1
EXHIBIT 5.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of __________, ____,
between Oneita Industries, Inc., a Delaware corporation ("Oneita"), and [names
of Initial Holders] (the "Initial Holders"),
W I T N E S S E T H:
WHEREAS, pursuant to Section IV.Q of the Plan of Reorganization of
Oneita under Chapter 11 of the Bankruptcy Code dated January __, 1998, as the
same may have been amended or supplemented from time to time prior to the date
hereof (the "Plan"), as of the Effective Date (as defined in the Plan) Oneita is
obligated to enter into a registration rights agreement substantially in the
form of Exhibit ___ thereto; and
WHEREAS, the parties have agreed that the execution and delivery by
Oneita and the Initial Holders of this Agreement will satisfy such obligation
under Section IV.Q of the Plan;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and agreements set forth herein, the parties hereby agree as follows:
1. DEFINITIONS.
(a) Capitalized terms used in this Agreement but not otherwise defined
herein shall have the meanings given to them in the Plan. Each reference herein
to an agreement, document or instrument shall mean that agreement, document or
instrument as from time to time amended, modified or supplemented in accordance
with its terms, including in each case all exhibits, annexes and schedules to
such agreement, document or instrument, all of which are incorporated by
reference to such agreement, document or instrument. The use herein of the word
"or" shall not be deemed exclusive.
(b) As used in this Exhibit, the following capitalized terms shall have
the meanings ascribed to them below:
"Common Stock" means the Common Stock, par value $.25 per
share, of Oneita being issued and sold pursuant to the Plan.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a reference
to a particular section thereof shall be deemed to include a reference
to the comparable section, if any, of any such similar federal statute.
"Holder" means a registered holder of Registrable Securities.
"Person" means an individual, partnership, joint venture,
corporation, trust,
2
unincorporated organization or government or any department or agency
thereof.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement or any other
amendments and supplements to such prospectus, including without
limitation any preliminary prospectus, any pre-effective or
post-effective amendment and all material incorporated by reference in
any prospectus.
"Registrable Securities" means (i) the Common Stock which is
issued to any Initial Holder pursuant to the Plan and (ii) any
securities issued or issuable in respect of or in exchange for any of
the shares of Common Stock referred to in clause (i) by way of a stock
dividend or other distribution, stock split, reverse stock split or
other combination of shares, recapitalization, reclassification,
merger, consolidation or exchange offer. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (i) a Registration Statement with respect
to the sale of such securities shall have become effective under the
Securities Act and such securities shall be eligible to be disposed of
in accordance with such Registration Statement, (ii) such securities
shall have been sold pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) such securities shall have been
otherwise transferred and new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered
by Oneita or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" has the meaning set forth in Section
5.
"Registration Statement" means any registration statement of
Oneita which covers Registrable Securities pursuant to the provisions
of this Exhibit, all amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and
all material incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or
the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to
the comparable section, if any, of any such similar federal statute.
2. SHELF REGISTRATION.
(a) ONEITA'S OBLIGATION TO FILE. Oneita shall file as promptly as
practicable after the date of the Plan, and shall use its best efforts to cause
a Registration Statement or Registration Statements under the Securities Act for
the offering on a continuous or delayed basis in the future of each of the
Registrable Securities (the "Shelf Registration") to be declared effective prior
to the Effective Date (or if not declared effective by such date, then as soon
as possible after such date).
(b) ONEITA'S OBLIGATION TO MAINTAIN. Oneita agrees to use its best
efforts to keep the Shelf Registration continuously effective for the period
beginning on the date on which the Shelf Registration is declared effective and
ending on the earlier of (i) the second anniversary of such date plus the number
of days of any suspension of the Holders' right to sell under paragraph (c) of
this Section 2 and (ii) the first date that there are no Registrable Securities
(the "Shelf Registration Period"). During the Shelf
3
Registration Period, Oneita shall supplement or make amendments to the Shelf
Registration, if required by the Securities Act or by the rules and regulations
promulgated thereunder, and shall use its best efforts to have such supplements
and amendments declared effective as soon as practicable after filing.
(c) SUSPENSION OF SALES. Oneita shall have the right to require the
Holders not to sell under the Shelf Registration during one or more periods
aggregating not more than 45 days in each twelve-month period during the Shelf
Registration Period in the event that (i) Oneita would, in accordance with the
advice of its counsel, be required to disclose in the Prospectus information not
otherwise then required by law to be publicly disclosed and (ii) in the judgment
of Oneita, there is a reasonable likelihood that such disclosure, or any other
action to be taken in connection with the Prospectus, would materially and
adversely affect any existing or prospective material business situation,
transaction or negotiation or otherwise materially and adversely affect Oneita.
