EXHIBIT 4.5
GLOBE HOLDINGS, INC.
REGISTRATION AGREEMENT
----------------------
THIS REGISTRATION AGREEMENT (this "Agreement") dated as of July 31,
1998 is made by and among (i) Globe Holdings, Inc., a Massachusetts company
formerly known as Globe Manufacturing Co. (the "Company"), (ii) the Persons
listed on Schedule A attached hereto (the "CHS Group"), (iii) the Persons listed
on Schedule B attached hereto (the "Other Stockholders"), and (iv) each other
Person who, at any time, acquires securities of the Company and, with the
consent of CHS, executes a counterpart of this Agreement or otherwise agrees to
be bound by this Agreement (any such Person shall be deemed to be an Other
Stockholder, unless such Person and CHS agree that such Person shall be deemed
to be a member of the CHS Group). The CHS Group and the Other Stockholders are
collectively referred to herein as the "Stockholders". Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in Section 9 hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Demand Registrations.
(a) Requests for Registration. At any time the holders of a majority
of the CHS Registrable Securities may request registration under the Securities
Act of all or part of their Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registrations") or, if available, on Form S-2
or S-3 or any similar short-form registration ("Short-Form Registrations"). All
registrations requested pursuant to this Section 1(a) are referred to herein as
"Demand Registrations." Each request for a Demand Registration shall specify
the approximate number of CHS Registrable Securities requested to be registered
and the anticipated per share price range for such offering. Within ten days
after receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to Section 1(d) below, will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of a majority of the CHS
Registrable Securities shall be entitled to request unlimited Long-Form
Registrations in which the Company will pay all Registration Expenses (as
defined below in Section 5). All Long-Form Registrations shall be underwritten
registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), the holders of a majority of
the CHS Registrable Securities shall 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 permitted to use any applicable short form. After the Company has
become subject to the reporting requirements of the Securities Exchange Act of
1934, as amended, the Company shall use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities. All
Short-Form Registrations shall be underwritten registrations, unless otherwise
agreed to by the Company.
(d) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities which are not Registrable Securities or
Warrant Shares without the prior written consent of the holders of a majority of
the Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities, Warrant Shares and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities, Warrant Shares and other securities, if any, which can be sold in an
orderly manner in such offering within the price range acceptable to the holders
of a majority of the CHS Registrable Securities initially requesting
registration, the Company will include in such registration (i) first, the
number of Registrable Securities and Warrant Shares requested to be included in
such registration which in the opinion of such underwriters can be sold without
adverse effect, pro rata among the respective holders thereof on the basis of
the number of Registrable Securities and/or Warrant Shares, as the case may be,
owned by each such holder and (ii) second, other securities requested to be
included in such Demand Registration, pro rata among the holders of such
securities on the basis of the number of such securities owned by each such
holder.
(e) Restrictions on Demand Registrations. The Company will not
be to effect any Long Form Registration within six months after the effective
date of a previous Long Form Registration. The Company may postpone for up to
six months the filing or the effectiveness of a registration statement for a
Demand Registration if the Company and the holders of at least a majority of the
CHS Registrable Securities agree that such Demand Registration would reasonably
be expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; provided that in such event, the
Company shall pay all Registration Expenses in connection with such
registration. The Company may delay a Demand Registration hereunder only once in
any twelve-month period.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its equity securities under the Securities Act (other than (i) pursuant to a
Demand Registration, (ii) pursuant to a registration on Form S-4 or S-8 or any
successor or similar forms, or (iii) pursuant to an initial public offering of
Common Stock) and the registration form to be used may be used for
2
the registration of Registrable Securities (a "Piggyback Registration"), whether
or not for sale for its own account, the Company will give prompt written notice
to all holders of Registrable Securities of its intention to effect such a
registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) 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 offering exceeds the number which
can be sold in an orderly manner in such offering within the price range
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities and Warrant Shares requested to be included in such registration, pro
rata among the holders thereof on the basis of the number of Registrable
Securities and/or Warrant Shares, as the case may be, owned by each such holder,
and (iii) third, other securities requested to be included in such registration
pro rata among the holders of such securities on the basis of the number of such
securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (it being understood that secondary registrations on behalf of
holders of Registrable Securities are addressed in Section 1 above rather than
this Section 2(d)), and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities and Warrant Shares requested to
be included therein by the holders requesting such registration and by the
holders of Warrant Shares, respectively, pro rata among the holders of such
securities and Warrant Shares on the basis of the number of securities and/or
Warrant Shares, as the case may be, owned by each such holder, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
Registrable Securities owned by each such requesting holder, and (iii) third,
other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of the investment banker(s) and manager(s)
for the offering must be approved by the holders of a majority of the
Registrable Securities included in such Piggyback Registration, which approval
shall not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible
3
or exchangeable into or exercisable for its equity securities under the
Securities Act (except on Form S-4 or S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities, options or rights convertible into
or exchangeable or exercisable for such securities, during the seven days prior
to and the 180-day period (the "Lock-Up Period") beginning on the effective date
of any underwritten public offering of the Company's equity securities
(including Demand and Piggyback Registrations) (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree; provided, however, that, after the expiration
of the Lock-Up Period related to the Company's initial public offering of Common
Stock, the foregoing restriction shall not apply to any holder of Registrable
Securities holding less than one (1) percent of the outstanding Common Stock of
the Company as of the effective date of any such underwritten public offering.
