritten public offering of
securities at any time within 180 days prior to the receipt by the Company of a
notice under Section 4(a).
5. ADDITIONAL REQUIRED REGISTRATION.
(a) At any time after such date as the Company has
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completed a public offering of shares of Common Stock pursuant to an effective
registration statement filed under the Securities Act, the holders of the
Additional Restricted Securities constituting at least a majority of the total
Additional Restricted Securities outstanding at such time (treating for the
purpose of such computation the holders of the Additional Restricted Securities
as the holders of the shares of Common Stock issuable upon exercise of the
Additional Restricted Securities) may request the Company to register under the
Securities Act all or any portion of the Additional Restricted Securities held
by such requesting holder or holders for sale in the manner specified in such
notice, PROVIDED, HOWEVER, that the only securities which the Company shall be
required to register pursuant hereto shall be shares of Common Stock, PROVIDED,
FURTHER, HOWEVER, that, in any underwritten public offering contemplated by
Section 4, 5 or 6 hereof, the holders of Additional Restricted Securities shall
be entitled to sell such Additional Restricted Securities to the underwriters
for conversion or exchange and the sale of the shares of Common Stock issued
upon such conversion; PROVIDED, FURTHER, HOWEVER, that if the Additional
Restricted Securities are to be sold to the underwriters, there shall be
deducted from the proceeds due to the selling holder the aggregate exercise
price required to be paid by such holder upon exercise of the Additional
Restricted Securities.
(b) Promptly following receipt of any notice under this Section 5,
the Company shall immediately notify (i) any holders of Additional Restricted
Securities from whom notice has not been received and (ii) any other holders of
Restricted Stock, and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Restricted Stock specified in such notice (and in any notices received from
other holders within 20 days after their receipt of such notice from the
Company). If such method of disposition shall be an underwritten public
offering, the Company may designate the managing underwriter of such offering,
subject to the approval of the selling holders of Additional Restricted
Securities, which approval shall not be unreasonably withheld. The Company shall
be obligated to register additional Restricted Securities pursuant to this
Section 5 on two occasions only. Notwithstanding anything to the contrary
contained herein, the obligation of the Company under this Section 5 shall he
deemed satisfied only when a registration statement covering all of the shares
of Common Stock issuable upon exchange of the Additional Restricted Securities
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the requesting holder, shall have become
effective.
(c) The number of shares of Restricted Stock to be included in such
an underwriting may be reduced (PRO RATA among the requesting holders based upon
the number of shares so requested to be registered, treating for purposes of
such
9
computation (i) the holders of Preferred Stock as the holders of the Conversion
Shares then issuable upon conversion of such Preferred Stock, (ii) the holders
of Common Warrants, if then issued and outstanding, as the holders of the shares
of Common Stock issuable upon exercise of the Common Warrants, and (iii) the
holder of the Series B Warrants, if then outstanding, as the holder of the
shares of Common Stock then issuable upon exercise of the Series B Warrant and
conversion of the Series B Shares issuable thereby) if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold therein.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 5, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Additional Restricted Securities to be sold. Except as
provided in this paragraph (d), the Company will not effect any other
registration of its Common Stock, whether for its own account or that of other
holders, from the date of receipt of a notice from requesting holders pursuant
to this Section 5 until the completion of the period of distribution of the
registration contemplated thereby.
(e) Notwithstanding anything to the contrary contained in this
Section 5, the Company shall not be required to take any action to effect any
registration pursuant to this Section 5:
(i) if the Company intends in good faith to file a registration
statement pertaining to an underwritten public offering of securities for the
account of the Company within 90 days after receipt of a notice under Section
5(a), and the Company so notifies the requesting holder of its intention in
accordance with Section 6; or
(ii) if the holders of a majority of the Nassau Restricted
Securities, or the holders of a majority of the Electra Restricted Securities,
or the holders of a majority of the Primary Restricted Stock have pursuant to
Section 4 requested that the Company file a registration statement pertaining to
an underwritten public offering of securities at any time within 180 days prior
to the receipt by the Company of a notice under Section 5(a).
6. INCIDENTAL REGISTRATION. If the Company at any time (other than
pursuant to Section 4 or 5 hereof) proposes to register any of its Common Stock
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not
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available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention to do so. Upon the written request of any such holder,
given within 30 days after receipt of any such notice, to register any of its
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Restricted Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed, all
to the extent requisite to permit the sale or other disposition by the holder
(in accordance with its written request) of such Restricted Stock so registered.
