Exhibit (4e)
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REGISTRATION RIGHTS AGREEMENT
by and among
RUSSELL CORPORATION,
and
BENJAMIN RUSSELL, BAUMGARDNER FAMILY PARTNERSHIP, LTD.,
GWALTNEY INVESTMENT, LTD., GWALTNEY-BAIRD INVESTMENTS, LTD.,
GWALTNEY FAMILY FOUNDATION, INC., CALISON FOUNDATION AND
BAUMGARDNER FAMILY CHARITABLE REMAINDER TRUST
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Dated as of January 31, 2005
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TABLE OF CONTENTS
1. Certain Definitions...................................................... 1
2. Registration of Common Stock............................................. 3
3. Holdback Agreements...................................................... 5
4. Piggyback Registration................................................... 6
5. Registration Procedures.................................................. 8
6. Registration Expenses.................................................... 11
7. Indemnification.......................................................... 12
8. Participation in Underwritten Registrations.............................. 14
9. Rule 144................................................................. 14
10. Standstill............................................................... 14
11. Voting................................................................... 15
12. Waiver of Dissenter's Rights............................................. 16
13. Miscellaneous............................................................ 16
REGISTRATION RIGHTS AGREEMENT dated as of January 31, 2005 among
Russell Corporation, an Alabama corporation (the "Company"), and Benjamin
Russell, an individual residing in Alabama, Calison Foundation, an Alabama trust
(the "Foundation"), Baumgardner Family Charitable Remainder Trust, an Alabama
trust (the "Baumgardner Trust), Baumgardner Family Partnership, Ltd., an Alabama
limited partnership, Gwaltney Investment, Ltd., an Alabama limited partnership,
Gwaltney-Baird Investments, Ltd., an Alabama limited partnership, and Gwaltney
Family Foundation, Inc., an Alabama corporation (each a "Stockholder" and
collectively, the "Stockholders"). Except for the Foundation and the Baumgardner
Trust, each of the Stockholders was a remainder beneficiary of the trust (the
"Trust") that was created under the will of Benjamin C. Russell (the "Russell
Will"). Under the terms of the Russell Will, as a result of the death of the
sole life income beneficiary of the Trust, the Trust is being terminated, and
the corpus of the Trust will be distributed upon receipt of all necessary
approvals.
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person which directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlled by" and "under common control with") as used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Common Stock" means common stock, par value $.01 per share, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof) or any other entity.
"Prospectus" means the prospectus or prospectuses 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
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Stock" means the 3,021,852 shares of Common Stock
beneficially owned by the Stockholders on the date of this Agreement; provided,
however, that such shares shall cease to be Registrable Common Stock when (i) a
registration statement registering such shares of Registrable Common Stock under
the Securities Act has been declared or becomes effective and such shares of
Registrable Common Stock have been sold or otherwise transferred pursuant to
such effective registration statement; (ii) such shares of Registrable Common
Stock are sold pursuant to Rule 144 under circumstances in which any legend
borne by such shares of Registrable Common Stock relating to restrictions on the
transferability thereof, under the Securities Act or otherwise, is removed by
the Company, or such shares of Registrable Common Stock are eligible to be sold
pursuant to paragraph (k) of Rule 144; or (iii) such shares of Registrable
Common Stock shall cease to be outstanding. For the avoidance of doubt,
Registrable Common Stock shall include the shares of common stock of Russell
Delaware into which the Common Stock owned by the Stockholders is convertible
immediately following the Reincorporation.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
"Reincorporation" means the proposed reincorporation of the Company
from Alabama to Delaware by merging the Company into a wholly owned subsidiary
incorporated in Delaware (Russell Delaware), as more fully set forth in the
Company's Definitive Proxy Statement filed with the SEC on March 17, 2004.
"Russell Delaware" means a wholly owned subsidiary of the Company
incorporated in Delaware which has been organized in order to consummate the
Reincorporation.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters for
reoffering to the public.
2. REGISTRATION OF COMMON STOCK.
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(a) Right to Request Registration. Subject to Section 2(b) and 2(d)
below, at any time after the date hereof, any Stockholder or Stockholders who
hold at least two million (2,000,000) shares of Registrable Common Stock, or all
of the Registrable Common Stock if a lesser number is then held by Stockholders
("Minimum Amount"), may request registration under the Securities Act of not
less than the Minimum Amount ("Demand Registration").
Within ten (10) days after receipt of any such request for a Demand
Registration, the Company shall give written notice of such request to all other
Stockholders that hold shares of Registrable Common Stock and shall, subject to
the provisions of Section 2(c) hereof, include in such registration all such
Registrable Common Stock with respect to which the Company has received written
requests for inclusion therein within 15 days after the date of the Company's
notice.
