EXHIBIT 10.44
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 17, 1997 ("Agreement"),
by and among EMPIRE OF CAROLINA, INC., a Delaware corporation (the "Company"),
and SMEDLEY INDUSTRIES, INC. LIQUIDATING TRUST (the "Investor").
RECITALS
A. Pursuant to that certain Agreement by and between the Company and
Investor dated as of June 17, 1997 (the "Buddy L Agreement"), the Investor,
among other things, agreed to release the Company from its obligations and
liabilities under certain agreements in return for certain cash and stock
payments as contemplated by that certain Securities Purchase Agreement
("Securities Purchase Agreement"), dated as of May 5, 1997 by and between HPA
Associates, LLC, EMP Associates LLC and the Company.
B. As a condition to the consummation of the transactions contemplated
by the Buddy L Agreement and the Securities Purchase Agreement, the parties
hereto (collectively, the "Parties" and each, individually, a "Party") have
entered into this Agreement to provide certain securities registration rights to
the Investor.
C. The provisions of this Agreement supersede and replace any and all
registration rights previously held by any Party with respect to securities of
the Company, including the registration rights contemplated by that certain
Registration Rights Agreement dated July 7, 1995 (the "Buddy L Registration
Rights Agreement") between the Company and Investor.
AGREEMENTS
In consideration of the foregoing recitals (which are hereby
incorporated into and shall be deemed a part of this Agreement), the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Definitions. For the purposes of this Agreement, the
following terms have the meanings indicated:
"Commission" shall mean the United States Securities and
Exchange Commission or any successor to the functions of such agency.
"Common Stock" shall mean the Company's Common Stock, $.10 par
value, and any Stock into which such Common Stock may hereafter be changed.
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"Company" shall mean Empire of Carolina, Inc., a Delaware
corporation, and all successor corporations thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any federal statute or statutes which shall be enacted to take
the place of such Act, together with all amendments and supplements thereto.
"Holders" shall mean the Persons who shall from time to time
own of record any Security. The term "Holder" shall mean any one of the Holders.
"Person" shall mean an individual, a corporation, a
partnership, a limited liability company, a trust, an unincorporated
organization or a governmental organization or any agency or political
subdivision thereof or other similar entity.
"Prospectus" shall mean any prospectus which is a part of a
Registration Statement, together with all amendments or supplements thereto.
"Registrable Securities" shall mean, at any time, the shares
of the then outstanding Common Stock issued to the Investor pursuant to the
Buddy L Agreement or any subsequent Holder of Registrable Securities having
rights hereunder pursuant to Section 10 hereof; provided, however, that
Registrable Securities shall not be deemed to include any shares after such
shares have been registered under the Securities Act and sold pursuant to such
registration or any shares sold without registration under the Securities Act in
compliance with Rule 144, or pursuant to any other exemption from registration
under the Securities Act to a Person who is free to resell such shares without
registration or restriction under the Securities Act; and provided, further,
that Registrable Securities shall not include any shares which are eligible to
be sold without registration under the Securities Act in compliance with
subsection (k) of Rule 144.
"Registration Statement" shall mean any registration statement
filed with the Commission in accordance with the Securities Act, together with
all amendments or supplements thereto.
"Securities" shall mean any debt or equity securities of the
Company, whether now or hereafter authorized, and any instrument convertible
into or exchangeable for Securities or a Security. The term "Security" shall
mean any one of the Securities.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any federal statute or statutes which shall be enacted to take the
place of such Act, together with all rules and regulations promulgated
thereunder.
