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FURNISHINGS INTERNATIONAL INC.
REGISTRATION RIGHTS AGREEMENT
August 5, 1996
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Registration Rights Agreement
TABLE OF CONTENTS
Page
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RECITALS.......................................................................1
ARTICLE I
DEFINITIONS................................................................1
1.1 Defined Terms in Stockholders' Agreement..............................1
1.2 Definitions...........................................................2
1.3 Cross-References......................................................3
ARTICLE II
DEMAND REGISTRATIONS.......................................................4
2.1 Requests for Registration.............................................4
2.2 Long-Form Registrations...............................................4
2.3 Short-Form Registrations..............................................5
2.4 Effective Registration Statement......................................5
2.5 Priority on Demand Registrations......................................6
2.6 Selection of Underwriters.............................................7
2.7 Black-Out Rights and Postponement.....................................7
ARTICLE III
PIGGYBACK REGISTRATIONS....................................................7
3.1 Right to Piggyback....................................................7
3.2 Piggyback Expenses....................................................8
3.3 Priority on Primary Registrations.....................................8
3.4 Priority on Secondary Registrations...................................8
ARTICLE IV.....................................................................9
HOLDBACK AGREEMENTS........................................................9
4.1 Holdback..............................................................9
4.2 Company Holdback......................................................9
ARTICLE V.....................................................................10
REGISTRATION PROCEDURES...................................................10
ARTICLE VI....................................................................14
REGISTRATION EXPENSES.....................................................14
6.1 Fees Generally.......................................................14
6.2 Counsel Fees.........................................................14
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Registration Rights Agreement
Page
ARTICLE VII...................................................................14
UNDERWRITTEN OFFERINGS....................................................14
7.1 Demand Underwritten Offerings........................................14
7.2 Incidental Underwritten Offerings....................................15
ARTICLE VIII..................................................................15
INDEMNIFICATION...........................................................15
8.1 Indemnification by the Company.......................................15
8.2 Indemnification by a Selling Stockholder.............................17
8.3 Indemnification Procedure............................................17
8.4 Underwriting Agreement...............................................18
8.5 Contribution.........................................................18
8.6 Periodic Payments....................................................20
ARTICLE IX....................................................................20
RULE 144..................................................................20
ARTICLE X.....................................................................20
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS...............................20
ARTICLE XI....................................................................21
MISCELLANEOUS.............................................................21
11.1 No Inconsistent Agreements.........................................21
11.2 Adjustments Affecting Registrable Securities.......................21
11.3 Specific Performance...............................................21
11.4 Actions Taken; Amendments and Waivers..............................21
11.5 Successors and Assigns.............................................22
11.6 Notices............................................................23
11.7 Headings...........................................................25
11.8 Gender.............................................................25
11.9 Invalid Provisions.................................................25
11.10 Governing Law......................................................26
11.11 Consent to Jurisdiction and Service of Process.....................26
11.12 Waiver of Jury Trial...............................................27
11.13 Counterparts.......................................................27
11.14 Omnibus Signature Pages ...........................................27
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Registration Rights Agreement (this "Agreement") dated as of August 5, 1996
by and among FURNISHINGS INTERNATIONAL INC., a Delaware corporation (the
"Company"), Masco Corporation, a Delaware corporation ("Masco"), 399 Venture
Partners, Inc., a Delaware corporation ("399"), TRV Employees Fund, L.P., a
Delaware limited partnership ("TRV"), Greenwich Street Capital Partners , L.P.,
a Delaware limited partnership ("Greenwich Street"), GSCP Offshore Fund Ltd., a
British Virgin Islands corporation ("GSCP"), The Travelers Insurance Company, a
Connecticut corporation ("Travelers"), The Travelers Life and Annuity Company, a
Connecticut corporation ("TLAC" and together with 399, TRV, Greenwich Street,
GSCP, Travelers and TLAC, each individually, an "Institutional Stockholders
Group Member"), and each of the individuals whose name appears on the omnibus
signature pages hereto (individually, a "Management Group Member" and
collectively, the "Management Group"). Capitalized terms are used as defined in
Article I hereto.
RECITALS
WHEREAS, the Company and Masco have entered into an Acquisition Agreement
dated as of March 29, 1996, as amended by Amendment No. 1 thereto dated as of
June 20, 1996 (as so amended and as may be further amended, supplemented or
modified from time to time, the "Acquisition Agreement"), pursuant to which the
Company is acquiring all of the issued and outstanding capital stock of the HFG
Companies (as such term is defined in the Acquisition Agreement);
WHEREAS, the Acquisition Agreement provides for the execution and delivery
of a stockholders agreement and a registration rights agreement at the closing
thereunder; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Stockholders'
Agreement among the parties hereto and dated the date hereof (as amended,
modified or supplemented from time to time, the "Stockholders' Agreement"), and
in connection therewith, the Company has agreed to provide the other parties
hereto with the registration rights set forth in this Agreement;
NOW THEREFORE, in connection with the Acquisition Agreement, the
Stockholders' Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms in Stockholders' Agreement.