(b) Number of Demand Registrations.
Subject to Sections 2(g) and 6(c) below, the Stockholders shall be
entitled to request an aggregate of two (2) Demand Registrations; provided that,
subject to Section 2(g) below, the first Demand Registration must be requested
on or prior to the second anniversary of the date of this Agreement, and the
second Demand Registration must be requested within eighteen (18) months of the
initial effective date of the Registration Statement in connection with the
first Demand Registration or the date of the prospectus relating to an
underwritten takedown pursuant to Section 4(d); and further provided that if the
amount of time that the Company is required to maintain the effectiveness of a
Registration Statement is extended pursuant to Section 2(d), 3(b) or 5(k) herein
(the "Extension Period"), such eighteen (18) month period shall be extended by
the Extension Period. If the Stockholders fail to request the first Demand
Registration or an underwritten takedown pursuant to Section 4(d) on or prior to
the second anniversary of the date of this Agreement, the Stockholders will be
deemed to forfeit the Second Demand Registration and the Piggyback Registration
rights set forth in Section 4 herein.
(c) Priority on Demand Registrations. If the Demand Registration is an
underwritten offering and the managing underwriters advise the Company or the
demanding Stockholders in writing that in their opinion the number of shares of
Registrable Common Stock proposed to be included in any such registration
exceeds the number of securities which can be sold in such offering and/or the
number of shares of Registrable Common Stock proposed to be included in any such
registration would adversely affect the price per share of the Common Stock to
be sold in such offering, the Company shall include in such registration only
the number of shares of Registrable Common Stock which in the opinion of such
managing underwriters can be sold and/or the number of shares of Registrable
Common Stock that would not adversely affect the price per share of the Common
Stock. If the number of shares which can be sold is less than the number of
shares of Registrable Common Stock for which registration has been requested,
the amount of Registrable Common Stock to be so sold shall be allocated first,
pro rata to the shares of Registrable Common Stock requested to be registered by
the Stockholders (whether initially or after the Company provides notice to the
Stockholders pursuant to Section 2(a)) and then pro rata among the other holders
of Common Stock
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entitled and desiring to participate in such registration. If the number of
shares which can be sold exceeds the number of shares of Registrable Common
Stock proposed to be sold, such excess shall be allocated among the other
holders of securities (who are not Stockholders), if any, entitled and desiring
to participate in such registration, as the Company shall determine.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect more than one (1) Demand Registration in any twelve (12)
month period. The Company may postpone for up to sixty (60) days the filing or
the effectiveness of a Registration Statement or suspend the effectiveness of a
Registration Statement for a period up to sixty (60) days if, based on the good
faith judgment of the Company's board of directors or a committee thereof, such
postponement or suspension is necessary in order to avoid premature disclosure
of a matter that the board has determined would not be in the best interest of
the Company to be disclosed at such time. The Company shall provide written
notice to the Stockholders of (x) any postponement of the filing or suspension
of the effectiveness of a Registration Statement pursuant to this Section 2(d),
(y) the Company's decision to file or seek effectiveness of such Registration
Statement following such postponement or suspension, and (z) the effectiveness
of such Registration Statement. In the event of any suspension of a Registration
Statement, the period that the Company shall be required to keep such
Registration Statement effective shall be extended by the period of the
suspension, and (if the suspended Registration Statement is not the second
Demand Registration permitted under this Agreement) the period in which the
Stockholders may request a second Demand Registration pursuant to Section 2(b)
hereof shall automatically be extended by the period of the suspension.
(e) Prepaid Variable Share Forward Contracts. Up to one million
(1,000,000) shares of Registrable Common Stock in one Demand Registration may be
the subject of one or more prepaid variable share forward purchase contracts
(the "Forward Shares"). The Stockholders agree not to repurchase or otherwise
acquire more than 23% of any Forward Shares.
(f) Selection of Underwriters. If any shares of Registrable Common
Stock covered by a Demand Registration are to be sold in an underwritten
offering, the Company shall have the right to select the managing underwriter(s)
to administer the offering, subject to the approval of Stockholders that are the
beneficial owner of a majority of the shares of Registrable Common Stock to be
included in such underwritten offering, which approval will not be unreasonably
withheld or delayed.