2. Shelf Registration. Within 180 days from the Closing Date,
the Company shall cause to be filed a Registration Statement (a "Shelf
Registration") on Form S-3 or any other appropriate form under the Securities
Act for an offering to be made on a delayed or continuous basis pursuant to Rule
415 thereunder or any similar rule that may be adopted by
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the Commission and permitting the sale of Registrable Securities by the Holders
thereof (and shall register or qualify the shares to be sold in such offering
under such other securities or "blue sky" laws, if any, as would be required
pursuant to Section 5 below). Prior to the filing of the Shelf Registration or
any supplement or amendment thereto, the Company will furnish copies of the
Shelf Registration or such amendment to one counsel designated by Investor, and
will not file the Shelf Registration or such amendment without the prior consent
of such counsel, which consent shall not be unreasonably withheld. The Company
shall use its reasonable efforts to (1) cause the Shelf Registration to be
declared effective by the Commission as soon as practicable after its filing
with the Commission and (2) keep the Shelf Registration continuously effective,
subject to Sections 4 and 5 below. The Company shall, if necessary, supplement
or make amendments to the Shelf Registration, if required by the registration
form used by the Company for the Shelf Registration or by the instructions
applicable to such registration form or by the Securities Act or the rules or
regulations thereunder or as may reasonably be requested by Investor. The
Company shall pay all Registration Expenses (as defined below) incurred in
connection with the Shelf Registration.
3. Piggyback Registration. At any time prior to May 6, 2000
whenever the Company proposes to file a Registration Statement under the
Securities Act with respect to an underwritten public offering of Common Stock
by the Company for its own account or for the account of any other holder of
Common Stock, the Company shall give written notice (the "Offering Notice") of
such proposed filing at least 30 days before the anticipated filing date. Such
Offering Notice shall offer Holder the opportunity to register such number of
Common Stock as Investor may request in writing, which request for registration
(each, a "Piggyback Registration") must be received by the Company within 25
days after the Offering Notice is given. The Company shall use all reasonable
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit Holder requested to include such Registrable
Securities in such offering on the same terms and conditions as the Securities
of the Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of a proposed underwritten offering advise the
Company in writing that in its or their opinion the number of Registrable
Securities proposed to be sold in such offering exceeds the number of
Registrable Securities that can be sold in such offering without adversely
affecting the market for the Company's Securities or the price that may be
obtained in such offering, the Company will include in such registration the
number of Registrable Securities that in the opinion of such managing
underwriter or underwriters can be sold without adversely affecting the market
for the Company's common stock or the price to be received in such offering. In
such event, the number of Registrable Securities, if any, to be offered for the
account of Holder shall be reduced to the extent necessary to reduce the total
number of Registrable Securities to be included in such offering to the number
recommended by such managing underwriter or underwriters, provided that if any
other Person has rights to a Piggyback Registration with respect to the same
underwritten public offering, the right of the Holder to sell its securities
together with such other Persons holding Piggyback Rights shall be cut back
proportionately (in relation to the number of shares that each Person so
participating in the Piggyback Registration has requested to be included
compared to the number of all shares with respect to which inclusion has been
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properly requested). The Company shall pay all Registration Expenses (as defined
below) incurred in connection with any Piggyback Registration.
4. Termination of Registration Rights. The registration rights
provided hereunder shall continue so long as Registrable Securities remain
outstanding and shall then terminate.
5. Registration Procedures. Whenever Registrable Securities are
to be registered pursuant hereto, the Company shall use its best efforts to
effect the registration of Registrable Securities in accordance with the
intended method of disposition thereof as expeditiously as practicable and, in
connection with any such request, the Company shall as expeditiously as
possible:
(i) furnish to Holder such number of copies of the
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and such other documents as
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by Holder;
(ii) if required, use best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as Holder reasonably requests in writing and to do any and all
other acts and things that may be reasonably necessary or advisable to register
or qualify for sale in such jurisdictions the Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified, (ii) subject itself to taxation in any such jurisdiction, (iii)
consent to general service of process in any such jurisdiction or (iv) provide
any undertaking required by such other securities or "blue sky" laws or make any
change in its charter or by-laws that the Board of Directors of the Company
determines in good faith to be contrary to the best interest of the Company and
its stockholders;
(iii) use best efforts to cause the Registrable Securities
covered by such Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities;
(iv) notify Holder at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act 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 to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and prepare and file with the Commission 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 material fact required to be stated therein
or necessary to make the statements therein, in
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light of the circumstances under which they were made, not misleading, provided,
in the use of a Piggyback Registration, that prior to the filing of such
supplement or amendment, the Company will furnish copies thereof to the Holder
