Exhibit 4.6
EXECUTION COPY
================================================================================
WARRANT REGISTRATION RIGHTS AGREEMENT
Dated as of August 6, 1998
Among
Globe Holdings, Inc.
and
BancAmerica Robertson Stephens
================================================================================
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of August 6, 1998 (this
"Agreement"), between Globe Holdings, Inc., a Massachusetts corporation (the
"Company"), and BancAmerica Robertson Stephens (the "Initial Purchaser").
Pursuant to the terms of a Purchase Agreement effective as of July 30, 1998
(the "Purchase Agreement"), between the Company and Initial Purchaser, the
Company has agreed to issue and sell to the Initial Purchaser an aggregate of
49,086 warrants (each, a "Warrant") to be issued pursuant to the provisions of a
Warrant Agreement (the "Warrant Agreement"), to be dated as of the date hereof,
between the Company and Norwest Bank Minnesota, National Association (the
"Warrant Agent"), each Warrant initially entitling the holder thereof to
purchase 1.4155 shares of Common Stock (as defined below) of the Company at an
exercise price of $.01 per share, as part of 49,086 units (the "Units"), each
Unit consisting of $1,000 principal amount at maturity of 14% Senior Discount
Notes due 2009 of the Company (each a "Note" and collectively, the "Notes") to
be issued pursuant to the provisions of an Indenture dated as of the date hereof
(the "Indenture") between the Company and Norwest Bank Minnesota, National
Association, and one Warrant. The Note and the Warrant included in each Unit
will become separately transferable at the close of business upon the earliest
to occur of (i) the date that is six months after the Issue Date (as defined
below); (ii) the commencement of an exchange offer with respect to the Notes
undertaken pursuant to the Registration Rights Agreement (as defined below),
(iii) the date a Shelf Registration Statement (as defined in the Registration
Rights Agreement) with respect to the Notes is declared effective, (iv) a Change
of Control (as defined below) and (v) such date as the Initial Purchaser may in
its sole discretion deem appropriate.
In consideration of the foregoing and of the mutual agreements contained
herein and in the Purchase Agreement, the Company and the Warrant Agent hereby
agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Auditors" means, at any time, the independent auditors of the Company at
such time.
"Board" means the board of directors of the Company from time to time.
"Comfort Letter" has the meaning specified in Section 3 hereof.
"Commission" means the United States Securities and Exchange Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the Class A Common Stock, $0.01 par value, of the
Company.
"Company" has the meaning specified in the preamble to this Agreement.
"Company Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Expiration Date" means August 1, 2009.
"Holders" means the record holders of the Warrants and the record holders
of Warrant Shares (or other securities) received upon exercise thereof.
"Includible Secondary Shares" has the meaning specified in Section 2
hereof.
"Indenture" has the meaning specified in the preamble to this Agreement.
"Initial Purchaser" has the meaning specified in the preamble to this
Agreement.
"Issue Date" means the date the Warrants are originally issued under the
Warrant Agreement.
"Managing Underwriter" has the meaning specified in Section 2 hereof.
"Notes" has the meaning specified in the recitals to this Agreement.
"Opinion" has the meaning specified in Section 3 hereof.
"Other Shares" has the meaning specified in Section 2 hereof.
"Piggy-back Registration Rights" has the meaning specified in Section 2
hereof.
"Purchase Agreement" has the meaning specified in the preamble to this
Agreement.
"Registration Agreement" means the Registration Agreement dated as of July
31, 1998, as amended from time to time, among the Company and the other
signatories thereto.
"Registration Rights Agreement" means the Registration Rights Agreement
dated the date hereof between the Company and the Initial Purchaser.
"Registration Statement" has the meaning specified in Section 2 hereof.
"Resale Shelf" has the meaning specified in Section 3 hereof.
"Resales Registration Statement" has the meaning specified in Section 9
hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Units" has the meaning specified in the preamble to this Agreement.
"Warrant" has the meaning specified in the preamble to this Agreement.