(g) Effective Period of Demand Registrations. After a Registration
Statement filed pursuant to Section 2(a) of this Agreement has become effective,
the Company shall use its reasonable best efforts to keep such Registration
Statement effective for a period equal to one year from the initial date on
which the SEC declares such Registration Statement effective (subject to any
extension pursuant to Sections 2(d), 3(b) or 5(k) herein, or if such
Registration Statement is not effective during any period within such one year
period, such one year period shall be extended by the number of days that the
Registration Statement is not effective), or such shorter period which shall
terminate
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when all of the shares of Registrable Common Stock covered by such Registration
Statement have been sold pursuant to such Registration Statement or Rule 144
(the "Effectiveness Period"). If the Company shall withdraw any Demand
Registration prior to the expiration of the Effectiveness Period (a "Withdrawn
Registration Statement"), Stockholders that continue to hold Registrable Common
Stock, which shares were covered by the Withdrawn Registration Statement, shall
be entitled to an additional Demand Registration and the Company shall use
reasonable best efforts to keep such additional Demand Registration effective
for (x) the longer of (A) the remainder of the Effectiveness Period of the
Withdrawn Registration Statement or (B) three months, or (y) if earlier, until
the date on which all of the Registrable Common Stock covered by such Demand
Registration has been sold. If the Withdrawn Demand Registration was the first
Demand Registration under this Agreement, then the period in which the
Stockholders may request (i) a first Demand Registration (in replacement of such
Withdrawn Demand Registration) shall be extended by the number of days elapsed
between the date that the Withdrawn Registration Statement was requested by the
Stockholders and the date that the Withdrawn Registration Statement was declared
effective, and (ii) a second Demand Registration under this Agreement shall run
from the date of effectiveness of the replacement Demand Registration. If the
Withdrawn Registration Statement was the second Demand Registration under this
Agreement, then a request for an additional Demand Registration in replacement
of such Withdrawn Registration Statement must be made no later than the later of
(x) eighteen (18) months from the initial effective date of the Withdrawn
Registration Statement, or (y) six (6) months from the withdrawal of the
Withdrawn Registration Statement. The Company shall reimburse the Stockholders
for all reasonable legal and other advisory fees, not to exceed $30,000,
incurred by the Stockholders in connection with the Withdrawn Registration
Statement, and any such reimbursable costs shall be in addition to the amount of
the Reimbursement payable by the Company pursuant to Section 6(c) hereof. Any
additional Demand Registration pursuant to this paragraph otherwise shall be
subject to all of the provisions of this Agreement.
3. HOLDBACK AGREEMENTS.
(a) In the case of an underwritten offering by the Stockholders (which
includes any underwritten takedown off of a shelf registration statement
otherwise permitted by this Agreement), the Company agrees not to effect any
public sale or distribution of any of its equity securities (other than any sale
or distribution in connection with any merger, amalgamation, reorganization or
consolidation by the Company or any Affiliate of the Company, or the acquisition
by the Company or an Affiliate of the Company of shares or assets from any other
Person, or in connection with any employee stock ownership or other benefit
plan) during the ninety (90) day period (or such longer period that the managing
underwriters reasonably request) beginning on the initial effective date of the
Registration Statement relating to a Demand Registration, or the date of the
Prospectus relating to a Demand Registration that is a shelf takedown, as
applicable, unless the underwriters managing the offering agree to such sale or
distribution (the "Lock-up Period"). Notwithstanding the foregoing, if the
effectiveness of a Registration Statement relating to a Demand Registration has
been suspended during the term of the Lock-up Period, the Lock-up Period shall
be extended, for the number of
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days that the Registration Statement is not effective, subject to the right of
the underwriters managing the offering to permit sales, distributions or an
early release date.
(b) In the case of an underwritten offering by the Company (which
includes any underwritten takedown off of a shelf registration statement), each
Stockholder agrees not to sell or otherwise transfer or dispose of any shares of
Registrable Common Stock (or other securities) of the Company held by them
during the ninety (90) day period (or such longer period that the managing
underwriters reasonably request) beginning on the initial effective date of a
registration statement of the Company filed under the Securities Act, or the
date of the Prospectus (not including a preliminary Prospectus) relating to a
shelf takedown, as applicable, unless the underwriters managing the offering
agree to such sale or distribution (a "Stockholder Lock-up"). Such agreement
shall be in writing in form satisfactory to the Company and the managing
underwriters. The Company may impose stop-transfer instructions with respect to
the shares of Registrable Common Stock (or other securities) subject to the
foregoing restriction until the end of the Stockholder Lock-up. If a Stockholder
is required to enter into a Stockholder Lock-up at a time when shares of
Registrable Common Stock are included in an effective Registration Statement
relating to a Demand Registration, then the period that the Company shall be
required to keep such Registration Statement effective shall be extended by the
period of the Stockholder Lock-up.
4. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any offer or sale of Common
Stock under the Securities Act, whether or not for sale for its own account or
for the benefit of other security holders of the Company, on any registration
form (other than Form S-4 or S-8 or other successor forms or, except as provided
in Section 4(d) below, an omnibus shelf registration statement on Form S-3)
which permits the inclusion of shares of Registrable Common Stock, the Company
will promptly give each Stockholder that holds shares of Registrable Common
Stock written notice of its intention (the "Piggyback Notice"), which Piggyback
Notice shall specify the aggregate number of shares of Common Stock to be
registered, the intended method of disposition thereof and the Stockholder's
rights under this Section 4. Upon the written request of any Stockholder made
within 10 days of the date of delivery of the Piggyback Notice, the Company will
use its reasonable best efforts to effect the registration under the Securities
Act of the offer and sale of all shares of Registrable Common Stock which the
Company has been so requested to register by the Stockholders (the "Piggyback
Registration"); provided, however, that (i) if, any time after giving the
Piggyback Notice and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to effect such registration, the Company shall give written notice of
such determination to each Stockholder that requested inclusion in such
Piggyback Registration and, thereupon, shall be relieved of its obligation to
register any offer and sale of shares of Registrable Common Stock in connection
with such registration; and (ii) any Stockholder requesting to be included in
such registration may elect, in writing at least 10 days prior to the effective
date of the registration statement filed in connection with such registration,
not to register the offer and sale of such Stockholder's Registrable Common
Stock in connection with such registration. The
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election by any of the Stockholders to effect a Piggyback Registration (other
than in connection with an omnibus shelf Registration Statement as set forth in
Section 4(d)) shall not count against the maximum number of Demand Registrations
permissible under this Agreement as set forth in Section 2(b).
(b) If the Piggyback Registration relates to an underwritten public
offering, the Company shall so advise the Stockholders as part of the Piggyback
Notice given pursuant to Section 4(a). In such event, the right of any
Stockholder to participate in such registration shall be conditioned upon such
Stockholder's participation in such underwriting in accordance with the terms
and conditions thereof. The Company shall have the right to select the managing
underwriter(s) for any underwritten Piggyback Registration. All Stockholders
proposing to distribute their shares of Registrable Common Stock through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form.
(c) If such proposed Piggyback Registration is an underwritten offering
and the managing underwriters for such offering advise the Company that the
securities requested to be included therein exceeds the amount of securities
that can be sold in such offering (the "Cut-back Notice"), any securities to be
sold by the Company or other holders of the Company's securities initiating such
offering or otherwise contractually entitled to be included in such offering
prior to the Stockholders shall have priority over any shares of Registrable
Common Stock, and the number of shares to be included by a Stockholder and other
holders of the Company's securities that did not initiate the offering and not
having priority over the Stockholders in such registration shall be reduced pro
rata. The Company shall provide the Stockholders that have requested to be
included in such offering with a copy of any written Cut-back Notice.
(d) A Stockholder or Stockholders may, upon complying with the
provisions of Sections 2(a) and 4(a), include shares of Registrable Common Stock
in an omnibus shelf Registration Statement on Form S-3, but only in order to
effect up to two (2) offerings of Registrable Common Stock in underwritten
takedown(s) from such Registration Statement. Any such underwritten takedown
shall count against the maximum number of Demand Registrations permissible under
this Agreement as set forth in Section 2(b). Except as provided in this Section
4(d), the Stockholders shall have no Piggyback Registration rights under this
Agreement with respect to the Company's registration or proposed registration of
the offer or sale of Common Stock through an omnibus shelf registration on Form
S-3. For the avoidance of doubt: (i) one or more Stockholders may resell their
Registrable Securities pursuant to an omnibus shelf registration statement only
if done so pursuant to an underwritten takedown by such Stockholder(s) from such
shelf registration, and not in open market sales from time to time; and (ii) no
Stockholder shall have the right to piggyback onto any underwritten takedown by
the Company from an omnibus shelf registration statement.