and any underwriters and counsel for Holder, and will not file such supplement
or amendment without the prior consent of such counsel, which consent shall not
be unreasonably withheld;
(v) enter into customary agreements (including an underwriting
agreement in customary form if the offering is an underwritten offering) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities;
(vi) make available for inspection by any seller of
Registrable Securities and any attorney, accountant or other agent retained by
Holder (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as are reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors, employees
and agents to supply all information reasonably requested by any such Inspector
in connection with such Registration Statement. Records that have not been filed
by the Company with the Commission shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is, in the reasonable judgment of any
Inspector, necessary to avoid or correct a misstatement or omission of a
material fact in the Registration Statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court or governmental
agency of competent jurisdiction or required (in the written opinion of counsel
to such Holder or underwriter, which counsel shall be reasonably acceptable to
the Company) pursuant to applicable state or federal law. Each seller of
Registrable Securities shall be required to agree, however, that it will, upon
learning that disclosure of such Records are sought by a court or governmental
agency, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(vii) if such sale is pursuant to an underwritten offering,
use reasonable efforts to obtain a "cold comfort" letter and updates thereof
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort" letters as the
managing underwriter or underwriters reasonably request;
(viii) provide, if such sale is pursuant to a firm commitment
underwriting, at the request of the Investor, a legal opinion of the Company's
independent counsel for purpose of such registration with respect to the
Registration Statement, each amendment and supplement thereto, the Prospectus
included therein (including any preliminary Prospectus) and such other documents
relating thereto in customary form and covering such matters of that type
customarily covered by legal opinions is such nature at the date thereof; and
(ix) otherwise use best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, as soon
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as reasonably practicable, an earnings statement covering a period of 12 months,
beginning within three months after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
Provided that the applicable listing requirements are satisfied, the
Company shall use reasonable best efforts to maintain the listing of the Common
Stock on the American Stock Exchange or, if such stock is delisted from the
American Stock Exchange, to provide for the listing of the Common Stock on the
Nasdaq National Market.
The Company may require Holder as to which any registration is being
effected to furnish to the Company such information regarding the distribution
of such securities and other matters as may be required by applicable federal
law to be included in the Registration Statement.
Upon receipt of any notice from the Company of the happening of any
event of the kind described in clause (iv) of this Section, Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
this clause (iv) and, if so directed by the Company, Holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company gives
any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (iv) to and including the date when
each seller of Registrable Securities covered by such Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated in clause (iv). Notwithstanding anything to the contrary set forth
above in this paragraph, the Company may not require Holder of Registrable
Securities to discontinue disposition of Registrable Securities for purposes of
effecting a public offering of any securities of the Company by any of its
securityholders (other than an offering made pursuant to a registration on Form
S-8). Notwithstanding the foregoing, if the Company furnishes to Holder a
certificate signed by the Chief Financial Officer of the Company stating that
(i) in the good faith judgment of the Board of Directors of the Company it would
be significantly disadvantageous to the Company and its stockholders for any
such Shelf Registration to be amended or supplemented and (ii) the need for such
an amendment or supplement is not caused by a proposed secondary public offering
of securities of the Company by any of its securityholders (other than an
offering made pursuant to a registration on Form S-8), the Company may defer
such amending or supplementing of such Shelf Registration for not more than 45
days and in such event Holder shall be required to discontinue disposition of
any Registrable Securities covered by such Shelf Registration during such
period. Notwithstanding the foregoing, in connection with any amendment or
supplement required to reflect a public offering of securities by the Company,
the Company shall file such amendment or supplement no later than the same day
that it files a Registration Statement
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relating to such offering and shall provide written notice of the filing of such
amendment or supplement to the Holder promptly following such filing.
6. Registration Expenses. The Company shall pay all expenses
incident to its performance of or compliance with this Agreement, regardless of
whether such registration becomes effective including, without limitation, (a)
all Commission, stock exchange or market and National Association of Securities
Dealers, Inc. registration and filing fees, (b) all fees and expenses incurred
in complying with securities or "blue sky" laws (including reasonable fees and
disbursements of counsel in connection with "blue sky" qualifications of the
Registrable Securities), (c) all printing, messenger and delivery expenses, (d)
all fees and disbursements of the Company's independent public accountants and
counsel, (e) all fees and expenses of any special experts retained by the
Company in connection with any Piggyback Registration pursuant to the terms of
this Agreement, and (f) the fees and disbursements of one counsel retained
collectively by the Holder for a registration; provided, however, that the
Company shall not pay the costs and expenses of any counsel, accountants or
other representatives retained by the Holder, individually or in the aggregate
(the "Registration Expenses").