In the event that any registration pursuant to this Section 6 shall be, in whole
or in part, an underwritten public offering of Common Stock, any request by a
holder pursuant to this Section 6 to register Restricted Stock shall specify
that either (i) such Restricted Stock is to be included in the underwriting on
the same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters under such registration or (ii) such Restricted Stock is to
be sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. The number of shares of Restricted Stock to
be included in such an underwriting may be reduced (PRO RATA among the
requesting holders based upon the number of shares so requested to be
registered, treating for purposes of such computation (A) the holders of
Preferred Stock as the holders of the Conversion Shares then issuable upon
conversion of such Preferred Stock, (B) the holders of Common Warrants, if then
issued and outstanding, as the holders of the shares of Common Stock issuable
upon exercise of the Common Warrants, and (C) the holder of the Series B
Warrants, if then outstanding, as the holder of the shares of Common Stock then
issuable upon exercise of the Series B Warrant and the conversion of the Series
B Shares issuable thereby) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold therein. Notwithstanding anything to the contrary
contained in this Section 6, in the event that there is a firm commitment
underwritten offering of securities of the Company pursuant to a registration
statement covering Restricted Stock and a selling holder of Restricted Stock
does not elect to sell such holder's Restricted Stock to the underwriters of the
Company's securities in connection with such offering, such holder shall refrain
from selling such Restricted Stock so registered pursuant to this Section 6
during the period of distribution of the Company's securities by such
underwriters and the period in which the underwriting syndicate participates in
the aftermarket; PROVIDED, HOWEVER, that such holder shall, in any event, be
entitled to sell such holder's Restricted Stock in connection with such
registration commencing on the 90th day after the effective date of such
registration statement.
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7. REGISTRATION PROCEDURES AND EXPENSES. (a) If and whenever the
Company is required by the provisions of Section 4, 5 or 6 hereof to use its
best efforts to effect the registration of any of the Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4 or 5 hereof, shall be on Form S 1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (i) above and to comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(iii) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(iv) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter, shall reasonably
request;
(v) immediately notify each seller under such registration
statement and each underwriter, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing; upon the occurrence of any such event, the Company shall, as
promptly as reasonably practicable, prepare a post effective amendment to the
registration statement or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to purchasers of the
Restricted Stock, the prospectus will not contain an untrue statement of a
material fact or omit
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to state any material fact necessary to make the statements therein not
misleading.
(vi) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock is
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such seller, stating
that such registration statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as to financial
statements contained therein), and (C) to such other effects as may reasonably
be requested by counsel for the underwriters or by such seller or its counsel,
and (ii) a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters and to such seller,
stating that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to the registration in respect of
which such letter is being given as such underwriters or seller may reasonably
request; and
(vii) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
(b) For purposes of paragraphs (i) and (ii) above and of Section 4(c)
hereof, the period of distribution of Restricted Stock in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all
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Restricted Stock covered thereby or nine months after the effective date
thereof.
(c) In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be necessary in order to assure compliance with federal and applicable
state securities laws.
(d) In connection with each registration pursuant to Section 4, 5 or
6 hereof covering an underwritten public offering, the Company and the selling
holders of Restricted Stock agree to enter into a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between major underwriters and companies of the Company's size
and investment stature, provided that such agreement shall not contain any such
provision applicable to the Company which is inconsistent with the provisions
hereof.
8. EXPENSES. (a) All expenses incurred by the Company in complying
with Sections 4, 5, 6 and 7 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, costs of insurance and fees and expenses of one counsel for the
sellers of Restricted Stock but excluding any Selling Expenses, are herein
called "Registration Expenses". All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock are herein called
"Selling Expenses".
(b) The Company will pay all Registration Expenses in connection with
each registration statement filed pursuant to Section 4, 5 or 6 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Section 4, 5 or 6 hereof shall be borne by the holders of Restricted Stock sold
pursuant to such registration statement, PRO RATA in proportion to the number of
securities of each such holder included in such registration.
9. INDEMNIFICATION. (a) In the event of a registration of any of
the Restricted Stock under the Securities Act pursuant to Section 4, 5 or 6
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock thereunder
and each other person, if any, who controls such seller or underwriter within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such
14
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 4,
5 or 6, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the Company will not be liable in any such case
if and to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by such
seller, such underwriter or such controlling person in writing specifically for
use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 4,
5 or 6, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, PROVIDED, HOWEVER, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such,
15
furnished in writing to the Company by such seller specifically for use in such
registration statement or prospectus, PROVIDED, FURTHER, HOWEVER, that the
liability of each seller hereunder shall not exceed the proceeds received by
such seller from the sale of Restricted Stock covered by such registration
statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 9. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 9 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected, PROVIDED, HOWEVER, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) Notwithstanding the foregoing, in any such action, any
indemnified party shall have the right to retain its own counsel, but the fees
and disbursements of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party shall have failed to retain counsel for
the indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
16
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. The
indemnifying party shall not, except with the consent of the indemnified party,
enter into any settlement that does not include as a term thereof an
unconditional release of the indemnified party from all liability with respect
to the applicable claim.