(d) NOTICE. Oneita shall give each Holder prompt notice in the event
that (i) Oneita has suspended sales of Registrable Securities under paragraph
(c) of this Section 2 or (ii) the Registration Statement or any related
Prospectus is not accurate and changes should be made so that such Registration
Statement or Prospectus will not contain any untrue statement of a material fact
nor omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
(e) INCLUSION OF OTHER SECURITIES. No securities other than Registrable
Securities shall be included in the Shelf Registration; provided, however, that
this paragraph (e) shall not prohibit Oneita from filing other registration
statements in addition to the Shelf Registration.
3. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION. Subject to the provisions of paragraphs
(b), (c) and (d) of this Section 3, at any time during the period beginning at
the end of the Shelf Registration Period and ending on the earlier of (x) the
third anniversary thereof plus the number of days of any suspension under
paragraph (d) of this Section 3 of the Holders' right to sell and (y) the first
date on which there are no Registrable Securities (the "Demand Registration
Period"), any Holder or group of Holders holding at least 7% of the aggregate
Registrable Securities still outstanding may make a written request for
registration under the Securities Act of all or any part of such Holder's or
Holders' Registrable Securities (a "Demand Registration"). Such request shall
specify the amount and kind of Registrable Securities to be registered and the
intended method or methods of disposition. Within 10 days after receipt of such
request, Oneita shall send written notice of such request to all Holders and
shall, subject to the provisions of paragraphs (b), (c) and (d) of this Section
3, include in such Demand Registration all Registrable Securities with respect
to which Oneita receives written requests (specifying the amount and kind of
Registrable Securities to be registered and the intended method or methods of
disposition) for inclusion therein within 30 days after such notice is sent. As
promptly as practicable thereafter, Oneita shall file with the SEC a
Registration Statement, registering all Registrable Securities that any Holders
have requested Oneita to register, for disposition in accordance with the
intended method or methods set forth in their notices to Oneita. Oneita shall
use its best efforts to cause such Registration Statement to be declared
effective as soon as practicable after filing and to remain effective until the
earlier of (i) 90 days following the date on which it was declared effective and
(ii) the date on which all of the Registrable Securities covered thereby are
disposed of in accordance with the method or methods of disposition stated
therein.
(b) NUMBER OF REGISTRATIONS. The Holders shall be entitled to request
an aggregate of four Demand Registrations during the Demand Registration Period;
provided, however, that Oneita will not be obligated to comply with any such
request unless (i) such request is made by Persons holding at least
4
of the aggregate amount of Registrable Securities at the time outstanding, (ii)
the Registrable Securities to be registered in such Demand Registration
constitute at least 5% of the aggregate amount of Registrable Securities at the
time outstanding and (iii) Oneita has not effected another Demand Registration
in accordance with the provisions of this Agreement within the previous six
months.
(c) S-3 REGISTRATIONS. Notwithstanding anything in this Section 3 to
the contrary, any Holder may request an unlimited number of Demand Registrations
during the Demand Registration Period, if (i) the Holder, in his written request
for a Demand Registration, undertakes to bear or reimburse all Registration
Expenses incurred by Oneita in connection with the Demand Registration and (ii)
Oneita is eligible under the Securities Act to register the Registrable
Securities on a Registration Statement on Form S-3.
(d) SUSPENSION OF REGISTRATION. Oneita shall have the right to delay
the filing or effectiveness of a Registration Statement for any Demand
Registration or to require the Holders not to sell under any such Registration
Statement, during one or more periods aggregating not more than 60 days in each
twelve-month period during the Demand Registration Period in the event that (i)
Oneita would, in accordance with the advice of its counsel, be required to
disclose in the Prospectus information not otherwise then required by law to be
publicly disclosed and (ii) in the judgment of Oneita, there is a reasonable
likelihood that such disclosure, or any other action to be taken in connection
with the Prospectus, would materially and adversely affect any existing or
prospective material business situation, transaction or negotiation or otherwise
materially and adversely affect Oneita.
(e) OFFERING BY ONEITA. Oneita may include in any Demand Registration
additional shares of capital stock to be sold for Oneita's account pursuant to
such registration; provided, however, that if the managing underwriter for a
Demand Registration that involves an underwritten offering shall advise Oneita
that, in its opinion, the inclusion of the amount and kind of shares of capital
stock to be sold for Oneita's account would adversely affect the success of the
offering for the selling Holders, then the number and kind of shares of capital
stock to be sold for Oneita's account shall be reduced (and may be reduced to
zero) in accordance with the managing underwriter's recommendation.