2
"Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Warrant Agreement" has the meaning specified in the preamble to this
Agreement.
"Warrant Registration Statement" has the meaning specified in Section 3
hereof.
"Warrant Shares" means the Common Shares issuable upon exercise of the
Warrants, such other securities as shall be issuable upon the exercise of
the Warrants, or the Common Shares or such other securities received upon
the exercise thereof.
2. Piggy-Back Registration Rights.
(a) If the Company proposes to file a Registration Statement with the
Commission respecting an offering of any shares of Common Stock (or other
securities) issuable upon exercise of the Warrants (other than (i) an
offering registered solely on Form S-4 or S-8 or any successor form thereto
and (ii) the initial public offering of shares of Common Stock (or other
securities) issuable upon exercise of the Warrants if no shareholder of the
Company participates therein), the Company shall give prompt written notice
to all the Holders of Warrants or Common Shares or such other securities
received upon exercise thereof at least 30 days prior to the initial filing
of the registration statement relating to such offering (the "Registration
Statement"). Each such Holder shall have the right, within 20 days after
delivery of such notice, to request in writing that the Company include all
or a portion of such of the Warrant Shares in such Registration Statement
("Piggy-back Registration Rights"). The Company shall include in the public
offering all of the Warrant Shares that a Holder has requested be included,
unless the underwriter for the public offering or the underwriter managing
the public offering (in either case, the "Managing Underwriter") delivers a
notice (a "Cutback Notice") pursuant to Section 2(b) or 2(c) hereof. The
Managing Underwriter may deliver one or more Cutback Notices at any time
prior to the execution of the underwriting agreement for the public
offering.
(b) If a proposed public offering (i) includes both securities to be
offered for the account of the Company ("Company Shares") and shares to be
sold by shareholders and (ii) Company Shares have a priority over the
inclusion of any Other Shares (as defined below) in such public offering,
the provisions of this Section 2(b) shall be applicable if the Managing
Underwriter delivers a Cutback Notice stating that, in its opinion, the
number of Common Shares that selling shareholders propose to sell therein,
whether or not such selling shareholders have the right to include shares
therein (the "Other Shares"), plus the number of Warrant Shares that the
Holders have requested to be sold therein, plus the Company Shares, exceeds
the maximum number of shares specified by the Managing Underwriter in such
Cutback Notice which can be sold in an orderly manner in such offering
within a price range acceptable to the Company (or to the holders of Other
Shares initially requesting registration if the offering is being effected
pursuant to a "demand" registration). Such maximum number of shares that
may be so sold, excluding the Company Shares, are referred to as the
"Includible Shares."
3
If the Managing Underwriter delivers such Cutback Notice, the Company shall
be entitled to include all of the Company Shares in the public offering and
each requesting Holder shall be entitled to include in the public offering
up to its pro rata portion of the Includible Shares on a pro rata basis
with the holders of any Other Shares that are proposed to be sold in such
public offering.
(c) If a proposed public offering is (i) entirely a secondary
offering or (ii) shares to be sold by selling shareholders in such public
offering have a priority over the inclusion of any Company Shares therein,
the provisions of this Section 2(c) shall be applicable if the Managing
Underwriter delivers a Cutback Notice stating that, in its opinion, the
aggregate number of Warrant Shares and Other Shares proposed to be sold
therein exceeds the maximum number of shares (the "Includible Secondary
Shares") specified by the Managing Underwriter in such Cutback Notice which
can be sold in an orderly manner in such offering within a price range
acceptable to the Company (or to the holders of Other Shares initially
requesting registration if the offering is being effected pursuant to a
"demand" registration). If the Managing Underwriter delivers such Cutback
Notice, each requesting Holder shall be entitled to include in the public
offering up to its pro rata portion of the Includible Secondary Shares on a
pro rata basis with the holders of any Other Shares that are proposed to be
sold in such public offering.