(e) If the indemnification provided for in the first two paragraphs
of this Section 9 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in such proportion as appropriate to reflect the relative
fault of the Company, on the one hand, and the sellers of such Restricted Stock,
on the other, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or actions as well as any other
relevant equitable considerations, including the failure to give the notice
required under such paragraphs, then the relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company, on the one
hand, or the sellers of such Restricted Stock, on the other hand, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the parties
hereto agree that it would not be just and equitable if contributions pursuant
to this paragraph were determined by PRO RATA allocation (even if all of the
sellers of such Restricted Stock were treated as one entity for such purpose) or
by any other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of such
Restricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of any damages which they
otherwise have been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
(f) The indemnification of underwriters provided for in this Section
9 shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters, in which event the indemnification of
the sellers
17
of Restricted Stock in such underwriting shall at the sellers' request be
modified to conform to such terms and conditions. Upon the reasonable request of
any stockholder selling Restricted Stock pursuant to a registration statement or
any underwriter of such stock, the Company shall obtain an insurance policy
covering the risks described above in this Section 9 in an amount and with a
deductible reasonably requested by such seller or underwriter and naming such
seller, any underwriter of such stock and any person controlling such seller or
underwriter as beneficiaries. The costs of obtaining and maintaining any such
insurance shall be borne by the Company.
10. CHANGES IN COMMON STOCK. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
11. REPRESENTATIONS AND WARRANTIES OF THE Company. The Company
represents and warrants to each other party hereto as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Amended and Restated Articles of Incorporation or Code of
Regulations of the Company, or any provision of any indenture, agreement or
other instrument to which it or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument,
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and
other similar laws and principles of equity affecting creditors' rights and
remedies generally.
12. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns. In addition, and whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of the holders
of
18
Restricted Stock (or any portion thereof) as such shall be for the benefit of
and enforceable by any subsequent holder of any Restricted Stock (or of such
portion thereof), subject to the provisions respecting the minimum numbers or
percentages of shares of Primary Restricted Stock, Additional Restricted
Securities, Nassau Restricted Securities or Electra Restricted Securities (or of
such portion of each) required in order to be entitled to certain rights, or
take certain actions, contained herein.
(b) All notices, requests, consents and other communications shall be
in writing delivered in person or by facsimile or duly sent by first class
registered or certified mail, postage prepaid, addressed as follows:
(i) if to the Company, at 155 Montrose West Avenue, Suite 210,
Copley, Ohio 44321, facsimile number: (216) 668-2518, Attention: Chief
Executive Officer; and
(ii) if to any holder of Restricted Stock, to such holder at his
or its respective addresses and facsimile numbers set forth in Schedule I
attached hereto, or, in any such case, at such other address, addresses,
facsimile number or numbers as shall have been designated by notice in writing
by such holder to the others. Each holder of Restricted Stock agrees to have at
all times an address and a facsimile number for notices hereunder.
All such notices and communications shall be deemed to have been received (A) in
the case of personal delivery, on the date of such delivery, (B) in the case of
facsimile delivery, upon confirmation of delivery and (C) in the case of
mailing, on the fifth business day following such mailing.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes in their entirety all
previous agreements and understandings, including, without limitation,
the.Registration Rights Agreement, dated July 23, 1990, the Amended Registration
Rights Agreement, the Second Amended Registration Rights Agreement, and the
Third Amended and Restated Registration Rights Agreement, and may not be
modified or amended except in writing. The Company shall not grant any rights to
register any of its capital stock in addition to the rights granted in this
Agreement to any party without amending this Agreement.
(e) This Agreement may be executed 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.
19
13. SECURITIES MATTERS. To the extent required, the Company will,
and will cause each of its subsidiaries to, comply in all material respects with
the reporting requirements of the Securities Act and the 1934 Act, or successor
rules thereto or otherwise. The Company will cooperate with each holder of
securities in supplying such information as may be requested by such holder to
comply with the Securities Act or 1934 Act, including Rule 144 and Rule 144A, or
successor rules thereto or otherwise.
IN WITNESS WHEREOF, the Company and the parties hereto have executed
this Fourth Amended and Restated, Registration Rights Agreement as of the day
and year first above written.
DeCRANE AIRCRAFT HOLDINGS, INC.
By: /s/ R. Jack DeCrane
----------------------------------------
R. Jack DeCrane, Chief Executive
Officer
BANC ONE CAPITAL PARTNERS, L.P.