Unless otherwise defined herein, defined terms used in this Agreement shall
have the meanings set forth in the Stockholders' Agreement.
Registration Rights Agreement
1.2 Definitions.
The following capitalized terms, when used in this Agreement, have the
respective meanings set forth below (such definitions to be equally applicable
to both singular and plural forms of the terms defined):
"Additional Management Stockholder" means an Additional Stockholder who is
an officer, director or employee of the Company or any of its Subsidiaries.
"Additional Stockholder" means any person who has executed a Joinder
Agreement as an Additional Stockholder pursuant to Section 6.2 of the
Stockholders' Agreement, and its direct and indirect Permitted Transferees, so
long as any such Person shall hold (directly or indirectly through the Voting
Trust) Registrable Securities, and only to the extent that (i) the Company has
granted such person registration rights as a Stockholder hereunder and (ii) such
Person has executed a Registration Rights Joinder Agreement.
"Initial Public Offering" means the first time a registration statement
filed under the Securities Act with the Commission respecting an offering,
whether primary or secondary, of Common Stock of the Company (or securities
convertible, exercisable or exchangeable for or into Common Stock of the Company
or rights to acquire Common Stock of the Company or such securities), which is
underwritten on a firmly committed basis, is declared effective and the
securities so registered are issued and sold.
"Institutional Stockholders" means each Institutional Stockholder Group
Member and their respective direct and indirect Permitted Transferees, so long
as any such Person shall hold Registrable Securities.
"Masco Stockholders" means Masco and its direct and indirect Permitted
Transferees, so long as any such Person shall hold Registrable Securities.
"Registrable Securities" means, at any time, the shares of Class A Common
(including all series thereof) and shares of Class B Common (including all
series thereof) then issued and outstanding or which are issuable upon
conversion, exercise or exchange of Equity Equivalents or the Class C Common and
any securities into which such Class A Common or Class B Common shall have been
changed or any securities resulting from any reclassification or
recapitalization of such Class A Common or Class B Common; provided, that
"Registrable Securities" shall not include any shares of Class A Common or Class
B Common obtained or transferred pursuant to an effective registration statement
under the Securities Act or in a Rule 144 Transaction, and provided, further,
that "Registrable Securities" shall not include any shares of Class A Common or
Class B Common which are held by a Person who is not a Stockholder.
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Registration Rights Agreement
"Registration Rights Joinder Agreement" means a Registration Rights Joinder
Agreement in the form attached hereto as Exhibit A.
"Required Institutional Stockholders" means, as of the date of any
determination thereof, Institutional Stockholders which hold Registrable
Securities representing at such time at least a majority (by number of shares)
of the Registrable Securities, on a fully diluted basis, held by all
Institutional Stockholders.
"Required Masco Stockholders" means, as of the date of any determination
thereof, Masco Stockholders which hold Registrable Securities representing at
such time at least a majority (by number of shares) of the Registrable
Securities, on a fully diluted basis, held by all Masco Stockholders.
"Stockholders" means the Institutional Stockholders, the Masco
Stockholders, the Management Stockholders, the Additional Stockholders and any
transferee of any of the foregoing persons who has acquired Registrable
Securities in accordance with the Stockholders' Agreement and who has executed a
Registration Rights Joinder Agreement.
1.3 Cross-References.
The following defined terms, when used in this Agreement, shall have the
meaning ascribed to them in the corresponding Sections of this Agreement listed
below:
"Acquisition Agreement" -- Recitals
"Black-Out Notice" -- Section 2.7
"Company" -- Preamble
"Demand Registrations" -- Section 2.1
"Long-Form Registrations" -- Section 2.1
"Piggyback Holders" -- Section 3.1
"Piggyback Registration" -- Section 3.1
"Registration Expenses" -- Section 6.1
"Requesting Investors" -- Section 2.1
"Short-Form Registrations" -- Section 2.1
"Stockholders' Agreement" -- Recitals
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Registration Rights Agreement
ARTICLE II
DEMAND REGISTRATIONS
2.1 Requests for Registration.
(a) From and after the date which is ninety one (91) days after the closing
of an Initial Public Offering, at any time each of the Required Institutional
Stockholders or the Required Masco Stockholders (the "Requesting Investors") may
request registration under the Securities Act of all or part of their
Registrable Securities (i) on Form S-1 or any similar long-form registration
("Long-Form Registrations"), and (ii) on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations") if the Company qualifies to
use such short form. Within ten (10) days after receipt of any such request, the
Company will give written notice of such request to all other holders of
Registrable Securities. Thereafter, the Company will use all reasonable efforts
to effect the registration under the Securities Act on the form requested by the
Requesting Investors and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein by the Stockholders within thirty (30) days after the receipt
of the Company's notice, subject to the provisions of Section 2.5. All
registrations requested pursuant to this Section 2.1 are referred to herein as
"Demand Registrations."