4. REGISTRATION PROCEDURES.
(a) ONEITA TO USE BEST EFFORTS. In connection with Oneita's Shelf
Registration and Demand Registration obligations pursuant to Sections 2 and 3
hereof, Oneita shall use its best efforts to effect such registrations to permit
the sale of such Registrable Securities in accordance with the intended method
or methods of disposition thereof, and pursuant thereto Oneita shall use its
best efforts:
(i) to prepare and file with the SEC a Registration Statement
or Registration Statements relating to the Shelf Registration and the
Demand Registrations on any appropriate form under the Securities Act,
and to cause such Registration Statements to become effective as soon
as practicable and to remain continuously effective for the time period
required by the provisions of this Agreement to the extent permitted
under the Securities Act; provided, however, that as soon as
practicable but in no event later than three Business Days before
filing such Registration Statement, any related Prospectus or any
amendment or supplement thereto, other than any amendment or supplement
made solely as a result of incorporation by reference of documents
filed with the SEC subsequent to the filing of such Registration
Statement (or, in the case of any Prospectus supplement or
post-effective amendment relating to a proposed shelf "draw-down"
pursuant to Section 2 hereof, two Business Days before the filing
thereof), Oneita shall furnish to the Holders of the Registrable
Securities covered by such Registration Statement (or, in the case of
any Prospectus supplement or post-effective amendment relating to a
proposed shelf "draw-
5
down" pursuant to Section 2 hereof), to the selling Holders and the
underwriters, if any, copies of all such documents proposed to be
filed, which documents shall be subject to the review of such Holders
and underwriters; Oneita shall not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other
than any amendment or supplement made solely as a result of
incorporation by reference of documents filed with the SEC subsequent
to the filing of such Registration Statement) to which the managing
underwriters of the applicable offering, if any, or the Holders of a
majority of the Registrable Securities then outstanding (or, in the
case of any Prospectus supplement or post-effective amendment relating
to a proposed shelf "draw-down" pursuant to Section 2 hereof, a
majority of the selling Holders) shall have objected within two
Business Days after receipt of such documents to such filing based upon
their reasonable belief that such Registration Statement or amendment
thereto or Prospectus or supplement thereto does not comply in all
material respects with the requirements of the Securities Act (provided
that the foregoing shall not limit the right of any Holder whose
Registrable Securities are covered by a Registration Statement
reasonably to object, within two Business Days after receipt of such
documents, to any particular information that is to be contained in
such Registration Statement, amendment, Prospectus or supplement and
relates specifically to such Holder, including, without limitation, any
information describing the manner in which such Holder acquired such
Registrable Securities and the intended method or methods of
distribution of such Registrable Securities); and if Oneita is unable
to file any such document due to the objections of such underwriters or
such Holders, to cooperate with such underwriters and Holders to
prepare, as soon as practicable, a document that is responsive in all
material respects to the reasonable objections of such underwriters and
Holders;
(ii) to prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period set forth in paragraph (a) of Section 2 and paragraph
(a) of Section 3; and to cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed in accordance with the Securities Act and any
rules and regulations promulgated thereunder; and otherwise to comply
with the provisions of the Securities Act as may be necessary to
facilitate the disposition of all Registrable Securities covered by
such Registration Statement during the applicable period in accordance
with the intended method or methods of disposition by the selling
Holders thereof set forth in such Registration Statement or such
Prospectus or Prospectus supplement;
(iii) to notify the selling Holders and the managing
underwriters, if any, promptly if at any time (A) any Prospectus,
Registration Statement or amendment or supplement thereto is filed, (B)
any Registration Statement, or any post-effective amendment thereto,
becomes effective, (C) the SEC requests any amendment or supplement to,
or any additional information in respect of, any Registration Statement
or Prospectus, (D) the SEC issues any stop order suspending the
effectiveness of a Registration Statement or initiates any proceedings
for that purpose, (E) the representations and warranties of Oneita
contemplated by subclause (B) of clause (xiii) of this paragraph (a)
cease to be true and correct, (F) Oneita receives any notice that the
qualification of any Registrable Securities for sale in any
jurisdiction has been suspended or that any proceeding has been
initiated for the purpose of suspending such qualification, or (G) any
event occurs which requires that any changes be made in such
Registration Statement or any related Prospectus so that such
Registration Statement or Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iv) to make every reasonable effort to obtain the withdrawal
of any order suspending the
6
effectiveness of a Registration Statement, or the qualification of any
Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(v) if requested by the managing underwriters or any Holder of
Registrable Securities being sold in connection with an underwritten
offering, promptly to incorporate into a Prospectus supplement or a
post-effective amendment to the Registration Statement any information
which the managing underwriters and such Holder reasonably agree is
required to be included therein relating to such sale of Registrable
Securities; and to file such supplement or post-effective amendment as
soon as practicable in accordance with the Securities Act and the rules
and regulations promulgated thereunder;
(vi) to furnish to each selling Holder and each managing
underwriter, if any, one signed copy of the Registration Statement or
Registration Statements and any post-effective amendment thereto,