By:
----------------------------------------
BRANTLEY VENTURE PARTNERS II, L.P
By: Brantley Venture Management II,
L.P., its general partner
By: Pinkas Family Partners, L.P.,
its general partner
By: /s/ Robert P. Pinkas
------------------------------------
ROBERT P. PINKAS , General
----------------
Partner
/s/ R. Jack DeCrane
---------------------------------------------
R. JACK DeCRANE, in his individual capacity
DSV PARTNERS, IV
By: DSV Management, Ltd.
By: /s/ John K. Clarke
--------------------------------------
John K. Clark , General
--------------
Partner
ELECTRA INVESTMENT TRUST, P.L.C.
By:
---------------------------------------
Its:
---------------------------------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ [ILLEGIBLE]
---------------------------------------
Its: Senior Associate
---------------------------------------
ELECTRA ASSOCIATES, INC.
By:
---------------------------------------
Its:
---------------------------------------
THE PROVIDENT BANK
By: /s/ [ILLEGIBLE]
---------------------------------------
Its: Vice President
---------------------------------------
NASSAU CAPITAL PARTNERS L.P.
By: NASSAU CAPITAL L.L.C.
General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Its: Member
--------------------------------
NAS PARTNERS I L.L.C.
By: /s/ [ILLEGIBLE]
---------------------------------------
Its: Member
---------------------------------------
Schedule I
Warrants to Series B
Common Purchase Common Series A Convertible Convertible
Shares Shares Preferred Shares Preferred Shares
------ --------------- -------------------- ----------------
Banc One Capital Partners, L.P.
300 Crescent Drive
Suite 1600 Dallas, TX 75201
Fax: (214) 979-4355 -- 343,569 -- --
Brantley Venture Partner II, L..P.
20600 Chagrin Blvd
Suite 1150
Cleveland, Ohio 44122
Fax: (216) 668-2518 38,076 17,228 101,224 955,996
R. Jack DeCrane
4966 Tulip Drive
Akron, OH 44313
(216) 668-2518 230,770 4,455 -- --
DSV Partner, IV
620 Newport Center Dr.
Suite 990
Newport Beach, CA 92660
Fax: (714) 760-6947 13,174 5,960 35,030 330,775
Electra Investment Trust, P.L.C.
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429 10,327 942,705 27,459 259,288
Electra Associates, Inc.
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429 1,493 119,581 3,969 37,478
Internationale Nederlanden (U.S.)
Capital Corporation
135 East 57th Street
New York, NY 10021
Fax: (212) 593-3562 -- 411,645 -- --
The Provident Bank
1800 Provident Tower
East Fourth Street
Cincinnati, OH 45202
Fax: (513) 579-2858 -- 137,215 -- --
Nassau Capital Partners L.P.
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887 -- 911,284 -- --
NAS Partners I L.L.C.
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887 -- 5,777 -- --
Richard G. MacDonald -- -- -- --
Chuck H Becker -- -- -- --
Robert A. Rankin -- -- -- --
John R. Hisson -- -- -- --
John Schnepf 8,000 -- -- --
Warrants to
Purchase
Series B Series C Series D Series E
Convertible Convertible Convertible Convertible
Preferred Preferred Preferred Preferred
Shares Shares Shares Shares
----------- ----------- ----------- -----------
Banc One Capital Partners, L.P.
300 Crescent Drive
Suite 1600 Dallas, TX 75201
Fax: (214) 979-4355 -- -- -- --
Brantley Venture Partner II, L..P.
20600 Chagrin Blvd
Suite 1150
Cleveland, Ohio 44122
Fax: (216) 668-2518 30,008 603,712 -- --
R. Jack DeCrane
4966 Tulip Drive
Akron, OH 44313
(216) 668-2518 -- -- -- --
DSV Partner, IV
620 Newport Center Dr.
Suite 990
Newport Beach, CA 92660
Fax: (714) 760-6947 13,446 1,347,987 -- --
Electra Investment Trust, P.L.C.
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429 8,152 279,479 -- 500,000
Electra Associates, Inc.
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429 1,178 40,397 -- --
Internationale Nederlanden (U.S.)
Capital Corporation
135 East 57th Street
New York, NY 10021
Fax: (212) 593-3562 -- -- -- --
The Provident Bank
1800 Provident Tower
East Fourth Street
Cincinnati, OH 45202
Fax: (513) 579-2858 -- -- -- --
Nassau Capital Partners L.P.
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887 -- -- 1,989,114 991,124
NAS Partners I L.L.C.
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887 -- -- 10,886 8,876
Richard G. MacDonald -- 30,000 -- --
Chuck H Becker -- 20,000 -- --
Robert A. Rankin -- 15,000 -- --
John R. Hisson -- 10,000 -- --
John Schnepf -- -- -- --