5. REGISTRATION PROCEDURES.
In connection with any Registration Statement, the following provisions
shall apply (unless otherwise noted that a provision solely applies to a Demand
Registration):
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(a) solely in the case of a Demand Registration, prepare and file with
the SEC as soon as reasonably practicable, but in no event later than 90 days of
the Company's receipt of a request of a Demand Registration, one or more
Registration Statements with respect to such shares of Registrable Common Stock
and use its reasonable best efforts to cause such Registration Statement to
become effective as soon as reasonably practicable thereafter;
(b) solely in the case of a Demand Registration, prepare and file with
the SEC 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 set forth in Section 2(g) or such
shorter period as is necessary to complete the distribution of the securities
covered by such Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement;
(c) as soon as reasonably practicable but in no event later than three
(3) business days before the applicable filing date, furnish to Stockholders
named in the Registration Statement (if such Stockholders continue to hold
shares of Registrable Common Stock), for their review and comment, copies of the
proposed Registration Statement and the Prospectus included therein and proposed
amendments and supplements thereto (including post-effective amendments, but
excluding any documents incorporated by reference therein);
(d) furnish to each Stockholder named in the Registration Statement,
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 shares of
Registrable Common Stock owned by such Stockholder;
(e) use its reasonable best efforts to register or qualify such
Registrable Common Stock under such other securities or blue sky laws of such
jurisdictions as any Stockholder named in the Registration Statement reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Stockholder to consummate the disposition
in such jurisdictions of the Registrable Common Stock owned by such Stockholder
(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 subparagraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(f) notify each Stockholder named in the Registration Statement (if
such Stockholder continues to hold shares of Registrable Common Stock included
in such Registration Statement), at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act, of the occurrence of any
event, of which the Company
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is aware, 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, and, at the request of
any such Stockholder, the Company shall prepare a supplement or amendment to
such Prospectus so that, as thereafter delivered to the purchasers of such
Registrable Common Stock, such Prospectus shall not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(g) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form) and make
members of senior management of the Company available to participate in, and
cause them to cooperate with the underwriters in connection with, "road-show"
and other customary marketing activities and cause to be delivered to the
underwriters and the sellers, if any, opinions of counsel to the Company (which
may be in-house or external counsel), in customary form, covering such matters
as are customarily covered by opinions for an underwritten public offering
addressed to the underwriters and the sellers;
(h) in the case of an underwritten offering, make available for
inspection by any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such underwriter, all pertinent financial and other records, pertinent
corporate documents of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such, underwriter, attorney, accountant or agent in connection
with such Registration Statement;
(i) use its reasonable best efforts to cause all such Registrable
Common Stock to be listed on each securities exchange on which the Common Stock
is then listed;
(j) in the case of an underwritten offering, if requested by the
managing underwriters of such offering, cause to be delivered, immediately prior
to the effectiveness of the Registration Statement (and at the time of delivery
of any Registrable Common Stock sold pursuant thereto), letters from the
Company's independent certified public accountants addressed to each underwriter
stating that such accountants are independent public accountants within the
meaning of the Securities Act and the applicable rules and regulations adopted
by the SEC thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by letters of the
independent certified public accountants delivered in connection with secondary
underwritten public offerings;
(k) notify as soon as reasonably practicable, but in no event later
than three (3) business days, each Stockholder named in the Registration
Statement (if such Stockholder continues to hold shares of Registrable Common
Stock included in such Registration Statement), and the underwriter or
underwriters, if any:
(i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has been filed
and,
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with respect to the Registration Statement or any post-effective
amendment, when the same has become effective;
(ii) of any written request by the SEC for amendments or
supplements to the Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by the SEC of
any stop order suspending the effectiveness of the Registration
Statement; and
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any shares of
Registrable Common Stock for sale under the applicable securities or
blue sky laws of any jurisdiction.
The Company may require each seller of Registrable Common Stock as to
which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing and each such seller
shall promptly comply with any such request.
Each seller of Registrable Common Stock agrees by having its stock
treated as Registrable Common Stock hereunder that, upon notice 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 material
fact necessary to make the statements therein not misleading (a "Suspension
Notice"), such seller will forthwith discontinue disposition of Registrable
Common Stock under the Registration Statement until such seller has received
written notice from the Company that the use of the Prospectus may be resumed (a
"Resumption Notice") and is furnished with a supplemented or amended Prospectus
as contemplated by Section 5(f) hereof, and, if so directed by the Company, such
seller will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such seller's possession, of the Prospectus
covering such Registrable Common Stock current at the time of receipt of the
Suspension Notice; provided, however, that the Company agrees to use its
reasonable best efforts to provide each seller of Registrable Common Stock with
a Resumption Notice, as well as a supplemented or amended Prospectus
contemplated by Section 5(f) hereof, within forty-five (45) days of the date of
delivery of a Suspension Notice. If the Company shall give any notice to suspend
the disposition of Registrable Common Stock pursuant to a Prospectus, the
Company shall extend the period of time during which the Company is required to
maintain the Registration Statement effective pursuant to Section 2(g) of this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date such seller either is
advised by the Company that the use of the Prospectus may be resumed or receives
the copies of the supplemented or amended Prospectus contemplated by Section
5(f).
6. REGISTRATION EXPENSES.
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(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, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses"), shall
be paid by the Company and shall not be charged to or payable by the
Stockholders. In addition, the Company shall 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 they are to be listed. Registration Expenses shall not include
any underwriting discounts or commissions attributable to the sale of
Registrable Common Stock or fees and expenses of counsel representing the
Stockholders, except as set forth below.
(b) The obligation of the Company to bear the expenses described in
Section 5(a) shall apply irrespective of whether a registration, once properly
demanded, if applicable, becomes effective, is withdrawn or suspended, is
converted to another form of registration and irrespective of when any of the
foregoing shall occur.