(d) Subject to the foregoing, the underwriting agreement for such
public offering shall provide that each requesting Holder shall have the
right to sell its Warrant Shares to the underwriters and that the
underwriters shall purchase the Warrant Shares at the price paid by the
underwriters for the Common Shares sold by the Company and/or selling
shareholders, as the case may be.
3. Shelf Registration.
(a) If only the Company sells Common Shares in an initial public
offering or all of the Warrant Shares have not been sold in a public
offering, the Company shall, upon the request of one or more Holders of
Warrants, use its best efforts to cause to be filed pursuant to Rule 415
under the Securities Act a shelf registration statement on the appropriate
form (the "Warrant Registration Statement") covering the issuance of the
Warrant Shares upon exercise of the Warrants and shall use its best efforts
to cause the Warrant Registration Statement to become effective under the
Securities Act by the later of (i) 180 days after the closing date of the
initial public offering and (ii) the first anniversary of the Issue Date;
provided, however, that if the Commission shall request that the Company
register the resale of the Warrant Shares instead of the issuance thereof,
the Warrant Registration Statement shall register such resale as opposed to
such issuance. The Company shall use reasonable efforts to keep the Warrant
Registration Statement continuously effective until such time as all
Warrants have been exercised or have expired or in the case the proviso in
the foregoing sentence shall apply, until such time as all Warrant Shares
have been resold. Prior to filing the Warrant Registration Statement or any
amendment thereto, the Company shall provide a copy thereof to the Initial
Purchaser and its counsel and afford them a reasonable time to comment
thereon.
4
(b) If the Warrant Registration Statement shall register the sale of
the Warrant Shares (a "Resale Shelf") as provided in Section 3(a)(2) above,
the Company agrees to:
(i) make available for inspection by a representative of the
Holders, any underwriter participating in any disposition pursuant to
such Resale Shelf and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, financial and
other records, documents and properties of the Company that are
pertinent to the conduct of due diligence customary for an
underwritten offering, and cause the officers, directors and employees
of the Company to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection
with a Resale Shelf; provided, however, that such persons shall first
agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless and to the extent that disclosure
of such information is required by law or such information becomes
generally available to the public other than as a result of a
disclosure or failure to safeguard such information by such person;
(ii) use its best efforts to cause all Warrant Shares sold under
a Resale Shelf to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the
Company are then listed, to the extent such Warrant Shares satisfy
applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus
included in such Resale Shelf to Holders that are selling Warrant
Shares pursuant to such Resale Shelf;
(iv) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrant Shares, upon the
effectiveness of such Resale Shelf, a customary "10b-5" opinion of
independent counsel (an "Opinion") and a customary "cold comfort"
letter of independent auditors (a "Comfort Letter");
(v) cause to be provided to Holders and beneficial owners of
Warrant Shares an Opinion and Comfort Letter with respect to each Form
10-K and Form 10-Q, including any amendments thereto, that is
incorporated by reference in such Resale Shelf; and
(vi) notify the Warrant Agent, for distribution to the Holders,
(A) when the Resale Shelf has become effective and when any post-
effective amendment thereto has been filed and becomes effective, (B)
of any request by the Commission or any state securities authority for
amendments and supplements to the Resale Shelf or of any material
request by the Commission or any state securities authority for
additional information after the Resale Shelf has become effective,
(C) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of the Resale
Shelf or the initiation of any proceedings for that purpose, (D) if,
between the effective date of the Resale Shelf and the closing
5
of any sale of Warrant Shares covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, including this
Agreement, relating to disclosure cease to be true and correct in all
material respects or if the Company receives any notification with
respect to the suspension of the qualification of the Warrant Shares
for sale in any jurisdiction or the initiation of any proceeding for
such purpose, (E) of the happening of any event during the period the
Resale Shelf is effective such that such Resale Shelf or the related
prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make statements therein not misleading and (F) of any determination by
the Company that a post-effective amendment to a Registration
Statement would be appropriate. The Holders hereby agree to suspend
use of the prospectus contained in a Resale Shelf upon receipt of such
notice under clause (E) or (F) above until the Company has amended or
supplemented such prospectus to correct such misstatement or omission.