(b) Any Requesting Investor which requests a Demand Registration under this
Article II may, at any time prior to the effective date of the registration
statement relating to such registration, revoke such request by providing
written notice to the Company; provided, however, that notwithstanding such
revocation, such Demand Registration shall be deemed a request for purposes of
Section 2.2 unless, after consultation with the Company and any proposed
underwriter, the Requesting Investor in good faith determines that the
Registrable Securities which it has requested to be registered would not be sold
pursuant to such Demand Registration within a reasonable amount of time or at a
price acceptable to such Requesting Investor.
(c) Any request for a Demand Registration pursuant to this Article II shall
specify the number of shares of Registrable Securities proposed to be sold by
the Requesting Investor and the intended method of disposition thereof.
(d) The Required Institutional Stockholders may request that the Company
effect an Initial Public Offering and the Company shall use all reasonable
efforts to effect such Initial Public Offering within ninety (90) days after
receipt of such request.
2.2 Long-Form Registrations.
The Required Institutional Stockholders will be entitled to request
pursuant to this Article II up to three Long-Form Registrations and the Required
Masco Stockholders will be
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Registration Rights Agreement
entitled to request pursuant to this Article II up to three Long-Form
Registrations. The Company will pay all Registration Expenses in connection with
any such Long-Form Registrations. All Long-Form Registrations (unless otherwise
requested by the relevant Requesting Investor) shall be underwritten
registrations.
2.3 Short-Form Registrations.
In addition to the Long-Form Registrations provided pursuant to Section
2.2, the Required Institutional Stockholders and Required Masco Stockholders
will each be entitled to request an unlimited number of Short-Form Registrations
in which the Company will pay all Registration Expenses. Demand Registrations
will be Short-Form Registrations whenever the Company is qualified to use any
applicable short form. Once the Company has become subject to the reporting
requirements of the Exchange Act, the Company will use its reasonable best
efforts to make Short-Form Registrations available for the sale of Registrable
Securities.
2.4 Effective Registration Statement.
No Demand Registration shall be deemed to have been effected for purposes
of Section 2.2:
(i) unless a registration statement with respect thereto has become
effective;
(ii) if, after it has become effective, any stop order, injunction or other
order or requirement of the Commission or other governmental agency or
court for any reason, affecting any of the securities covered by such
registration statement, is issued or threatened by the Commission or other
governmental agency or court;
(iii) if the Company delivers a Black-Out Notice with respect to such
requested registration;
(iv) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration
are not satisfied by reason of a failure by or inability of the Company to
satisfy any of such conditions, or the occurrence of an event outside the
reasonable control of the relevant Requesting Investor;
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Registration Rights Agreement
(v) the revocation notice described in the proviso to Section 2.1(b) has
been delivered by the Requesting Investor; or
(vi) if the Requesting Investor is not able to register and sell at least
ninety percent (90%) of the amount of Registrable Securities which were
requested to be included in such registration;
provided that the Company will pay all Registration Expenses in connection with
any registration if pursuant to this Section 2.4 the registration is deemed not
to have been effected.
2.5 Priority on Demand Registrations.
(a) The Company will not include in any Demand Registration any securities
which are not Registrable Securities without the written consent of the Required
Institutional Stockholders (if the Required Institutional Stockholders have
requested such Demand Registration) or the Required Masco Stockholders (if the
Required Masco Stockholders have requested such Demand Registration).
(b) If the Requesting Investors and other holders of Registrable Securities
request Registrable Securities to be included in a Demand Registration which is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included exceeds the number of Registrable Securities which can be sold in
such offering within a price range acceptable to the Required Institutional
Stockholders (if the Required Institutional Stockholders have requested the
Demand Registration) or the Required Masco Stockholders (if the Required Masco
Stockholders have requested the Demand Registration), the Company will include
any securities to be sold in such Demand Registration in the following order:
(i) first, the Registrable Securities owned by the Requesting Investors; (ii)
second, the Registrable Securities requested to be included in such registration
by other Stockholders, provided, that if the managing underwriters determine in
good faith that a lower number of Registrable Securities should be included,
then only that lower number of Registrable Securities requested to be included
by other Stockholders shall be included in such registration, and the other
Stockholders shall participate in the registration pro rata based upon their
total ownership, on a fully diluted basis, of Registrable Securities, provided,
further, that if the managing underwriters determine in good faith that a lower
number of Registrable Securities held by Management Stockholders and/or
Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders may be
sold; (iii) third, the securities the Company proposes to sell and (iv) fourth,
any securities other than Registrable Securities to be sold by persons other
than the Company included pursuant to Section 2.5(a) hereof. Any Person other
than Stockholders including any securities in such
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Registration Rights Agreement
registration pursuant to Article II hereof must pay its share of the
Registration Expenses as provided in Article VI hereof.
2.6 Selection of Underwriters.
The Requesting Investors will have the right to select the underwriters and
the managing underwriter to administer any Demand Registration (which
underwriters and managing underwriter shall be reasonably acceptable to the
Company).
2.7 Black-Out Rights and Postponement.
(a) The Company shall not be required to provide a Demand Registration if
the Company, within the 90-day period preceding the date of a request for a
Demand Registration, has effected a registration of securities in which the
Requesting Investors were entitled to participate to the fullest extent pursuant
to Demand Registration rights under Article II hereof or Piggyback Registration
rights under Article III hereof.