(b) The Company (i) agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten public offering of the Company's equity securities (including
Demand and Piggyback Registrations) (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree and (ii) shall cause each holder of its Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, purchased from
the Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best 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:
(a) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed);
4
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of either (i) not less than six months (subject
to extension pursuant to Section 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(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 reasonably requests 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 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 subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of the holders of
a majority of the securities included in such registration, the Company will
prepare and furnish, to any seller who requests, a reasonable number of copies
of a supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on a securities exchange or the NASD
automated quotation system and, if listed on the NASD
5
automated quotation system, use its reasonable efforts to secure designation of
all such Registrable Securities covered by such registration statement as a
NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of
the Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority 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, effecting a stock split
or a combination of shares);
(i) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(j) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(k) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(l) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters, which letter shall be addressed to the
underwriters; and
(m) obtain an opinion from the Company's outside counsel in customary
form and covering such matters of the type customarily covered by such opinions,
which opinion shall be addressed to the underwriters.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
6
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians 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"), will be borne as provided in this
Agreement, except that the Company will, in any event, pay its 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 and 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 or on
a securities exchange or the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the full
extent permitted by law, each holder of Registrable Securities, its officers,
directors, agents, and employees and each Person who controls such holder
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, together with reasonable costs and expenses
(including reasonable attorney's fees), to which such indemnified party may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained (A) in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or (B) in any application or other document or communication
(in this Section 6 collectively called an "application") executed by or on
behalf of the Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify any
securities covered by such registration statement under the "blue sky" or
securities laws thereof, or (ii) any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Company will reimburse such holder and each such
director, officer and controlling Person for any legal or any other expenses
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding;
7
provided, however, that the Company shall not be liable 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 an untrue statement
or alleged untrue statement, or omission or alleged omission, made in such
registration statement, any such prospectus or preliminary prospectus or any
amendment or supplement thereto, or in any application, in reliance upon, and in
conformity with, written information prepared and furnished to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the full extent permitted by law, will indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective directors, officers, agents and employees and each other Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, joint or several, together with reasonable
costs and expenses (including reasonable attorney's fees), to which such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such holder expressly for
use therein; provided, however, that the obligation to indemnify will be
individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a
8
claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnifying party shall not, except with the approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a release from all liability
in respect to such claim or litigation without any payment or consideration
provided by such indemnified party.
(e) If the indemnification provided for in this Section 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any losses, claims, damages or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other from the sale of Registrable Securities pursuant to the
registered offering of securities as to which indemnity is sought or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other in connection with the
registration statement on the other in connection with the statement or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) to the Company bear to the total net proceeds from
the offering (before deducting expenses) to the sellers of Registrable
Securities and any other sellers participating in the registration statement.
The relative fault of the Company on the one hand and of the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other shall be determined by reference to, among other things,
whether the untrue or alleged omission to state a material fact relates to
information supplied by the Company or by the sellers of Registrable Securities
or other sellers participating in the registration statement and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the sellers of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the sellers of Registrable Securities
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 immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any
9
such action or claim. Notwithstanding the provisions of this Section 6, no
seller of Registrable Securities shall be required to contribute any amount in
excess of the net proceeds received by such Seller from the sale of Registrable
Securities covered by the registration statement filed pursuant hereto. 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.
(f) The indemnification and contribution by any such party provided
for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten 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 (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 4(e). In the
event the Company shall give any such notice, the applicable time period
mentioned in Section 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this Section 7 to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 4(e).
8. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company will file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted
10
by the Securities and Exchange Commission under the Securities Act (as such rule
may be amended from time to time) or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
9. Definitions
"CHS Registrable Securities" means (i) all Common Stock received by
members of the CHS Group pursuant to Section 2.01(b) of the Merger Agreement,
(ii) all other Common Stock otherwise acquired by a member of the CHS Group, and
(iii) all Common Stock issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) or (ii) above upon exercise,
conversion or exchange or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular CHS Registrable Securities, such
securities shall cease to be CHS Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the Securities
Act or sold to the public through a broker, dealer or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in force) or
repurchased by the Company or any Subsidiary. For purposes of this Agreement, a
Person shall be deemed to be a holder of CHS Registrable Securities, and the CHS
Registrable Securities shall be deemed to be in existence, whenever such Person
has the right to acquire directly or indirectly such CHS Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of CHS
Registrable Securities hereunder.