7. Indemnification; Contribution.
(i) Indemnification by the Company. The Company shall
indemnify, to the fullest extent permitted by law, Holder, its officers,
directors and agents and each Person, if any, who controls Holder (within the
meaning of the Securities Act and the Exchange Act), against any and all losses,
claims, damages, liabilities and expenses caused by 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 or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or contained in any
information with respect to Holder furnished in writing to the Company by Holder
expressly for use therein, by Holder's failure to deliver a copy of the
Prospectus or any supplements thereto after the Company has furnished Holder
with a sufficient number of copies of the same or by the delivery of
Prospectuses by Holder after the Company notified Holder in writing to
discontinue delivery of Prospectuses or by any violation of any federal, state
or common law rule or regulation applicable to the Company and relating to
action required of, or inaction by the Company in connection with such
regulation. The Company also shall indemnify any underwriters of the Registrable
Securities, 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 Holder. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Person seeking indemnification and shall survive the transfer
of such securities by such Person seeking information.
(ii) Indemnification by Holder. In connection with any
Registration Statement in which Holder is participating, Holder shall furnish to
the Company in writing
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such information and affidavits with respect to Holder as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and agrees to indemnify, severally and not jointly, to the fullest
extent permitted by law, the Company, its officers, directors and agents and
each Person, if any, who controls the Company (within the meaning of the
Securities Act) against any and all losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact required to be
stated in any Registration Statement, Prospectus or preliminary Prospectus or
any amendment thereof or supplement thereto or necessary to make the statements
therein (in the case of a Prospectus, in light of the circumstances under which
they were made) not misleading, to the extent, but only to the extent, that such
untrue or alleged untrue statement or omission is contained in or improperly
omitted from, as the case may be, any information or affidavit with respect to
Holder so furnished in writing by Holder. Holder also shall indemnify any
underwriters of the Registrable Securities, 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 Company. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of any Person seeking indemnification and
shall survive the transfer of such securities by such Person seeking
information.
(iii) Conduct of Indemnification Proceedings. Any party that
proposes to assert the right to be indemnified hereunder shall, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim is to be made against an indemnifying party or parties hereunder,
notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have to
any indemnified party under the foregoing provisions unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
If the indemnifying party assumes the defense, the indemnifying party shall have
the right to settle such action without the consent of the indemnified party;
provided, however, that the indemnifying party shall be required to obtain such
consent (which consent shall not be unreasonably withheld) if the settlement
includes any admission of wrongdoing on the part of the indemnified party or any
decree or restriction on the indemnified party or its officers or directors;
provided, further, that no indemnifying party, in the defense of any such
action, shall, except with the consent of the indemnified party (which consent
shall not be unreasonably withheld), consent to entry
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of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such action
against the indemnified party. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(a) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (b) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (c) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (d) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time from all such indemnified party or
parties unless (x) the employment of more than one counsel has been authorized
in writing by the indemnifying party or parties, (y) an indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it that are different from or in addition to those
available to the other indemnified parties or (z) a conflict or potential
conflict exists (based on advice of counsel to an indemnified party) between
such indemnified party and the other indemnified parties, in each of which cases
the indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel or counsels. An indemnifying party shall not
be liable for any settlement of any action or claim effected without its written
consent (which consent shall not be unreasonably withheld).
(iv) Contribution. If the indemnification provided for herein
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, to the extent such indemnification is
unavailable, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party 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 and indemnified parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to
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include, subject to the limitations set forth in subparagraph (3) hereof, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The Company and the Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(iv) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or 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 such action or claim.
Notwithstanding the provisions of this Section 7(iv), no Holder shall be liable
for or required to contribute pursuant to this Section 7(iv) or otherwise
aggregate amounts exceeding the product of the public offering price, less
underwriting discounts, commissions and expenses, per Registrable Securities and
the number of Registrable Securities being sold by such Holder. 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.