(b) The Company may, upon written notice (a "Black-Out Notice") to the
Requesting Investor requesting a Demand Registration, require such Requesting
Investor to withdraw such Demand Registration upon the good faith determination
by the Company that such postponement is necessary (i) to avoid disclosure of
material non-public information or (ii) as a result of a pending material
financing or acquisition transaction, and in each case, each of the Required
Institutional Stockholders and the Required Masco Stockholders may not request
another Demand Registration for a period of up to sixty (60) days, as specified
by the Company in such Black-Out Notice. The Company may only give a Black-Out
Notice where the giving of such notice has been specifically approved by the
Company's Board of Directors. Upon receipt of a Black-Out Notice, the Demand
Registration shall be deemed to be rescinded and retracted and shall not be
counted as a Demand Registration for any purpose. The Company may not deliver
more than one Black-Out Notice in any twelve-month period.
ARTICLE III
PIGGYBACK REGISTRATIONS
3.1 Right to Piggyback.
Whenever the Company proposes (other than pursuant to a Demand Registration
or an Initial Public Offering (unless otherwise agreed by the Company)) to
register any of its equity securities under the Securities Act (whether for the
Company's own account (other than on Forms S-4 or S-8 or any successor forms),
or for the account of any other Person)(a "Piggyback Registration"), the Company
will give prompt written notice to all Institutional Stockholders,
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Registration Rights Agreement
Masco Stockholders, Management Stockholders and Additional Stockholders (the
"Piggyback Holders") of its intention to effect such a registration, and such
notice shall offer the Piggyback Holders the opportunity to register on the same
terms and conditions such number of shares of Registrable Securities as such
Piggyback Holder may request. The Company will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 30 days after the receipt by such
Piggyback Holder of the Company's notice, subject to the provisions of Sections
3.3 and 3.4.
3.2 Piggyback Expenses.
The Registration Expenses of the holders of Registrable Securities will be
paid by the Company in all Piggyback Registrations.
3.3 Priority on Primary Registrations.
If a Piggyback Registration is an underwritten primary registration on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration are such that the success of the offering would be
materially and adversely affected, the Company will include any securities to be
sold in such registration in the following order: (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Securities requested to
be included in such registration by the Piggyback Holders, provided that, if the
managing underwriters in good faith determine that a lower number of Registrable
Securities should be included, then the Company shall be required to include in
such registration only that lower number of Registrable Securities, and the
Piggyback Holders shall participate in the registration pro rata based upon
their total ownership, on a fully diluted basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
and/or Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders shall
be included and (iii) third, other securities requested to be included in such
registration.
3.4 Priority on Secondary Registrations.
If a Piggyback Registration is an underwritten secondary registration on
behalf of holders of the Company's securities and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration are such that the success of the
offering would be materially and adversely affected, the Company will include
any securities to be sold in such registration in the following order: (i)
first, the securities of such holders, (ii) second, the Registrable Securities
requested to be included in such registration by the Piggyback Holders pursuant
to Section 3.1 hereof, provided that, if the
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Registration Rights Agreement
managing underwriters in good faith determine that a lower number of Registrable
Securities should be included, then the Company shall be required to include in
such registration only that lower number of Registrable Securities, and the
Piggyback Holders shall participate in the registration pro rata based upon
their total ownership, on a fully diluted basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
and/or Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders may be
sold and (iii) third, other securities requested to be included in such
registration.
ARTICLE IV
HOLDBACK AGREEMENTS
4.1 Holdback.
Each holder of Registrable Securities agrees not to effect any public sale
or distribution of Registrable Securities, or any securities convertible,
exchangeable or exercisable for or into such securities, during the seven days
prior to, and the 90-day period beginning on, the effective date of an Initial
Public Offering or any underwritten Demand Registration or any underwritten
Piggyback Registration in which such holder had an opportunity to participate
without cutback under Article III hereof (in each case except as part of such
underwritten registration), unless the managing underwriters of the registered
public offering otherwise agree.
4.2 Company Holdback.
The Company agrees (i) not to effect any public sale or distribution of its
equity securities, or any securities convertible, exchangeable or exercisable
for or into such securities, during the fourteen (14) days prior to, and during
the 90-day period beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which holders of
Registrable Securities are selling stockholders (except as part of such
underwritten registration or pursuant to registrations on Forms S-4 or S-8 or
any successor form), unless the managing underwriters of such underwritten
Demand Registration or underwritten Piggyback Registration otherwise agree, and
(ii) to use all reasonable efforts to cause each holder of at least five percent
(5%) (on a fully-diluted basis) of its equity securities (excluding shares of
the Class D Common), or any securities convertible, exchangeable or exercisable
for or into such securities, to agree not to effect any public sale or
distribution of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the managing
underwriters of such underwritten Demand Registration or underwritten Piggyback
Registration otherwise agree.