4. Suspension.
Notwithstanding the foregoing, during any consecutive 365-day period, the
Company shall have the privilege to suspend availability of the Warrant
Registration Statement and the related prospectus for (a) up to two 30-
consecutive-day periods, except during the 30 days immediately prior to the
Expiration Date, if the Board determines in good faith that there is a valid
purpose for such suspension and provides notice of such determination to the
Holders at their addresses appearing in the register of Warrants maintained by
the Warrant Agent and (b) five additional, non-consecutive three day periods,
except during the 30 day period immediately prior to the Expiration Date, if the
Board determines in good faith that the Company cannot provide adequate
disclosure during such period due to circumstances beyond its control.
5. Blue Sky.
The Company shall use its reasonable best efforts to register or qualify
the Warrant Shares proposed to be sold or issued pursuant to the Registration
Statement or the Warrant Registration Statement under all applicable securities
or "blue sky" laws of all jurisdictions in the United States in which any Holder
of Warrants may or may be deemed to purchase Warrant Shares upon the exercise of
Warrants or resale of the Warrant Shares, as the case may be, and shall use its
reasonable best efforts to maintain such registration or qualification through
the earlier of (A) the date upon which all Warrants have been exercised or all
Warrant Shares have been resold, as the case may be, under the Warrant Shelf
Registration Statement and (B) the Expiration Date; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
broker or a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 5, (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
6. Accuracy of Disclosure.
6
The Company (and its successors) represents and warrants to each Holder
(and each beneficial owner of a Warrant or Warrant Share) and agrees for the
benefit of each Holder (and each beneficial owner of a Warrant or Warrant Share)
that, except during any period in which the availability of the Warrant
Registration Statement has been suspended, (i) the Warrant Registration
Statement and the documents incorporated by reference therein will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading; and (ii) the prospectus
delivered to such Holder upon its exercise of Warrants or pursuant to which such
Holder sells its Warrant Shares, as the case may be, and the documents
incorporated by reference therein will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties set forth
in this Section 6 do not apply to statements or omissions made in reliance on
and in conformity with information relating to the Holders furnished to the
Company in writing by or on behalf of the Holders expressly for use in the
Warrant Registration Statement or any such prospectus.
7. Indemnity.
The Company hereby agrees to indemnify each beneficial owner of a Warrant
and each person, if any, who controls any beneficial owner of a Warrant within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934 (the "Exchange Act"), or is under common control
with, or is controlled by, any beneficial owner of a Warrant (whether or not it
is, at the time the indemnity provided for in this Section 7 is sought, such a
beneficial owner), from and against all losses, damages or liabilities which
such beneficial owner or any such controlling or affiliated person suffers as a
result of any breach, on the date of any exercise of a Warrant by such
beneficial owner or the resale of any Warrant Share by such Holder, in either
case pursuant to the Warrant Registration Statement, of the representations,
warranties or agreements contained in Section 6. Each beneficial owner of a
Warrant Share sold pursuant to a Resale Shelf, by accepting its beneficial
ownership of a Warrant, hereby (i) agrees to provide the Company with
information with respect to it that the Company reasonably requests in
connection with any Resale Shelf and (ii) agrees, severally and not jointly, to
indemnify the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act against any liability incurred by it or
such controlling person as a result of any misstatement of information provided
by such beneficial owner to the Company in writing expressly for inclusion in
the Resale Shelf.
8. Expenses.
All expenses incident to the Company's performance of or compliance with
its obligations under this Agreement will be borne by the Company, regardless of
whether a Registration Statement or Warrant Registration Statement becomes
effective, including without limitation (i) all Commission or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in preparing,
word processing, printing and distributing any registration statement, any
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Agreement, (iv) the reasonable
fees (including legal
7
fees and expenses) and disbursements of the Warrant Agent, (v) the reasonable
fees and disbursements of counsel for the Company and (vi) the fees and
disbursements, if any, of the Auditors, but in each case excluding (x) fees and
disbursements of counsel retained by the participating Holders and (y) the
Holders' share of underwriting discounts and commissions.