(c) The Company will reimburse the Stockholders for up to $875,000 in
the aggregate of the Stockholders' expenses actually incurred and documented
(which expenses may include, without limitation, underwriting discounts and
commissions) in connection with the Demand and Piggyback Registrations (the
"Reimbursement"). Up to $656,250 of the Reimbursement will be paid in connection
with the first Demand or Piggyback Registration; provided, however, that if the
Stockholders (i) sell at least 90% of the Registrable Common Stock beneficially
owned on the date hereof in the first Demand or Piggyback Registration, and (ii)
waive their second Demand Registration and all Piggyback Registrations, the
Stockholders will receive up to the full Reimbursement in connection with the
first Demand or Piggyback Registration. The Reimbursement shall be paid by the
Company within sixty (60) days of receipt of documentation to the Company
evidencing the Stockholders' expenses. The Stockholders agree to coordinate with
each other and submit one set of documentation representing the request for
Reimbursement by all of the Stockholders. Any expenses incurred by the
Stockholders that are reimbursable pursuant to Section 2(g) hereof shall be in
addition to the amount of the Reimbursement provided for in this section.
7. INDEMNIFICATION.
(a) The Company shall indemnify, to the fullest extent permitted by
law, each Stockholder, its officers, directors and Affiliates and each Person
who controls such Stockholder (within the meaning of the Securities Act) against
all losses, claims, damages, liabilities and expenses arising out of or based
upon any untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission
11
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading or any violation or
alleged violation by the Company of the Securities Act, the Exchange Act or
applicable "blue sky" laws, except insofar as the same are made in reliance and
in conformity with information relating to such Stockholder furnished in writing
to the Company by such Stockholder expressly for use therein or caused by such
Stockholder's failure to deliver to such Stockholder's immediate purchaser a
copy of the Registration Statement or Prospectus or any amendments or
supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Stockholder with copies of the
same. In connection with an underwritten offering, the Company shall 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 Stockholders.
(b) In connection with any Registration Statement in which a
Stockholder is participating, each such Stockholder shall 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,
shall indemnify, to the fullest extent permitted by law, the Company, its
officers, directors Affiliates, and each Person who controls the Company (within
the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon 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 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 the same are made in reliance and in conformity with
information relating to such Stockholder furnished to the Company by such
Stockholder expressly for use therein or caused by such Stockholder's failure to
deliver to such Stockholder's immediate purchaser a copy of the Registration
Statement or Prospectus or any amendments or supplements thereto (if the same
was required by applicable law to be so delivered) after the Company has
furnished such Stockholder copies of the same; provided, however, that the
obligation to indemnify shall be several, not joint and several, among such
Stockholders and the liability of each such Stockholder shall be in proportion
to and limited to the net amount received by such Stockholder from the sale of
Registrable Common Stock pursuant to such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification 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. Regardless of whether or not such defense
is assumed by the indemnifying party, the indemnifying party shall 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). In
addition, any settlement entered into by an indemnifying party must include a
release of all claims against the indemnified party. An indemnifying party who
is not entitled to, or elects not to, assume
12
the defense of a claim shall 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 there may be one or more legal or equitable defenses available to such
indemnified party which are in addition to or may conflict with those available
to another indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its obligations
hereunder.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section
7 is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
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 by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of any selling
Stockholder be greater in amount than the amount of the net proceeds received by
such Stockholder upon such sale or the amount for which such indemnifying party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Sections 7(a) or 7(b) hereof had been
available in such circumstances.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder which is
underwritten unless such Person (x) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (y) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
9. RULE 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the
13
SEC thereunder, and it will, if requested by any Stockholder, make available
adequate current public information with respect to the Company meeting the
current public information requirements of Rule 144(c) under the Securities Act,
to the extent required to enable such Stockholder to sell Registrable Common
Stock without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC.
10. STANDSTILL.
The Stockholders agree that during the period commencing on the date
hereof and ending forty-two (42) months after the date of this Agreement, the
Stockholders will not, nor will it permit any of its Affiliates to, directly or
indirectly without the prior written consent of the Company:
(a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise any securities of the Company (other than
any Forward Shares that are acquired upon settlement of a prepaid variable
forward purchase contract, as provided for in Section 2(e) herein);
(b) "solicit" proxies or consents with respect to the Common Stock
under any circumstances or become a "participant" in any "contested
solicitation" relating to the election of directors the Company, as such terms
are defined in Regulation 14A under the Exchange Act;
(c) deposit any shares of Common Stock in a voting trust or subject
them to a voting agreement or other agreement of similar effect, other than
pursuant to this Agreement;
(d) initiate, propose or otherwise solicit holders of shares of Common
Stock for the approval of one or more proposals at any time, or induce or
attempt to induce any other person to initiate any proposal to be voted on by
such holders;
(e) form, join or in any way participate in a group within the meaning
of Section 13(d)(3) of the Exchange Act with respect to the Company or the
Company's Common Stock (except as may occur as a result of the Stockholders
entering into this Agreement and/or acting in accordance with Section 11
hereof);
(f) arrange, or participate in the arranging of, financing for the
purchase of shares of Common Stock by any individual, partnership, or other
entity;
(g) propose or disclose any intent to propose or make any public
statement regarding any acquisition, business combination or similar transaction
with respect to the Company; or
(h) take any action to encourage or assist any other person to do any
of the foregoing.