including all financial statements and schedules thereto, all documents
incorporated therein by reference and all exhibits thereto (including
exhibits incorporated by reference) as promptly as practicable after
filing such documents with the SEC;
(vii) to deliver to each selling Holder and each underwriter,
if any, as many copies of the Prospectus or Prospectuses (including
each preliminary Prospectus) and any amendment or supplement thereto as
such Persons may reasonably request; and to consent to the use of such
Prospectus or any amendment or supplement thereto by each such selling
Holder and underwriter, if any, in connection with the offering and
sale of the Registrable Securities covered by such Prospectus,
amendment or supplement;
(viii) prior to any public offering of Registrable Securities,
to register or qualify, or to cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities, for
offer and sale under the securities or blue sky laws of such
jurisdictions as may be requested by the Holders of a majority of the
Registrable Securities included in such Registration Statement; to keep
each such registration or qualification effective during the period set
forth in paragraph (a) of Section 2 or paragraph (a) of Section 3 that
the applicable Registration Statement is required to be kept effective;
and to do any and all other acts or things necessary to enable the
disposition in such jurisdictions of the Registrable Securities covered
by such Registration Statement; provided, however, that Oneita will not
be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would
subject it to taxation or general service of process in any
jurisdiction where it is not then so subject;
(ix) to cooperate with the selling Holders and the
underwriters, if any, in the preparation and delivery of certificates
representing the Registrable Securities to be sold, such certificates
to be in such denominations and registered in such names as such
selling Holders or managing underwriters may request at least three
Business Days prior to any sale of Registrable Securities represented
by such certificates;
(x) to cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to
consummate the sale of such Registrable Securities in conformity with
federal law and the laws of the jurisdictions in which such Registrable
Securities shall be registered or qualified pursuant to clause (viii)
of this paragraph (a);
7
(xi) upon the occurrence of any event described in subclause
(C) or (G) of clause (iii) of this paragraph (a), promptly to prepare
and file a supplement or post-effective amendment to the applicable
Registration Statement or Prospectus or any document incorporated
therein by reference, and any other required document, either in
accordance with the request of the SEC, or so that such Registration
Statement and Prospectus will not thereafter contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, as the case
may be, and to cause such supplement or post-effective amendment to
become effective as soon as practicable;
(xii) to cause all Common Stock constituting Registrable
Securities covered by such Registration Statement to be listed on the
NASDAQ National Market System or if the Common Stock is then listed or
included on any securities exchange (or on any other quotation system
operated by a national securities association) and either the Holders
of a majority of the Registrable Securities included in such
Registration Statement or the underwriters, if any, so request, on such
securities exchange (or other such quotations system); and to enter
into customary agreements, including, if necessary, a listing
application and indemnification agreement in customary form; to provide
a transfer agent for such Registrable Securities no later than the
effective date of such Registration Statement; to cause any other
Registrable Securities covered by such Registration Statement to be
listed (or included) on each securities exchange (or quotation system
operated by a national securities association) on which securities of
the same class and series, if any, are then listed (or included) or on
any exchange (or quotation) system on which any Person other than a
Holder shall have the right to have securities of the same class and
series, if any, listed (or included), if so requested by the Holders of
a majority of the Registrable Securities included in such Registration
Statement or the underwriters, if any, and enter into customary
agreements including, if necessary, a listing application and
indemnification agreement in customary form, and, if necessary, to
provide a transfer agent for such securities no later than the
effective date of such Registration Statement; and to obtain a CUSIP
number for the Registrable Securities no later than the effective date
of such Registration Statement;
(xiii) to take all other actions in connection therewith as
are reasonably necessary or desirable in order to expedite or
facilitate the disposition of the Registrable Securities included in
such Registration Statement and, in the case of an underwritten
offering: (A) to enter into an underwriting agreement in customary form
for the managing underwriters with respect to issuers of similar market
capitalization and reporting and financial histories; (B) to make
representations and warranties to each Holder participating in such
offering and to each of the underwriters, in such form, substance and
scope as are customarily made to the managing underwriters by issuers
of similar market capitalization and reporting and financial histories
and to confirm the same to the extent customary if and when requested;
(C) to obtain opinions of counsel to Oneita (which may be Oneita's
inside counsel) and updates thereof addressed to each Holder
participating in such offering and to each of the underwriters, such
opinions and updates to be in customary form to cover the matters
customarily covered in opinions obtained in underwritten offerings by
the managing underwriters for issuers of similar market capitalization
and reporting and financial histories; (D) to obtain "comfort" letters
and updates thereof from Oneita's independent certified public
accountants addressed to each of the underwriters, such letters to be
in customary form and to cover matters of the type customarily covered
in "comfort" letters to the managing underwriters in connection with
underwritten offerings by them for issuers of similar market