"CHS" means Code, Hennessy & Simmons III, L.P., a Delaware limited
partnership.
"Class A Common Stock" means the Company's Class A Common Stock, par
value $0.01 per share.
"Class C Common Stock" means the Company's Class C Common Stock, par
value $0.01 per share.
"Common Stock" means the Class A Common Stock and the Class C Common
Stock.
"Merger Agreement" means that certain Agreement and Plan of Merger, as
amended, dated as of June 23, 1998 by and between Globe Acquisition Company and
the Company.
"Offering Memorandum" means the Company's offering memorandum dated
July 30, 1998 related to the issuance of 49,086 units consisting of 14% senior
discount notes due 2009 and warrants to purchase 69,481 shares of Class A Common
Stock.
"Other Registrable Securities" means (i) all Class A Common Stock
received by Other Stockholders pursuant to the transactions contemplated by the
Merger Agreement, (ii) all other Class A Common Stock otherwise acquired by an
Other Stockholder, (iii) all Class A Common Stock issued or issuable upon
conversion of the Class C Common Stock, and (iv) all Class A
11
Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clauses (i) or (ii) above upon exercise, conversion or
exchange or by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other reorgan
ization; provided that Common Stock received in connection with options granted
after the date hereof pursuant to the Company's 1998 Stock Option Plan shall not
constitute Other Registrable Securities. As to any particular Other Registrable
Securities, such securities shall cease to be Other Registrable Securities when
they have been distributed to the public pursuant to a offering registered under
the Securities Act or sold to the public through a broker, dealer or market
maker in compliance with Rule 144 under the Securities Act (or any similar rule
then in force) or repurchased by the Company or any Subsidiary. For purposes of
this Agreement, a Person shall be deemed to be a holder of Other Registrable
Securities, and the Other Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Other Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Other Registrable Securities hereunder.
"Person" means an individual, a partnership, a joint venture, an
association, a joint stock company, a corporation, a limited liability company,
a trust, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means the CHS Registrable Securities and the
Other Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Warrant" means a warrant to be issued pursuant to a warrant agreement
to be dated as of August 6, 1998, between the Company and Norwest Bank
Minnesota, National Association as warrant agent, to purchase 1.4155 shares of
Class A Common Stock at an exercise price of $0.01 per share, substantially as
described in the Offering Memorandum.
"Warrant Shares" means the shares of Class A Common Stock issued or
issuable upon exercise of the Warrants, which shares are to be governed by a
warrant registration rights agreement between the Company and BancAmerica
Robertson Stephens to be entered into on August 6, 1998, substantially as
described in the Offering Memorandum.
12
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which 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).
(c) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the Registrable
Securities; provided, however, that in the event that such amendment or waiver
would treat a holder or group of holders of Registrable Securities materially
and adversely differently from any other holders of Registrable Securities, then
such amendment or waiver will require the consent of such holder or the holders
of a majority of the Registrable Securities of such group materially adversely
treated; provided further that an amendment or modification of this Agreement to
add a party hereto and to grant such party registration rights will be effective
against the Company and all holders of Registrable Securities if such
modification, amendment or waiver is approved in writing by the Company and the
holders of a majority of the Registrable Securities. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision in accordance with its terms.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or any portion thereof) as
such shall be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof).
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of
13
this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or the
effectiveness or validity of any provision in any other jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained
herein.
(g) Entire Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(h) Counterparts; Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement. This Agreement may be executed by
facsimile signature.
(i) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(j) Governing Law. The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights and obligations
of the Company and the Stockholders. All other issues and questions concerning
the construction, validity, enforcement and interpretation of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
(k) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications will
be sent to the Company at the address indicated below, to any party hereto at
the address indicated on Schedule A and Schedule B attached hereto and to any
subsequent holder of Registrable Securities at such address as indicated by the
Company's records, or at such address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending
party, and to the Company at the address indicated below:
If to the Company:
Globe Holdings, Inc.
456 Bedford Street
Fall River, MA 02720
Attention: President
14
with copies to:
Code, Hennessy & Simmons III, L.P.
c/o Code, Hennessy & Simmons LLC
10 South Wacker Drive, Suite 3175
Chicago, IL 60606
Attn: Peter M. Gotsch
and
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attn: Stephen L. Ritchie
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
15
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement on the day and year first above written.
COMPANY: GLOBE HOLDINGS, INC.
By: /s/ Lawrence R. Walsh
--------------------------
Lawrence R. Walsh
Its: Vice President, Finance and Administration
CHS GROUP: CODE, HENNESSY & SIMMONS III, L.P.
By: CHS Management III, L.P.