If indemnification is available hereunder, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in
subparagraphs (i) and (ii) hereof without regard to the relative fault of said
indemnifying parties or indemnified party.
8. Rule 144. The Company hereby covenants that, after the Company
shall have filed a registration statement pursuant to the requirements of
Section 12 of the Exchange Act or a registration statement on Form S-4, the
Company will file in a timely manner all reports required to be filed by it
under the Securities Act and the Exchange Act (or, if the Company is not
required to file such reports, it will, upon the request of the Holder, make
publicly available other information so long as necessary to permit sales by the
Holder under Rule 144 under the Securities Act), and it will take such further
action as the Holder may reasonably request, all to the extent required from
time to time to enable the Holder to sell Registrable Securities 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 Commission. Upon the request of the Holder, the Company will deliver to such
Holder a written statement as to whether it has compiled with such requirements.
9. Assignability of Registration Rights. The registration rights
set forth in this Agreement shall accrue to each subsequent Holder of
Registrable Securities who consents in writing to be bound by the terms and
conditions of this Agreement.
10. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law. However, in the event that any court or any governmental
authority or agency declares all or any part of
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any Section of this Agreement to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any other Section of this Agreement,
and in the event that only a portion of any Section is so declared to be
unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate the balance of such Section.
11. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
12. Notices. All notices required or permitted hereunder shall be
in writing and shall be: (a) sent by telex or facsimile transmission (to be
effective when receipt is acknowledged unless sent after 5:00 p.m. on any
business day, in which event notice shall be deemed received on the next
business day); (b) personally delivered; (c) sent by certified mail, return
receipt requested; or (d) sent by a nationally recognized commercial overnight
delivery service with provisions for a receipt, postage or delivery charges
prepaid and, except as otherwise provided in Section 12(a) above, shall be
deemed given when personally delivered or within three business days after such
mailing and addressed to the Party, to the Investors at their address on the
books and records of the Company, and to the Company as follows:
To the Company: Empire of Carolina, Inc.
5150 Linton Boulevard
Delray Beach, Florida 33484
Attn.: Lawrence Geller,
Vice President and General Counsel
Facsimile: (561) 498-0722
with a copy to: Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attn: Kenneth G. Kolmin
Facsimile: (312) 876-7934
Such addresses may be changed by any such Party by providing like notice to the
other Parties in accordance with this Section.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same document.
14. Entire Agreement. This Agreement contains the entire agreement
and understanding of the Parties concerning the subject matter hereof, and
supersedes and replaces all prior and contemporaneous negotiations, proposed
agreements and agreements, written and oral, relating to such subject matter.
There are no agreements, representations or warranties between the Parties as to
the subject matter hereof other than those provided herein. Each of the Parties
agrees and acknowledges that this Agreement replaces and
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terminates any and all registration rights provided for in the Buddy L
Registration Rights Agreement.
15. Amendments and Governing Law. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the Company
and Holders of a majority of the then existing shares of Registrable Securities.
Any term, covenant, agreement or condition in this Agreement may be waived
(either generally or in particular instances and either retroactively or
prospectively) by written instruments signed by the Company and Holders of a
majority of the existing shares of Registrable Securities. Any such waiver shall
be limited to its express terms and shall not be deemed a waiver of any other
term, covenant, agreement or condition. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state. Any amendment or waiver
effected in accordance with this Section shall be binding upon each Holder of
Registrable Securities then outstanding, each future Holder of such Registrable
Securities and the Company.
16. JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY
SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES
THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH
COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE ADDRESS SET FORTH BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 10 DAYS AFTER SUCH MAILING.
17. Further Assurances. Each Party agrees to take all such steps,
execute and deliver such further documents and perform such acts as may be
reasonably requested by any other Party in order to effectuate the transactions
contemplated by this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first above written.
EMPIRE OF CAROLINA, INC. SMEDLEY INDUSTRIES, INC.
LIQUIDATING TRUST
By: /s/ Lawrence Geller By: /s/ Christopher J. Kearns
------------------- -------------------------
Name: Lawrence Geller Name: Christopher J. Kearns
Title: Vice President-General Counsel Title: Director-Kahn Construction, Inc.,
Trustee
Address: Address:
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