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Registration Rights Agreement
ARTICLE V
REGISTRATION PROCEDURES
Whenever the Stockholders have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use all reasonable
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible (or, in the case of clause
(p) below, will not):
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities (such registration statement to include
all information which the holders of the Registrable Securities to be registered
thereby shall reasonably request) and use all reasonable efforts to cause such
registration statement to become effective, provided that as promptly as
practicable before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will (i) furnish to counsel
selected by the holders of a majority (by number of shares) of the Registrable
Securities covered by such registration statement (and, if the Required Masco
Stockholder has requested inclusion of any Registrable Securities pursuant to
Article II or Article III, to counsel for the Required Masco Stockholder) copies
of all such documents proposed to be filed, and the Company shall not file any
such documents to which such counsel shall have reasonably objected on the
grounds that such document does not comply in all material respects with the
requirements of the Securities Act, and (ii) notify each holder of Registrable
Securities covered by such registration statement of (x) any request by the
Commission to amend such registration statement or amend or supplement any
prospectus, or (y) any stop order issued or threatened by the Commission, and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered;
(b) (i) 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
until all Registrable Securities covered by such Registration Statement are sold
in accordance with the intended plan of distribution set forth in such
Registration Statement and (ii) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) of conformed copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus and, in each case, including all exhibits
thereto and documents incorporated by reference therein) and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
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Registration Rights Agreement
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
thereof shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, provided, however, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this clause (d),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
(e) furnish to each seller of Registrable Securities a signed copy,
addressed to such seller (and the underwriters, if any) of an opinion of counsel
for the Company or special counsel to the selling stockholders, dated the
effective date of such registration statement (and, if such registration
statement includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form and
substance to such seller, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings, and such other legal matters as
the seller (or the underwriters, if any) may reasonably request;
(f) notify each seller of Registrable Securities, at a time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event known to the Company as a result of which
the prospectus included in such registration statement, as then in effect,
contains an untrue statement of a material fact or omits to state any fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and, at the
request of any such seller, the Company will prepare and furnish such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made and in the event the
Company shall give such notice, the Company shall extend the period during which
such registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of such notice to
such seller to the date when the Company made available to such seller an
appropriately amended or supplemented prospectus;
(g) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and
to enter into such customary agreements as may be required in furtherance
thereof, including without limitation listing applications and indemnification
agreements in customary form;
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(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such other actions
as the holders of a majority (by number of shares) of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities (including without
limitation use its best efforts to effect a stock split or a combination of
shares);
(j) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(k) subject to other provisions hereof, use all reasonable efforts to cause
such Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
or self-regulatory organizations as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities;
(l) use all reasonable efforts to obtain a "comfort" letter, dated the
effective date of such registration statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company's financial statements, addressed to each seller, and to
the underwriters, if any, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(m) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, in each case as soon as practicable, an earnings statement covering a
period of at least twelve months, beginning with the first month after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities, which holder, in the sole
judgment, exercised in good faith, of such holder might be deemed to be a
controlling person of
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Registration Rights Agreement
the Company (within the meaning of the Securities Act or the Exchange Act) to
participate in the preparation of any registration statement covering such
holder's Registrable Securities and to include therein material, furnished to
the Company in writing, which in the reasonable judgment of such holder should
be included and which is reasonably acceptable to the Company;
(o) use all reasonable efforts to obtain the lifting at the earliest
possible time of any stop order suspending the effectiveness of any registration
statement or of any order preventing or suspending the use of any preliminary
prospectus;
(p) at any time file or make any amendment to a registration statement, or
any amendment of or supplement to a prospectus (including amendments of the
documents incorporated by reference into the prospectus), of which each seller
of Registrable Securities or the managing underwriters shall not have previously
been advised and furnished a copy or to which the sellers of Registrable
Securities, the managing underwriters, or counsel for such sellers or for the
underwriters shall reasonably object;
(q) make such representations and warranties (subject to appropriate
disclosure schedule exceptions) to sellers of Registrable Securities and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters and selling holders, as the case may be, in underwritten
public offerings of substantially the same type; and
(r) if any proposed registration statement refers to any seller by name or
otherwise as the holder of any securities of the Company then (whether or not
such seller is or might be deemed to be a controlling person of the Company),
(i) the Company shall be required at the request of such seller to insert
therein language, in form and substance reasonably satisfactory to such seller,
the Company and the managing underwriters, to the effect that the holding by
such seller of such securities is not to be construed as a recommendation by
such seller of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such seller will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such seller by name or otherwise is not required by the
Securities Act, any similar Federal or state statute, or any rule or regulation
of any other regulatory body having jurisdiction over the offering, then in
force, the Company shall be required at the request of such seller to delete the
reference to such seller.
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Registration Rights Agreement
ARTICLE VI
REGISTRATION EXPENSES
6.1 Fees Generally.
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance, the expenses and fees
for listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed, all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses") shall be borne
by the Company, except that each Stockholder shall pay any underwriting fees,
discounts or commissions attributable to the sale of its Registrable Securities.
6.2 Counsel Fees.
In connection with each Demand Registration, the Company will reimburse the
Requesting Investor for such Demand Registration for the reasonable fees and
disbursements of one counsel chosen by the relevant Requesting Investor.