Its: General Partner
By: Code Hennessy & Simmons LLC
Its: General Partner
By: /s/ Peter M. Gotsch
---------------------------------
Peter M. Gotsch
Partner
/s/ Tracy A. Hogan
-------------------------------------
Tracy A. Hogan
/s/ Marcus J. George
-------------------------------------
Marcus J. George
/s/ Edward M. Lhee
-------------------------------------
Edward M. Lhee
/s/ Paige T. Walsh
-------------------------------------
Paige T. Walsh
16
[Continuation of Registration Agreement Signature Page]
BRINSON VENTURE CAPITAL FUND III, L.P.
By: Brinson Partners, Inc.
Its: General Partner
By: /s/ David S. Timson
----------------------------------------------
Name: David S. Timson
--------------------------------------------
Title: Executive Director, Brinson Partners, Inc.
-------------------------------------------
BRINSON TRUST COMPANY AS TRUSTEE FOR THE
BRINSON MAP VENTURE CAPITAL FUND III TRUST
By: /s/ David S. Timson
----------------------------------------------
Name: Davis S. Timson
--------------------------------------------
Title: Trust Officer
-------------------------------------------
VIRGINIA RETIREMENT SYSTEM
By: Brinson Partners, Inc., As Agent
For Virginia Retirement System
By: /s/ David S. Timson
----------------------------------------------
Name: David S. Timson
--------------------------------------------
Title: Executive Director, Brinson Partners, Inc.
-------------------------------------------
BANKAMERICA INVESTMENT CORPORATION
By: /s/ Jeffrey M. Mann
----------------------------------------------
Name: Jeffrey M. Mann
--------------------------------------------
Title: Managing Director
-------------------------------------------
MIG PARTNERS VII
By: /s/ Jason A. Mehring
----------------------------------------------
Name: Jason A. Mehring
--------------------------------------------
Title: General Partner
-------------------------------------------
17
[Continuation of Registration Agreement Signature Page]
OTHER STOCKHOLDERS:
/s/ Thomas A. Rodgers, III
-------------------------------
Thomas A. Rodgers, III
/s/ Americo Reis
-------------------------------
Americo Reis
/s/ Lawrence R. Walsh
-------------------------------
Lawrence Walsh
/s/ Robert L. Bailey
-------------------------------
Robert L. Bailey
Thomas A. Rodgers, Jr. Grantor
Retained Annuity Trust
By:/s/ Thomas A. Rodgers, Jr.
-----------------------------------
Thomas A. Rodgers, Jr., Trustee
/s/ Thomas A. Rodgers, III, Trustee
-----------------------------------
Thomas A. Rodgers, III, Trustee
/s/ Myron Wilner, Trustee
-----------------------------------
Myron Wilner, Trustee
18
SCHEDULE A
(CHS GROUP)
Code, Hennessy & Simmons III, L.P.
c/o Code, Hennessy & Simmons LLC
10 South Wacker Drive, Suite 3175
Chicago, IL 60606
Attn: Peter M. Gotsch
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attn: Stephen L. Ritchie
Tracy A. Hogan
c/o Code, Hennessy & Simmons III, L.P.
10 South Wacker Drive
Suite 3175
Chicago, IL 60606
Marcus J. George
c/o Code, Hennessy & Simmons III, L.P.
10 South Wacker Drive
Suite 3175
Chicago, IL 60606
Edward M. Lhee,
c/o Code, Hennessy & Simmons III, L.P.
10 South Wacker Drive
Suite 3175
Chicago, IL 60606
Paige T. Walsh
c/o Code, Hennessy & Simmons III, L.P.
10 South Wacker Drive
Suite 3175
Chicago, IL 60606
19
Brinson Venture Capital Fund III, L.P.
c/o Brinson Partners, Inc.
209 South LaSalle Street
Chicago, IL 60604-1295
Brinson Trust Company as Trustee for
Brinson Map Venture Capital Fund III Trust
c/o Brinson Partners, Inc.
209 South LaSalle Street
Chicago, IL 60604-1295
Virginia Retirement System
c/o Brinson Partners, Inc.
209 South LaSalle Street
Chicago, IL 60604-1295
BankAmerica Investment Corporation
231 South LaSalle Street, 12/th/ Floor
Chicago, IL 60697
MIG Partners VII
231 South LaSalle Street, 12/th/ Floor
Chicago, IL 60697
20
SCHEDULE B
----------
(OTHER STOCKHOLDERS)
Thomas A. Rodgers, Jr.
Grantor Retained Annuity Trust
19 Defenders Row
Goat Island
Newport, RI 02840
Thomas A. Rodgers, III
1027 Seapowet Avenue
Tiverton, Ri 02878
Americo Reis
1225 New Boston Road
Fall River, MA 02720
Lawrence Walsh
322 North Lane
Bristol, RI 02809
Robert L. Bailey
44 Anthony Street
South Dartmouth, MA 02748