14
11. VOTING.
Notwithstanding anything to the contrary contained in this Agreement,
each Stockholder agrees that during the period commencing on the date hereof and
for so long as such Stockholder or any Affiliate thereof beneficially owns any
shares of Common Stock which is, on the date hereof, Registrable Common Stock,
at any annual, special or other meeting of the stockholders of the Company, and
at any adjournment or adjournments thereof, and in connection with any action of
the stockholders of the Company taken by written consent, such Stockholder:
(a) will appear in person or by proxy at each such meeting or otherwise
cause the shares of Registrable Common Stock beneficially owned by such
Stockholder, including any Forward Shares, to be counted as present at such
meeting for purposes of calculating a quorum; and
(b) will either, at the sole election of such Stockholder, (i) vote or
cause the shares of Registrable Common Stock to be voted in accordance with the
recommendations of management of the Company in connection with any action,
proposal, transaction or agreement being voted on by the stockholders of the
Company, or (ii) grant an irrevocable proxy to one or more persons designated by
the Company.
12. WAIVER OF DISSENTER'S RIGHTS.
(a) The Stockholders hereby waive any and all actions, claims and
rights, including, but not limited to dissenter's rights, that the Stockholders
may now or forever have against the Company or any of its Affiliates, in
connection with or arising out of the Reincorporation. The Stockholders hereby
acknowledge and agree that by entering into this Agreement, they have withdrawn
the notice of dissent dated April 21, 2004, a copy of which is attached hereto
as Exhibit A (the "Notice of Dissent"), asserting dissenter's rights in
connection with the Reincorporation, and the Stockholders and the Company hereby
acknowledge and agree that, if the Reincorporation is consummated, shares of
Registrable Common Stock will be converted into shares of common stock of
Russell Delaware pursuant to and in accordance with the terms of the
Reincorporation.
(b) As further inducement to the Company to enter into and be bound by
this Agreement, attached hereto as Exhibit B are waivers of dissenter's rights,
executed by each beneficiary of the Trust that is not a Stockholder, waiving
dissenter's rights in connection with the Reincorporation, and otherwise
covering all matters addressed in Section 12(a) above. The Stockholders
represent and warrant that the waivers of the Stockholders contained in Section
12(a) above, together with the waivers attached hereto as Exhibit B, constitute
all waivers necessary to extinguish fully the right of any person or entity to
dissent from the Reincorporation by virtue of or through the Notice of Dissent,
and no person shall after the date hereof have any right to appraisal of their
shares of Common Stock in connection with consummation of the Reincorporation.
13. MISCELLANEOUS.
15
(a) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar writing) and
shall be given,
If to the Company:
Russell Corporation
3330 Cumberland Boulevard, Suite 800,
Atlanta, Georgia 30339
Facsimile No.: (678) 742-8514
Attention: Floyd G. Hoffman
If to the Stockholders, at the addresses set forth on the
signature pages hereto.
in each case with copies, which shall not constitute notice to
the Company or the Stockholders, to:
Maynard, Cooper & Gale, P.C.
2400 AmSouth/Harbert Plaza
Birmingham, Alabama 35203-2618
Attention: Mark L. Drew
Facsimile No.: (205) 254-1999
and
Kaufman & Rothfeder
Aliant Center
2740 Zelda Road
Montgomery, Alabama 36106
Attention: Jo Karen Parr
Facsimile No.: (334) 244-1969
and
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Attention: Stacy J. Kanter
Facsimile No.: (212) 735-2000
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and the appropriate facsimile confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
16
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, including any
successor in interest to the Company, it being understood that subsequent
holders of the Registrable Common Stock are not intended third party
beneficiaries hereof.
(d) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of Delaware, without regard to principles
of conflicts of law.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the County of Fulton, State of Georgia, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9(a) shall be deemed
effective service of process on such party.
(f) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the transactions contemplated herein. No
provision of this Agreement or any other agreement contemplated hereby is
intended to confer on any Person other than the parties hereto any rights or
remedies.