ARTICLE VII UNDERWRITTEN OFFERINGS
7.1 Demand Underwritten Offerings.
If requested by the underwriters for any underwritten offerings of
Registrable Securities pursuant to a Demand Registration, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to the Requesting Investor
requesting such Demand Registration and the underwriters, and to contain such
representations and warranties by the Company and such other terms as are
generally included in agreements of this type, including without limitation
indemnities customarily included in such agreements. The holders of the
Registrable Securities will cooperate in good faith with the Company in the
negotiation of the underwriting agreement. The holders of Registrable Securities
to be distributed by such underwriters may be parties to
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Registration Rights Agreement
such underwriting agreement and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of such holders of Registrable Securities and that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by applicable law.
7.2 Incidental Underwritten Offerings.
If the Company at any time proposes to register any of its securities under
the Securities Act as contemplated by Article III of this Agreement and such
securities are to be distributed by or through one or more underwriters, the
Company will, if requested by any holder of Registrable Securities as provided
in Article III of this Agreement, arrange for such underwriters to include all
the Registrable Securities to be offered and sold by such holder, subject to the
limitations set forth in Article III hereof, among the securities to be
distributed by such underwriters. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company and such underwriters, and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. The
Company shall cooperate with any such holder of Registrable Securities in order
to limit any representations or warranties to, or agreements with, the Company
or the underwriters to be made by such holder only to those representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by applicable law.
ARTICLE VIII INDEMNIFICATION
8.1 Indemnification by the Company.
The Company agrees to indemnify and hold harmless, to the fullest extent
permitted by law, each of the holders of any Registrable Securities covered by
such registration statement, each other Person, if any, who controls such holder
within the meaning of the
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Registration Rights Agreement
Securities Act or the Exchange Act, and each of their respective directors,
general partners and officers, as follows:
(i) against any and all loss, liability, claim, damage or expense arising
out of or based upon an untrue statement or alleged untrue statement of a
material fact contained in any registration statement (or any amendment or
supplement thereto), including all documents incorporated therein by
reference, or in any preliminary prospectus or prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense to the
extent of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense incurred by them in connection with
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under clause (i) or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or any
amendment or supplement thereto); and provided, further, that the Company will
not be liable to any holder under the indemnity agreement in this Section 8.1,
with respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, liability, claim, damage or expense of such controlling Person or
holder results from the fact that such holder sold Registrable Securities to a
Person to whom there
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Registration Rights Agreement
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the final prospectus or of the final prospectus as then amended or
supplemented, whichever is most recent, if the Company has previously and timely
furnished copies thereof to such holder. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or any such director, officer, general partner, or other controlling
person and shall survive the transfer of such securities by such seller.
8.2 Indemnification by a Selling Stockholder.
In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder agrees to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
Section 8.1 of this Agreement), to the extent permitted by law, the Company and
its directors, officers and controlling Persons, and their respective directors,
officers and general partners, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information that relates only to such holder or the plan of distribution that is
expressly furnished to the Company by or on behalf of such holder for use in the
preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company,
or such holder, as the case may be, or any of their respective directors,
officers, controlling Persons or general partners and shall survive the transfer
of such securities by such holder. With respect to each claim pursuant to this
Section 8.2, each holder's maximum liability under this Section shall be limited
to an amount equal to the net proceeds actually received by such holder (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such holder.
8.3 Indemnification Procedure.
Promptly after receipt by an indemnified party hereunder of written notice
of the commencement of any action or proceeding involving a claim referred to in
Section 8.1 or Section 8.2 of this Agreement, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 8.1 or Section
8.2 of this Agreement except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably
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Registration Rights Agreement
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal fees and expenses subsequently incurred by the latter in connection
with the defense thereof, unless in such indemnified party's reasonable judgment
an actual or potential conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, in which case the
indemnifying party shall not be liable for the fees and expenses of (i) more
than one counsel (in addition to any local counsel) for all holders of
Registrable Securities, selected by a majority (by number of shares) of the
holders of Registrable Securities, or (ii) more than one counsel (in addition to
any local counsel) for the Company in connection with any one action or separate
but similar or related actions. An indemnifying party who is not entitled to
(pursuant to an immediately preceding sentence), or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel (in addition to any local counsel) for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party an actual or potential conflict of interest
may exist between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of such additional counsel or
counsels. The indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any Person who controls such indemnified party is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding. Notwithstanding
anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party will have the right to retain, at
its own expense, counsel with respect to the defense of a claim.
8.4 Underwriting Agreement.
The Company and each holder of Registrable Securities requesting
registration shall provide for the foregoing indemnity (with appropriate
modifications) in any underwriting agreement with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority.