capitalization and reporting and financial histories; (E) to provide,
in the underwriting agreement to be entered into in connection with
such offering, indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof with respect to all
parties to be indemnified pursuant to such Section 7; and (F) to
deliver such customary documents and
8
certificates as may be reasonably requested by Holders of a majority of
the Registrable Securities included in such Registration Statement and
the managing underwriters to evidence compliance with clause (B) of
this paragraph (xiii) and with any customary conditions contained in
the underwriting agreement entered into by Oneita in connection with
such offering;
(xiv) in the case of any offering other than an underwritten
offering: (A) to obtain an opinion of counsel to Oneita (which may be
Oneita's inside counsel) at the time of effectiveness of such
Registration Statement covering such offering and an update thereof at
the time of effectiveness of any post-effective amendment to such
Registration Statement (other than by reason of incorporation by
reference of documents filed with the SEC) addressed to each Holder of
any Registrable Securities covered by such Registration Statement,
covering matters customarily covered in opinions obtained in
underwritten offerings by issuers with similar market capitalization
and reporting and financial histories; and (B) to deliver a certificate
of a senior executive officer of Oneita at the time of effectiveness of
such Registration Statement and, upon the request of Holders of a
majority of the Registrable Securities included in such Registration
Statement, updates thereof, such certificates to cover matters
customarily covered in officers' certificates delivered in connection
with underwritten offerings by issuers with similar market
capitalization and reporting and financial histories;
(xv) to make available for inspection by representatives of
the Holders of Registrable Securities being sold pursuant to the Shelf
Registration or any Demand Registration and of the underwriters, if
any, participating in such sale all financial and other records,
pertinent corporate documents and properties of Oneita, and to cause
Oneita's officers, directors and employees to supply all information
reasonably requested by any such representatives, in connection with
the Shelf Registration or such Demand Registration; provided, however,
that all information regarding such records, documents and properties
shall be kept confidential by such Persons unless disclosure of such
information is required by court or administrative order;
(xvi) to comply with all applicable rules and regulations of
the SEC relating to such Registration Statement and the distribution of
the securities being offered or otherwise necessary in order to perform
Oneita's obligations under this paragraph (a);
(xvii) to cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc. and in
the performance of any customary or required due diligence
investigation by any underwriter; and
(xviii) to take all other reasonable steps necessary and
appropriate to effect such registration in the manner contemplated by
the provisions of this Agreement.
(b) HOLDERS' OBLIGATION TO FURNISH INFORMATION. Oneita may require, as
a condition precedent to Oneita's obligations under Section 4 hereof, each
Holder of Registrable Securities as to which any registration is being effected
to furnish to Oneita such information regarding the distribution of such
securities as Oneita may from time to time reasonably request.
(c) SUSPENSION OF SALES PENDING AMENDMENT OF PROSPECTUS. Each Holder
agrees that, upon receipt of any notice from Oneita of the happening of any
event of the kind described in subclause (C), (D), (E), (F) or (G) of clause
(iii) of paragraph (a) of this Section 4, such Holder will forthwith forego or
delay the disposition of any Registrable Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by clause (xi) of such paragraph
(a), or until it is advised in writing by Oneita that the use of the applicable
9
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in such Prospectus,
and, if so directed by Oneita, such Holder will deliver to Oneita (at Oneita's
expense) all copies, other than permanent file copies, then in such Holder's
possession of any Prospectus covering such Registrable Securities. If Oneita
shall have given any such notice during a period when a Shelf Registration or
Demand Registration is in effect, the two-year period described in paragraph (b)
of Section 2 and the 90-day period described in clause (i) of paragraph (a) of
Section 3, as applicable, shall be extended by the number of days from and
including the date of the giving of such notice to and including the date when
each Holder of Registrable Securities covered by such Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated by clause (xi) of such paragraph (a) or shall have been advised in
writing by Oneita that the use of the applicable Prospectus may be resumed.
5. REGISTRATION EXPENSES.
All expenses incident to Oneita's performance of or compliance with its
obligations under the provisions of this Agreement shall be borne by Oneita,
including without limitation all (i) registration and filing fees, (ii) fees and
expenses of compliance with securities or blue sky laws, (iii) printing expenses
(including expenses of printing Prospectuses), (iv) messenger and delivery
expenses, (v) internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
(vi) fees and disbursements of its counsel and its independent certified public
accountants (including the expenses of any special audit or "comfort" letters
required by or incident to such performance or compliance), (vii) securities
acts liability insurance (if Oneita elects to obtain such insurance), (viii)
reasonable fees and expenses of any special experts retained by Oneita in
connection with any registration hereunder, (ix) reasonable fees and expenses of
other Persons retained by Oneita, and (x) reasonable fees and expenses of one
counsel for the Holders of Registrable Securities covered by each Registration
Statement, with such counsel to be selected by Holders of a majority of such
Registrable Securities (all such expenses being herein referred to as
"Registration Expenses"); provided, however, that Registration Expenses shall
not include any underwriting discounts, commissions or fees attributable to the
sale of the Registrable Securities.