17
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(k) Amendments. 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
without the prior written consent of the holders of a majority of the
Registrable Common Stock; provided, however, that without a Stockholder's
written consent no such amendment, modification, supplement or waiver shall
affect adversely such Stockholder's rights hereunder in a discriminatory manner
inconsistent with its adverse effects on rights of other Stockholders hereunder
(other than as reflected by the different number of shares held by such
Stockholder); provided, further, that the consent or agreement of the Company
shall be required with regard to any termination, amendment, modification or
supplement of, or waivers or consents to departures from, the terms hereof,
which affect the Company's obligations hereunder.
(l) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(m) Equitable Relief. The parties hereto agree that legal remedies may
be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
(n) Form S-3 Eligibility. The Company represents and warrants to the
Stockholders that it is eligible to file a registration statement on Form S-3.
The Company agrees to use its reasonable best efforts to maintain S-3
eligibility during the period that the Company may have an obligation to file a
Demand Registration pursuant to Section 2 of this Agreement.
(o) Enforceability.
(i) The Company represents and warrants to each
Stockholder that the execution, delivery and performance of
this Agreement, the consummation of the transactions
contemplated hereby
18
and the fulfillment of the terms hereof on the part of the
Company to be fulfilled have been duly authorized by all
necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company,
and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, liquidation, reorganization, moratorium or other
laws relating to or limited by creditors' rights generally or
by equitable principles.
(ii) Each Stockholder, severally and not jointly,
represents and warrants to the Company that the execution,
delivery and performance of this Agreement, the consummation
of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof on the part of the
Stockholder to be fulfilled have been duly authorized by all
necessary corporate, limited liability or partnership action,
as the case may be, on the part of the Stockholder. This
Agreement has been duly executed and delivered by the
Stockholder, and constitutes a valid and binding obligation of
the Stockholder enforceable against the Stockholder in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, liquidation,
reorganization, moratorium or other laws relating to or
limited by creditors' rights generally or by equitable
principles.
[Execution Page Follows]
19
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
RUSSELL CORPORATION
By: /s/ Floyd G. Hoffman
----------------------------------------------
Name: Floyd G. Hoffman - signed on March 15, 2005
Title: Senior Vice President
Address: Russell Corporation
3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
STOCKHOLDERS
BENJAMIN RUSSELL
By: /s/ Benjamin Russell
----------------------------------------------
Name: Benjamin Russell
Address: c/o Russell Lands, Inc.
2544 Willow Point Road
Alexander City, AL 35010
BAUMGARDNER FAMILY PARTNERSHIP, LTD.
By: Baumgardner Investment Company,
Ltd. - Its General Partner
By: RAB, L.L.C. - Its Manager
By: /s/ Thomas T. Lamberth
------------------------------------------
Name: Thomas T. Lamberth
Title: One of Its Managers
Address: c/o Russell Lands, Inc.
2544 Willow Point Road
Alexander City, AL 35010
By: /s/ Earl C. Baumgardner
------------------------------------------
Name: Earl C. Baumgardner
Title: One of Its Managers
Address: 1488 College Street
Alexander City, AL 35010
By: /s/ G. Russell Baumgardner
------------------------------------------
Name: G. Russell Baumgardner
Title: One of Its Managers
Address: 8507 Carillion Place
Montgomery, AL 36117
20
GWALTNEY INVESTMENT,
LTD.
By: /s/ George W. Gwaltney
----------------------------------------------
Name: George W. Gwaltney
Title: a General Partner
Address: 1615 Powers Ridge Place
Atlanta, GA 30327
GWALTNEY-BAIRD
INVESTMENTS, LTD.
By: /s/ Nancy R. Gwaltney
----------------------------------------------
Name: Nancy R. Gwaltney
Title: a General Partner
Address: 384 Ridgeway Drive
Alexander City, AL 35010
GWALTNEY FAMILY FOUNDATION, INC.
By: /s/ Nancy R. Gwaltney
---------------------------------------------
Name: Nancy R. Gwaltney
Title: President
Address: 384 Ridgeway Drive
Alexander City, AL 35010
CALISON FOUNDATION
By: /s/ Roberta A. Baumgardner
---------------------------------------------
Name: Roberta A. Baumgardner
Title: Trustee
Address: 178 Ridgeway Drive
Alexander City, AL 35010
BAUMGARDNER FAMILY
CHARITABLE REMAINDER TRUST
By: /s/ Roberta A. Baumgardner
---------------------------------------------
Name: Roberta A. Baumgardner
Title: Trustee
Address: 178 Ridgeway Drive
Alexander City, AL 35010
21
EXHIBIT A
NOTICE OF DISSENT DATED APRIL 21, 2004
(attached)
EXHIBIT B
WAIVERS OF DISSENTER'S RIGHTS
(attached)