8.5 Contribution.
If the indemnification provided for in Sections 8.1 and 8.2 of this
Agreement is unavailable to hold harmless an indemnified party under such
Sections, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 8.1 or Section 8.2 of this Agreement in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one
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Registration Rights Agreement
hand, and the indemnified party on the other, in connection with statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations, including
without limitation the relative benefits received by each party from the
offering of the securities covered by such registration statement, the parties'
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted and the opportunity to correct and prevent any
statement or omission. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statements or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 8.5 were to be determined by pro rata or per capita allocation (even if
the underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in the first and second sentences of this Section 8.5. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 8.5 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim (which shall be limited as provided in Section 8.3 of this Agreement if
the indemnifying party has assumed the defense of any such action in accordance
with the provisions thereof) which is the subject of this Section 8.5. Promptly
after receipt by an indemnified party under this Section 8.5 of notice of the
commencement of any action against such party in respect of which a claim for
contribution may be made against an indemnifying party under this Section 8.5,
such indemnified party shall notify the indemnifying party in writing of the
commencement thereof if the notice specified in Section 8.3 of this Agreement
has not been given with respect to such action; provided that the omission to so
notify the indemnifying party shall not relieve the indemnifying party from any
liability which it may otherwise have to any indemnified party under this
Section 8.5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. The Company and each holder of
Registrable Securities agrees with each other and the underwriters of the
Registrable Securities, if requested by such underwriters, that (i) the
underwriters' portion of such contribution shall not exceed the underwriting
discount and (ii) that the amount of such contribution shall not exceed an
amount equal to the net proceeds actually received by such indemnifying party
from the sale of Registrable Securities in the offering to which the losses,
liabilities, claims, damages or expenses of the indemnified parties relate. 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.
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Registration Rights Agreement
8.6 Periodic Payments.
The indemnification required by this Article VIII shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred.
ARTICLE IX
RULE 144
If the Company shall have filed a registration statement pursuant to the
requirements of Section 12 of the Exchange Act or a registration statement
pursuant to the requirements of the Securities Act, the Company covenants that
it will file the reports required to be filed by it under the Securities Act and
the Exchange Act (or, if the Company is not required to file such reports, it
will, upon the request of any holder of Registrable Securities, make publicly
available other information), and it will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell shares of Registrable Securities
without registration under the Securities Act in compliance with (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (ii)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration hereunder unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, escrow
agreements and other documents reasonably required under the terms of such
underwriting arrangements and consistent with the provisions of this Agreement.
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Registration Rights Agreement
ARTICLE XI
MISCELLANEOUS
11.1 No Inconsistent Agreements.
The Company will not hereafter enter into any agreement which is
inconsistent with, or would otherwise restrict the performance by the Company
of, its obligations hereunder.
11.2 Adjustments Affecting Registrable Securities.
The Company will not take any action, or fail to take any action which it
may properly take, with respect to its securities which would adversely affect
the ability of the holders of Registrable Securities to include Registrable
Securities in a registration undertaken pursuant to this Agreement or which, to
the extent within its control, would adversely affect the marketability of such
Registrable Securities in any such registration (including without limitation
effecting a stock split or a combination of shares).
11.3 Specific Performance.
The parties hereto agree that irreparable damage would occur in the event
any provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity; provided,
however, that each of the parties agrees to provide other parties with written
notice at least two business days prior to filing any motion or other pleading
seeking a temporary restraining order, a temporary or permanent injunction,
specific performance, or any other equitable remedy and to give other parties
and their counsel a reasonable opportunity to attend and participate in any
judicial or administrative hearing or other proceeding held to adjudicate or
rule upon any such motion or pleading.
11.4 Actions Taken; Amendments and Waivers.
(a) Whenever any action is required under this Agreement to be taken by, or
any vote or consent is required of,
(i) the Management Stockholders (and Additional Management Stockholders who
have become parties to the Voting Trust Agreement) (as a group as opposed
to the exercise by a Management Stockholder or Additional Management
Stockholder as the case may be, of his individual rights hereunder,
including without limitation the exercise of his individual rights
hereunder), such action, vote or consent shall be taken or given by the
Trustee under the Voting Trust
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Registration Rights Agreement
Agreement acting in accordance with the terms of the Voting Trust
Agreement; or
(ii) the Additional Stockholders (exclusive of Additional Management
Stockholders who have become parties to the Voting Trust Agreement) (as a
group as opposed to the exercise by an Additional Stockholder of his
individual rights hereunder), unless otherwise agreed by the Company and
the Additional Stockholders, such action, vote or consent shall be taken by
or in accordance with the affirmative vote of the holders of a majority (by
number of shares) of the Registrable Securities held by the Additional
Stockholders.
(b) Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement will be effective against the Company
or any holder of Registrable Securities, unless such modification, amendment or
waiver is approved in writing by the Company, the Required Institutional
Stockholders, the Required Masco Stockholders and, in the event that the rights
and obligations of the Management Stockholders and/or the Additional
Stockholders are adversely affected thereby, the approval of the Management
Stockholders and/or the Additional Stockholders, as the case may be. The failure
of any party to enforce any of the provisions of this Agreement will in no way
be construed as a waiver of such provisions and will not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
11.5 Successors and Assigns.
All covenants and agreements in this Agreement by or on behalf of any of
the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not; in
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities, except to the extent reserved to or by the
transferor in connection with any such transfer; provided, that the benefits of
this Agreement shall inure to and be enforceable by any transferee of
Registrable Securities so long as such transferee shall have acquired such
securities in accordance with the terms of the Stockholders' Agreement and shall
have executed a Registration Rights Joinder Agreement.
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Registration Rights Agreement
11.6 Notices.
(a) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
against written receipt or by facsimile transmission or mailed (by registered or
certified mail, return receipt requested) or by reputable overnight courier, fee
prepaid to the parties at the following addresses or facsimile numbers:
(i) If to any Institutional Stockholder, to:
399 Venture Partners, Inc.
399 Park Avenue
New York, New York 10043
Facsimile No.: 212-888-2940
Attn: David F. Thomas
and
Greenwich Street Capital Partners, Inc.
338 Greenwich Street
New York, New York 10013
Facsimile No.: 212-816-0166
Attn: General Counsel
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Facsimile No.: 212-309-6273
Attn: Philip H. Werner
(ii) if to any Travelers Stockholder, to:
[Name of Travelers Stockholder]
c/o Greenwich Street Capital Partners, Inc.
338 Greenwich Street
New York, New York 10013
Facsimile No.: 212-816-0166
Attn: General Counsel
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Registration Rights Agreement
(iii) If to any Masco Stockholder, to:
MASCO Corporation
21001 Van Born Road
Taylor, Michigan 48180
Facsimile No.: 313-274-6135
Attn: President
with a copy to:
MASCO Corporation
21011 Van Born Road
Taylor, Michigan 48180
Facsimile No.: 313-274-6135
Attn: General Counsel
(iv) If to any Management Stockholder, to:
Voting Trustee
c/o FURNISHINGS INTERNATIONAL INC.
1300 National Highway
Thomasville, North Carolina 27360
Facsimile No.: 910-476-4551
Attn: President
with a copy to:
FURNISHINGS INTERNATIONAL INC.
1300 National Highway
Thomasville, North Carolina 27360
Facsimile No.: 910-476-4551
Attn: General Counsel
(v) If to the Company, to:
FURNISHINGS INTERNATIONAL INC.
1300 National Highway
Thomasville, North Carolina 27360
Facsimile No.: 910-476-4551
Attn: President
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Registration Rights Agreement
with copies to:
FURNISHINGS INTERNATIONAL INC.
1300 National Highway
Thomasville, North Carolina 27360
Facsimile No.: 910-476-4551
Attn: General Counsel
and
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Facsimile No.: 212-309-6273
Attn: Philip H. Werner
(vi) If to any Additional Stockholder, to the address of such Person set
forth in the stock records of the Company.
(b) All such notices, requests and other communications will be deemed
delivered upon receipt. Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
11.7 Headings.
The headings used in this Agreement have been inserted for convenience of
reference only and do not affect the provisions hereof.
11.8 Gender.
Whenever the pronouns "he" or "his" are used herein they shall also be
deemed to mean "she" or "hers" or "it" or "its" whenever applicable. Words in
the singular shall be read and construed as though in the plural and words in
the plural shall be construed as though in the singular in all cases where they
would so apply.
11.9 Invalid Provisions.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully
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Registration Rights Agreement
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
11.10 Governing Law.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or
conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
11.11 Consent to Jurisdiction and Service of Process.
EACH OF THE PARTIES HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT
MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTY AT THE
ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN
(15) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT
THE ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO
OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY
OF THE OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS
MAY BE PERMITTED BY ANY APPLICABLE LAW.
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Registration Rights Agreement
11.12 Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. EACH OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE PARTIES
HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
11.13 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
11.14 Omnibus Signature Pages.
The signature pages to this Agreement include one signature page executed
by the Company, Masco, 399 and AMC and a series of Omnibus Signature Pages
executed by the Management Group Members which constitute signature pages to
this Agreement and to other agreements.
[Remainder of Page Intentionally Left Blank]
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Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
FURNISHINGS INTERNATIONAL INC.
By________________________________
Robert L. George
Executive Vice President
MASCO CORPORATION
By________________________________
Name:
Title:
399 VENTURE PARTNERS, INC.
By________________________________
David F. Thomas
President
ASSOCIATED MADISON COMPANIES, INC.
By________________________________
Name:
Title:
TRV EMPLOYEES FUND, L.P.
By TRV Employees Investments Inc., General Partner
By________________________________
Name:
Title:
[Signature Page to Registration Rights Agreement]
Registration Rights Agreement
GREENWICH STREET CAPITAL PARTNERS, L.P.
By Greenwich Street Investments, L.P., General Partner
By Greenwich Street Investments, Inc., General Partner
By__________________________________
Name:
Title:
GSCP OFFSHORE FUND LTD.
By Greenwich Street Capital Partners, Inc.,
as Manager
By__________________________________
Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By__________________________________
Name:
Title:
THE TRAVELERS LIFE AND ANNUITY COMPANY
By__________________________________
Name:
Title:
[Signature Page to Registration Rights Agreement]
[Omnibus Signature Page follows]