10
6. PIGGYBACK REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any time during the
Demand Registration Period Oneita proposes to register any of its equity
securities under the Securities Act, whether or not for sale for its own account
(other than a registration on Form S-4 or Form S-8, or any successor or similar
forms), in a manner that would permit registration of Registrable Securities for
sale to the public under the Securities Act, it will each such time promptly
give written notice to all Persons who hold of record any Registrable Securities
of its intention to do so, of the registration form of the SEC that has been
selected by Oneita and of rights of Holders under this Section 6 (the "Section 6
Notice"). Oneita will use its best efforts to include in the proposed
registration all Registrable Securities that Oneita is requested in writing,
within 15 days after the Section 6 Notice is given, to register by the Holders
thereof; provided, however, that (i) if, at any time after giving written notice
of its intention to register any equity securities and prior to the effective
date of the registration statement filed in connection with such registration,
Oneita shall determine for any reason not to register such equity securities,
Oneita may, at its election, give written notice of such determination to all
Persons who hold of record any Registrable Securities and, thereupon, shall be
relieved of its obligation to register any Registrable Securities in connection
with such abandoned registration, without prejudice, however, to the rights of
Holders under Section 3 hereof and (ii) in case of a determination by Oneita to
delay registration of its equity securities, Oneita shall be permitted to delay
the registration of such Registrable Securities for the same period as the delay
in registering such other equity securities. No registration effected under this
Section 6 shall relieve Oneita of its obligations to effect registrations upon
request under Section 3 and, notwithstanding anything to the contrary in Section
3, no Holder shall have the right to require Oneita to register any Registrable
Securities pursuant to Section 3 until the later of (A) the completion of the
distribution of the securities offered and registered pursuant to the Section 6
Notice and (B) 90 days after the date each registration statement described in
the first sentence of this paragraph (a) is declared effective.
(b) EXPENSES. Oneita shall pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 6; provided, however, that each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Registration
Statement effected pursuant to this Section 6.
(c) PRIORITY IN INCIDENTAL REGISTRATION. If the managing underwriter
for a registration pursuant to this Section 6 that involves an underwritten
offering shall advise Oneita that, in its opinion, the inclusion of the amount
and kind of Registrable Securities to be sold for the account of Holders would
adversely affect the success of the offering for Oneita, then the number and
kind of Registrable Securities to be sold for the account of such Holders shall
be reduced (and may be reduced to zero) in accordance with the managing
underwriter's recommendation. In the event that the number of Registrable
Securities to be included in any registration is reduced (but not to zero), the
number of such Registrable Securities included in such registration shall be
allocated pro rata among all requesting Holders, on the basis of the relative
number of shares of such Registrable Securities each such Holder has requested
to be included in such registration. If, as a result of the proration provisions
of this paragraph (c), any Holder shall not be entitled to include all
Registrable Securities in a registration pursuant to this Section 6 that such
Holder has requested be included, such Holder may elect to withdraw its
Registrable Securities from the registration; provided, however, that such
withdrawal election shall be irrevocable and, after making a withdrawal
election, a Holder shall no longer have any right to include Registrable
Securities in the registration as to which such withdrawal election was made.
(d) MERGER, CONSOLIDATION, ETC. Notwithstanding anything in this
Section 6 to the contrary,
11
Holders shall not have any right to include their Registrable Securities in any
distribution or registration of equity securities by Oneita, which is a result
of a merger, consolidation, acquisition, exchange offer, recapitalization, other
reorganization, dividend reinvestment plan, stock option plan or other employee
benefit plan, or any similar transaction having the same effect.