9. Resale Shelf Registration Statement.
In the event that the Initial Purchaser or any successor thereto, in its
opinion, becomes an Affiliate (as such term is defined in Rule 144 under the
Securities Act) of the Company, or any successor thereto, the Company (or its
successor) shall use its best efforts to cause to be filed as soon as
practicable after receiving notice thereof from such Initial Purchaser (or its
successor) a shelf registration statement (the "Resales Registration Statement")
under the Securities Act providing for the resale by such Initial Purchaser (or
its successor) of all Warrants and Common Shares it acquires from time to time
and to have such shelf registration statement declared effective by the
Commission. The provisions of this Agreement concerning the Warrant Registration
Statement shall apply to the Resales Registration Statement as if such Resales
Registration Statement were the Warrant Registration Statement (except that the
Company (or its successor) will use its best efforts to keep the Resales
Registration Statement effective until the earlier of (i) the Expiration Date
and (ii) such time as the Initial Purchaser shall, in its opinion, cease to be
an Affiliate of the Company, as evidenced by written notice sent promptly upon
such event). Notwithstanding anything to the contrary herein, the Company shall
not be required to effect a Resales Registration Statement if the Initial
Purchaser shall have ceased to make a market in the Warrants and Common Stock.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company agrees that it will not
enter into any agreement which is inconsistent with the rights granted to
the Holders of Warrants or Warrant Shares in this Agreement or otherwise
conflicts with the provisions hereof. The Company represents that the
rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the
Company's other issued and outstanding securities under any agreements
after giving effect to any consents and amendments received on or prior to
the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of Holders of at least a majority of the outstanding Warrants affected by
such amendment, modification, supplement, waiver or consent; provided that
any amendment, modification or supplement to this Agreement which, in the
good faith opinion of the Board of Directors of the Company (and evidenced
by a resolution of such board), does not adversely affect any Holder, shall
not be subject to such requirement for written consent.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most
8
current address given by such Holder to the Company by means of a notice
given in accordance with the provisions of this Section 10(c); (ii) if to
the Company, initially at the Company's address set forth in the Warrant
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 10(c); and (iii) if to the
Warrant Agent, initially at the Warrant Agent address set forth in the
Warrant Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 10(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air
courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Warrants in violation of the terms of the
Purchase Agreement or the Warrant Agreement. If any transferee of any
Holder shall acquire Warrants, in any manner, whether by operation of law
or otherwise, such Warrants shall be held subject to all of the terms of
this Agreement and the Warrant Agreement, and by taking and holding such
Warrants such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
or the Warrant Agreement and such person shall be entitled to receive the
benefits hereof.
(e) Purchases and Sales of Warrants. The Company shall not, and shall
use its best efforts to cause its affiliates (as defined in Rule 405 under
the Securities Act) not to, purchase and then resell or otherwise transfer
any Warrants other than Warrants acquired and canceled.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries of the agreements made hereunder between the Company and the
Warrant Agent, and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
Notwithstanding anything to the contrary contained herein, Section 9 hereof
shall not be amended, modified or supplemented without the prior written
consent of BancAmerica Robertson Stephens and the Company's obligations
under Section 9 will survive the termination of this Agreement and the
performance of all other obligations under this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
9
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to
judgement, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such
immunity in respect of their obligations under this Agreement to the
fullest extent permitted by law.
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Globe Holdings, Inc.
By /s/ Thomas A. Rodgers, III
------------------------------
Name: Thomas A. Rodgers, III
Title: President
BancAmerica Robertson Stephens
By /s/ Thomas J. McGrath
------------------------------
Name: Thomas J. McGrath
Title: Managing Director
11