12
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY ONEITA. In the event of any registration of any
securities of Oneita under the Securities Act pursuant to Section 3, 4 or 6
hereof, Oneita will, and hereby does, indemnify and hold harmless, to the extent
permitted by law, the seller of any Registrable Securities covered by any
Registration Statement filed to effect such registration, its directors and
officers or general and limited partners (and the directors and officers
thereof), each other Person who participates as an underwriter, if any, in the
offering or sale of such securities and each other Person, if any, who controls
such seller or any such underwriter within the meaning of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including any amounts paid in any settlement effected with
Oneita's consent, which consent shall not be unreasonably withheld) to which
such seller or any such director, officer, general or limited partner,
underwriter or controlling Person may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such securities were
registered under the Securities Act or 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, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary Prospectus, together
with the documents incorporated by reference therein (as amended or supplemented
if Oneita shall have filed with the SEC any amendment thereof or supplement
thereto), if used prior to the effective date of such Registration Statement, or
contained in the Prospectus, together with the documents incorporated by
reference therein (as amended or supplemented if Oneita shall have filed with
the SEC any amendment thereof or supplement thereto), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii) any violation
by Oneita of any federal, state or common law rule or regulation applicable to
Oneita and relating to action required of or inaction by Oneita in connection
with any such registration, and Oneita will reimburse such seller and each such
director, officer, general or limited partner, underwriter and controlling
Person for any legal or any other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that Oneita shall not be liable to any
such seller or any such director, officer, general or limited partner,
underwriter or controlling Person in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement or
amendment thereof or supplement thereto or in any such preliminary, final or
summary Prospectus in reliance upon and in conformity with written information
furnished to Oneita by or on behalf of any such seller or any such director,
officer, general or limited partner, underwriter or controlling Person, for use
in the preparation thereof; and provided further, that Oneita will not be liable
to any Person who participates as an underwriter in any underwritten offering or
sale of Registrable Securities, or to any Person who is a seller in any
non-underwritten offering or sale of Registrable Securities, or any other
Person, if any, who controls such underwriter or seller within the meaning of
the Securities Act, under the indemnity agreement in this paragraph (a) with
respect to any preliminary Prospectus or the final Prospectus (including any
amended or supplemented preliminary or final Prospectus), as the case may be, to
the extent that any such loss, claim, damage or liability of such underwriter,
seller or controlling Person results from the fact that such underwriter or
seller sold Registrable Securities to a person to whom there 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 Oneita has previously furnished copies thereof to such
underwriter or seller and such final Prospectus, as then amended or
supplemented, has corrected any such misstatement or omission. Such indemnity
shall remain in full force and effect regardless of any
13
investigation made by or on behalf of such seller or any such director, officer,
general or limited partner, underwriter or controlling Person and shall survive
the transfer of such securities by such underwriter or seller.
(b) INDEMNIFICATION BY THE SELLERS. In consideration of Oneita's
including any Registrable Securities in any Registration Statement filed in
accordance with Section 3, 4 or 6 hereof, the prospective seller of such
Registrable Securities and any underwriter shall be deemed to have agreed to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in paragraph (a) of this Section 7) Oneita and its directors and officers
and each person controlling Oneita within the meaning of the Securities Act and
all other prospective sellers and their directors, officers, general and limited
partners and respective controlling Persons 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, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to Oneita or its representatives by or on behalf of such
seller or underwriter 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 Oneita or any of the prospective sellers or any of their
respective directors, officers, general or limited partners or controlling
Persons and shall survive the transfer of such securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 7, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; provided, however, that if, in any
indemnified party's reasonable judgment, a conflict of interest between such
indemnified party and the indemnifying party exists in respect of such claim,
then such indemnified party shall have the right to participate in the defense
of such claim and to employ one firm of attorneys at the indemnifying party's
expense to represent such indemnified party; and provided further that if, in
the reasonable judgment of any indemnified party, a conflict of interest between
such indemnified party and any other indemnified parties exists in respect of
such claim, each such indemnified party shall be entitled to one additional
counsel and the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel. Once the indemnifying party has assumed the
defense of any claim, no indemnified party will consent to entry of any judgment
or enter into any settlement without the indemnifying party's consent to such
judgment or settlement, which shall not be unreasonably withheld.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding paragraphs of this Section 7 (with appropriate modifications)
shall be given by Oneita and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any
state securities and "blue sky" laws.
(e) CONTRIBUTION. If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
paragraph (a), (b) or (d) of this Section 7, then
14
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 such paragraph (a), (b) or (d) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other hand in connection with statements
or omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. 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. Oneita agrees, and the Holders (in consideration of Oneita's including
any Registrable Securities in any Registration Statement filed in accordance
with Section 3, 4 or 6 hereof) shall be deemed to have agreed, that it would not
be just and equitable if contributions pursuant to this paragraph (e) were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the first
sentence of this paragraph (e). 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 paragraph (e) 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 paragraph (c) of this Section 7 if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this paragraph (e). 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. Promptly after receipt by an
indemnified party under this paragraph (e) 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 paragraph (e), such indemnified
party shall notify the indemnifying party in writing of the commencement thereof
if the notice specified in paragraph (c) of this Section 7 has not been given
with respect to such action; provided, however, that the omission so to notify
the indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise under this
paragraph (e), except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. Notwithstanding anything in this
paragraph (e) to the contrary, no indemnifying party (other than Oneita) shall
be required pursuant to this paragraph (e) to contribute any amount in excess of
the proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or liabilities
of the indemnified parties relate.
8. RULE 144.
Oneita shall file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder, and shall take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitations of the exemptions provided by Rule 144. Upon the request of any
Holder, Oneita shall deliver to such Holder a written statement stating whether
it has complied with such information and requirements.
15
9. UNDERWRITTEN REGISTRATIONS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration or any Demand Registration are to be sold in
an underwritten offering, the underwriter or underwriters and managing
underwriter or managing underwriters that will administer the offering shall be
selected by, and the terms of any underwriting agreement and other underwriting
arrangements shall be approved by, the Holders of a majority in aggregate amount
of Registrable Securities included in such offering; provided, however, that
such underwriters and managing underwriters shall be subject to the approval of
Oneita, which approval shall not be unreasonably withheld.
(b) AGREEMENTS OF SELLING HOLDERS. No Holder shall sell any of its
Registrable Securities in any underwritten offering pursuant to a registration
hereunder unless such Holder (i) agrees to sell such Registrable Securities on
the basis provided in any underwriting agreement or other underwriting
arrangements approved by the Persons entitled hereunder to approve such
agreements or arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting agreements or other underwriting
arrangements.
10. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALES BY HOLDERS. To the extent not
inconsistent with applicable law, each Holder that is timely notified in writing
by the managing underwriter or underwriters shall not effect any public sale or
distribution (including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering (other than pursuant to an employee stock
option, stock purchase, stock bonus or similar plan, pursuant to a merger, an
exchange offer or a transaction of the type specified in Rule 145(a) under the
Securities Act or pursuant to a "shelf" registration), any securities of Oneita
similar to any such issue or any securities of Oneita convertible into or
exchangeable or exercisable for any such issue or any similar issue, except as
part of such registration, during the 10-day period prior to the effective date
of the applicable registration statement, or during the period beginning on such
effective date and ending on the later of (i) the completion of the distribution
of such securities pursuant to such offering and (ii) 90 days after such
effective date.
(b) RESTRICTIONS ON PUBLIC SALES BY ONEITA. Oneita shall not effect any
public sale or distribution of any issue of the same class or series as
Registrable Securities being registered in an underwritten offering (other than
pursuant to an employee stock option, stock purchase, stock bonus or similar
plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or pursuant to a "shelf"
registration), any securities of Oneita similar to any such issue or any
securities of Oneita convertible into or exchangeable or exercisable for any
such issue, except as part of such registration, during the 10-day period prior
to the effective date of the applicable registration statement, or during the
period beginning on such effective date and ending on the later of (i) the
completion of the distribution of such securities pursuant to such offering and
(ii) 90 days after such effective date.
16
11. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended and Oneita may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if Oneita shall have obtained
the written consent to such amendment, action or omission to act, of the Holders
of a majority of the Registrable Securities then outstanding (and, in the case
of any amendment, action or omission to act that adversely affects any Holder or
group of Holders differently from any of the other Holders, the written consent
of such Holder or members of such group holding a majority of the Registrable
Securities held by such group). Holders shall be bound from and after the date
of the receipt of a written notice from Oneita setting forth such amendment or
waiver by any consent authorized by this paragraph (a), whether or not the
certificates representing such Registrable Securities shall have been marked to
indicate such consent.
(b) SUCCESSORS, ASSIGNS AND TRANSFEREES. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of Oneita, the
Holders and their respective successors, assigns and transferees.
(c) INTEGRATION. The provisions of this Agreement and the documents
referred to herein or delivered pursuant hereto that form a part hereof contain
the entire understanding of Oneita and the Initial Holders with respect to its
subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth herein. The
provisions of this Agreement supersede all prior agreements and understandings
between Oneita and the Initial Holders with respect to its subject matter.
(d) NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
if to Oneita, to:
[Name and address]
Attention:
Telecopier:
Telephone Confirmation:
with a copy to:
[Name and address]
Attention:
Telecopier:
Telephone Confirmation:
If to any Holder, to the address of such Holder as shown in the stock
record books of Oneita, with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: David C.L. Frauman, Esq.
Telecopier: (212) 530-5219
Telephone Confirmation: (212) 530-5014
17
All such notices and communications shall be deemed to have been given or made
(i) when delivered by hand, (ii) five Business Days after being deposited in the
mail, postage prepaid, (iii) when telexed answer-back received or (iv) when
telecopied, receipt acknowledged.
(e) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit, expand or otherwise affect
the meaning of the provisions hereof.
(f) SEVERABILITY. In the event that any one or more of the provisions,
paragraphs, subparagraphs, sentences, clauses, subclauses phrases or words
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision, paragraph, word, clause,
phrase or sentence in every other respect and of the remaining provisions,
paragraphs, subparagraph, sentences, clauses, subclauses, phrases or words
hereof shall not be in any way impaired, it being intended that all rights,
powers and privileges of Oneita and the Holders shall be enforceable to the
fullest extent permitted by law.
(g) GOVERNING LAW. The provisions of this Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of New
York, without regard to the principles of conflicts of laws thereof, as if it
were a contract between Oneita and the Initial Holders made and to be performed
entirely within that State.
(h) TERMINATION. The provisions of this Agreement shall terminate, and
thereby become null and void, at the end of the Demand Registration Period;
provided, however, that the provisions of Section 7 shall survive the
termination of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ONEITA INDUSTRIES, INC.
By:_______________________
Name:
Title:
[INITIAL HOLDERS]
By:_______________________
Name:
Title: