REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into
as of ________ __, 2000, by and among SUNBEAM CORPORATION, a Delaware
corporation (the "COMPANY"), and the Holders referred to below.
W I T N E S S E T H:
WHEREAS, the Company is a party to the Credit Agreement,
dated as of March 30, 1998 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among the Company, the
Subsidiary Borrower referred to therein, the lenders party thereto
(collectively, the "LENDERS"), Morgan Stanley Senior Funding, Inc., as
syndication agent, Bank of America, N.A., as documentation agent, and First
Union National Bank, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT");
WHEREAS, pursuant to Amendment No. 11 and Twelfth Waiver,
dated as of July 6, 2000 (the "ELEVENTH AMENDMENT"), to and under the
Credit Agreement, the Lenders have agreed to amend and waive certain
provisions of the Credit Agreement to permit the Company to consummate the
Exchange Offer referred to and as defined in the Eleventh Amendment; and
WHEREAS, in consideration of the Lenders' agreement to amend
and waive certain provisions of the Credit Agreement to permit the Exchange
Offer, the Company has agreed pursuant to the Eleventh Amendment to (a)
issue to the Lenders (in such capacity, the "HOLDERS") shares of the Common
Stock and/or Preferred Stock of the Company referred to below and (b)
provide certain registration and other rights to the Holders with respect
to public offerings and sales of the Holders' Registrable Securities
referred to below;
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, and for other good and
valuable consideration, the receipt, sufficiency and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms
shall have the following meanings:
"AGREEMENT" means this Registration Rights Agreement, as the
same may be amended, supplemented or otherwise modified from time
to time.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday,
Thursday or Friday that is not a day on which banking institutions
in New York City are authorized by law, regulation or executive
order to close.
"COMMON STOCK" means the common stock, par value $0.01 per
share, of the Company.
"DELAY NOTICE" has the meaning set forth in Section 6(c).
"DEMAND PARTICIPATION NOTICE" has the meaning set forth in
Section 3(a).
"DEMAND REGISTRATION" has the meaning set forth in Section
3(b).
"DEMAND REGISTRATION NOTICE" has the meaning set forth in
Section 3(a).
"ELEVENTH AMENDMENT" has the meaning set forth in the
recitals to this Agreement.
"HOLDER" means the Lenders identified on the signature pages
hereto and any of their transferees hereunder of Registrable
Securities; provided, however, that each Lender identified on the
signature pages hereto, together with any affiliates of such Lender
to which Registrable Securities have been transferred during the
term of this Agreement, shall constitute one (1) Holder for
purposes of the demand registration rights granted pursuant to
Section 3 of this Agreement. For purposes of this Agreement, the
Company may deem the registered holder of a Registrable Security to
be the Holder thereof.
"MATERIAL ADVERSE CHANGE" means, for purposes of Section
3(d)(ii), any material adverse change in, or the occurrence of any
event which could reasonably be expected to have a material adverse
effect on, the business or condition (financial or otherwise) of
the Company and its subsidiaries taken as a whole (it being
understood that a change in general political, economic, financial,
banking, capital market or consumer products industry conditions
shall not be a "Material Adverse Change" unless such change has, or
could reasonably be expected to have, a material adverse effect on
the Company and its subsidiaries as described above).
"MATERIAL DEVELOPMENT CONDITION" has the meaning set forth
in Section 6(c).
"OTHER REGISTRATION STATEMENT" has the meaning set forth in
Section 5(b).
"PERSON" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or other
agency or political subdivision thereof.
"PREFERRED STOCK" means the preferred stock of the Company
to be issued to the Lenders, as contemplated by the Eleventh
Amendment, which preferred stock shall have the terms set forth in
the Certificate of Designation of Preferred Stock attached as
Exhibit D to the Eleventh Amendment.
"PROSPECTUS" means the prospectus included in any
Registration Statement, as amended or supplemented by a prospectus
supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration
Statement and by all other amendments and supplements to such
prospectus, including post-effective amendments and all materials
incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" means (i) the shares of Common
Stock and, if applicable, the shares of Preferred Stock, owned by
the Holders on the date hereof or issued to or acquired by any
Holders after the date hereof, in each case, as contemplated by the
Eleventh Amendment, and (ii) any other securities issued or
issuable as a result of any other transaction or in connection with
any stock dividend, stock split or reverse stock split,
combination, recapitalization, reclassification, merger or
consolidation, exchange or distribution in respect of such Common
Stock or Preferred Stock.
"REGISTRATION PERIOD" has the meaning set forth in Section
3(c).
"REGISTRATION STATEMENT" means any registration statement
which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus included
therein, all amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such registration
statement.
"REQUESTING SECURITYHOLDER" has the meaning set forth in
Section 4.
"RESTRICTED SECURITY" has the meaning set forth in Section
2.
"RULE 144" means Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar
successor rule thereto that may be promulgated by the SEC.
"RULE 415" means Rule 415 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar
successor rule thereto that may be promulgated by the SEC.
"RULE 903" means Rule 903 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar
successor rule thereto that may be promulgated by the SEC.
"RULE 904" means Rule 904 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar
successor rule thereto that may be promulgated by the SEC.
"SEC" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering
the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as
amended (or any similar successor federal statute), and the rules
and regulations thereunder, as the same are in effect from time to
time.
"UNDERWRITTEN OFFERING" means a registered offering in which
securities of the Company are sold to an underwriter for
re-offering to the public.
SECTION 2. Securities Subject to this Agreement. The
securities entitled to the benefits of this Agreement are the Registrable
Securities but, with respect to any particular Registrable Security, only
so long as such security continues to be a Restricted Security. A
Registrable Security that has ceased to be a Registrable Security cannot
thereafter become a Registrable Security. As used herein, a "RESTRICTED
SECURITY" is a Registrable Security which has not been effectively
registered under the Securities Act and distributed in accordance with an
effective Registration Statement or which has not been sold by a Holder
pursuant to Rule 144 (except pursuant to a transfer to any affiliate of
such Holder), Rule 903 or Rule 904, unless, in the case of a Registrable
Security distributed pursuant to Rule 903 or Rule 904, any applicable
restricted period has not expired or the SEC or its staff has taken the
position in a published release, ruling or no-action letter that securities
distributed under Rule 903 or Rule 904 are ineligible for resale in the
United States under Section 4(l) of the Securities Act notwithstanding
expiration of the applicable restricted period.
SECTION 3. Demand Registration.
(a) Demand. Each Holder shall have the right to deliver one
(1) written notice to the Company to effect the registration (a "DEMAND
REGISTRATION NOTICE") of all or such portion of the Registrable Securities
consisting of Common Stock held by such Holder as such Holder shall specify
and, from and after 90 days after the date of this Agreement, each Holder
shall also have the right to deliver one (1) Demand Registration Notice in
respect of all or such portion of the Registrable Securities consisting of
Preferred Stock held by such Holder as such Holder shall specify. Within
five (5) Business Days after receipt of any such Demand Registration
Notice, the Company shall give written notice of such proposed registration
to all other Holders. Such Holders shall have the right, by giving written
notice (the "DEMAND PARTICIPATION NOTICE") to the Company within fifteen
(15) days after receipt of such notice from the Company, to elect to have
included in such registration such number of shares of Registrable
Securities consisting of Common Stock (if such Demand Registration Notice
was in respect of Registrable Securities consisting of Common Stock) or
Registrable Securities consisting of Preferred Stock (if such Demand
Registration Notice was in respect of Registrable Securities consisting of
Preferred Stock), as applicable, as such Holders may request in such Demand
Participation Notice. A Holder or Holders may, at any time before the
applicable Registration Statement relating to the Demand Registration is
declared effective by the SEC, request that such Holder's Registrable
Securities not be included therein by providing a written notice to that
effect to the Company. Notwithstanding the foregoing, (i) if the managing
underwriter or underwriters, if any, of any such proposed Demand
Registration advises the Company and the Holders that the total amount of
Registrable Securities which the Holders intended to be included in such
Demand Registration (whether pursuant to a Demand Registration Notice, or a
Demand Participation Notice, relating to such Demand Registration) is
sufficiently large to adversely affect the success of such proposed Demand
Registration, then the amount of Registrable Securities to be offered for
the accounts of the Holders delivering Demand Participation Notices shall
be reduced pro rata, based upon the aggregate number of Registrable
Securities intended to be included in such Demand Registration by such
Holders, to the extent necessary to reduce the total amount of Registrable
Securities to be included in such proposed Demand Registration to the
amount such managing underwriter or underwriters reasonably and in good
faith believe will not jeopardize the success of such Demand Registration
before the Registrable Securities offered by the Holder delivering the
Demand Registration Notice are so reduced and (ii) the Company shall not be
obligated to comply with more than one (1) Demand Registration Notice
received from the Holders during any calendar quarter.
(b) Filing of Registration Statement. Upon receipt of a
Demand Registration Notice, the Company shall use its reasonable best
efforts to file, as expeditiously as possible, but in any event no later
than thirty (30) days after the date of receipt of such Demand Registration
Notice by the Company, a Registration Statement on Form S-3 (or any
successor form), or in the case such Registration Statement is required to
be made on Form S-1 or Form S-2 (or any successor form), no later than
sixty (60) days after the date of receipt of such Demand Registration
Notice by the Company, covering all Registrable Securities which the
Company has been so requested to register pursuant to such Demand
Registration Notice and any related Demand Participation Notices (the
"DEMAND REGISTRATION").
(c) Effectiveness of Registration Statement. Subject to the
provisions of Sections 6(c) and (d), the Company agrees to use its
reasonable best efforts to (i) cause the Registration Statement relating to
any Demand Registration described in Section 3(a) to become effective as
promptly as practicable, and (ii) thereafter keep each such Registration
Statement effective continuously for the period (the "REGISTRATION PERIOD")
ending, subject to the second sentence of Section 5(b) and clauses (3) and
(4) of the last sentence of Section 6(c), on the earlier of (A) the first
anniversary of the date such Registration Statement is declared effective
by the SEC and (B) the date on which all Registrable Securities covered by
such Registration Statement have been sold and the distribution
contemplated thereby has been completed.
(d) Discretion of Holders.
(i) Subject to the provisions of this Agreement, the
Holder requesting a Demand Registration shall determine whether (A)
to proceed with, withdraw from or terminate such proposed Demand
Registration, (B) such Demand Registration will be an Underwritten
Offering of the Registrable Securities to be sold pursuant to such
Demand Registration and, if such Demand Registration will be an
Underwritten Offering, such Holder shall select the investment
banker or bankers that will manage the offering, provided that such
investment banker or bankers shall be reasonably satisfactory to
the Company and any other Holders participating in such
Underwritten Offering and (C) to take such actions as may be
necessary to close the sale of Registrable Securities contemplated
by such Demand Registration, including without limitation, waiving
any conditions to closing such sale which have not been fulfilled.
(ii) In the event that the Holder delivering a Demand
Registration Notice determines not to proceed with a Demand
Registration at any time before the Registration Statement with
respect to such Demand Registration has been declared effective by
the SEC, and such Holder reimburses the Company for all reasonable
fees, costs and expenses incurred in connection therewith, then the
Demand Registration Notice delivered by such Holder shall be deemed
null and void and shall not constitute a request for a Demand
Registration by such Holder under Section 3(a); provided, however,
that any Holder that determines not to proceed with a Demand
Registration, as provided immediately above, shall not be entitled
to deliver a new Demand Registration Notice until, at the earliest,
the first day of the next calendar quarter following the withdrawal
of such Holder's prior Demand Registration Notice. If the Holder
determines not to proceed with a Demand Registration (A) at any
time at the request of the Company, (B) as a result of a Material
Adverse Change or (C) because, for any reason other than the
failure of the selling Holders to comply with any covenant or
agreement set forth in this Agreement, the Registration Statement
relating thereto is not declared effective by the SEC within one
hundred twenty (120) days after the initial filing by the Company
of such Registration Statement with the SEC then, in any such case,
such Holder will not be required to reimburse the Company for the
fees, costs and expenses incurred in connection with such Demand
Registration in order to preserve its Demand Registration right
under this Agreement, and the Demand Registration Notice delivered
by such Holder shall be deemed null and void and shall not
constitute a request for a Demand Registration by such Holder under
Section 3(a).
SECTION 4. Piggyback Registration. If, during the term of
this Agreement, the Company at any time proposes to file a registration
statement with respect to any class of equity securities, whether (a) for
its own account (other than in connection with (i) a Registration Statement
contemplated by Section 3 or a registration statement on Form S-4 or S-8
(or any successor or substantially similar form), (ii) an employee stock
option, stock purchase or compensation plan or of securities issued or
issuable pursuant to any such plan, or (iii) a dividend reinvestment plan)
or (b) for the account of a holder of securities of the Company (a
"REQUESTING SECURITYHOLDER") pursuant to demand registration rights granted
by the Company (other than a Registration Statement contemplated by Section
3), then the Company shall in each case give written notice of such
proposed filing to all Holders at least fifteen (15) days before the
anticipated filing date of any such registration statement by the Company,
and such notice shall offer to all Holders the opportunity to have any or
all of the Registrable Securities held by such Holders included in such
registration statement. Each Holder of Registrable Securities desiring to
have its Registrable Securities registered under this Section 4 shall so
advise the Company in writing within ten (10) days after the date of
receipt of such notice by such Holder (which request shall set forth the
amount of Registrable Securities of such Holder for which registration is
requested), and the Company shall use its reasonable best efforts to
include in such registration statement all such Registrable Securities so
requested to be included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters, if any, of any such proposed public
offering advises the Company that the total amount of securities which the
Holders of Registrable Securities, the Company and any other Persons
intended to be included in such proposed public offering is sufficiently
large to adversely affect the success of such proposed public offering,
then the amount of Registrable Securities to be offered for the accounts of
the Holders shall be reduced pro rata, based upon the aggregate number of
Registrable Securities intended to be included in such offering by such
Holders, to the extent necessary to reduce the total amount of securities
to be included in such proposed public offering to the amount such managing
underwriter or underwriters reasonably and in good faith believes or
believe will not jeopardize the success of such public offering before the
securities offered by the Company or any Requesting Securityholder, as
applicable, are so reduced. Anything to the contrary in this Agreement
notwithstanding, the Company may withdraw or postpone a Registration
Statement referred to in this Section 4 at any time before it becomes
effective or withdraw, postpone or terminate the offering after it becomes
effective without obligation to any Holder; provided that the Company's
obligations under Sections 5(a)(ii), 7 and 8 shall remain effective.
SECTION 5. Registration Procedures.
(a) General. In connection with the Company's registration
obligations pursuant to Section 3 and, to the extent applicable, Section 4,
the Company shall:
(i) prepare and file with the SEC a new Registration
Statement or such amendments and post-effective amendments to an
existing Registration Statement as may be necessary to keep such
Registration Statement effective during the Registration Period
(and upon the occurrence of any event described in Sections
5(a)(ii), 5(b) or 6(c) use its reasonable best efforts to cause
such Registration Statement or a new Registration Statement to
become effective), provided that no Registration Statement shall be
required to remain in effect after all Registrable Securities
covered by such Registration Statement have been sold and
distributed as contemplated by such Registration Statement, and,
provided further that as soon as practicable, but in no event later
than five (5) Business Days before filing such Registration
Statement, any related Prospectus or any amendment or supplement
thereto, other than any amendment or supplement made solely as a
result of incorporation by reference of documents filed with the
SEC subsequent to the filing of such Registration Statement, the
Company shall furnish to the Holders of the Registrable Securities
covered by such Registration Statement and each underwriter, if
any, copies of all such documents proposed to be filed, which
documents shall be subject to the review of such Holders and each
such underwriter;
(ii) notify the selling Holders of Registrable
Securities and each managing underwriter, if any, promptly (A) when
a new Registration Statement, Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any new Registration Statement or post-effective
amendment, when it has become effective, (B) of any request by the
SEC for amendments or supplements to any Registration Statement or
Prospectus or for additional information, (C) of the issuance by
the SEC of any comments with respect to any filing, (D) of any stop
order suspending the effectiveness of any Registration Statement or
the initiation of any proceedings for that purpose, (E) of any
suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (F) if there is a misstatement or
omission of a material fact in any Registration Statement,
Prospectus or any document incorporated therein by reference or if
any event occurs which requires the making of any changes in any
Registration Statement, Prospectus or any document incorporated
therein by reference in order to make the statements therein (in
the case of any Prospectus, in light of the circumstances under
which they were made) not misleading;
(iii) if reasonably requested by the managing
underwriter or underwriters or a Holder of Registrable Securities
being sold in connection with an Underwritten Offering, promptly
incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters and
the Holders of a majority of the Registrable Securities being sold
in such Underwritten Offering agree should be included therein
relating to the sale of the Registrable Securities, including
without limitation, information with respect to the aggregate
number of shares of Registrable Securities being sold to such
underwriter or underwriters, the purchase price being paid therefor
by such underwriter or underwriters and with respect to any other
terms of the Underwritten Offering of the Registrable Securities to
be sold in such offering, and promptly make all required filings of
such Prospectus supplement or post-effective amendment;
(iv) furnish to each selling Holder of Registrable
Securities and each managing underwriter, if any, without charge,
as many conformed copies as may reasonably be requested of the then
effective Registration Statement and any post- effective amendments
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(v) deliver to each selling Holder of Registrable
Securities and each underwriter, if any, without charge, as many
copies of the then effective Prospectus (including each prospectus
subject to completion) and any amendments or supplements thereto as
such Persons may reasonably request;
(vi) use its reasonable best efforts to register or
qualify, or cooperate with the underwriter or underwriters, if any,
and their counsel in connection with the registration or
qualification of, the Registrable Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions as
any selling Holder of Registrable Securities or underwriter
reasonably requests in writing; provided, however, that the Company
will not be required to (A) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify,
but for this paragraph (vi), (B) subject itself to general taxation
in any such jurisdiction or (C) file a general consent to service
of process in any such jurisdiction;
(vii) cooperate with the selling Holders of
Registrable Securities and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered
in such names as the managing underwriter or underwriters may
request at least two (2) Business Days prior to any sale of
Registrable Securities to the underwriter or underwriters;
(viii) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange
(or quotation system operated by a national securities association)
on which identical securities issued by the Company are then listed
and enter into customary agreements including, if necessary, a
listing application and indemnification agreement in customary
form, and provide a transfer agent for such Registrable Securities
no later than the effective date of such Registration Statement;
(ix) otherwise use its reasonable best efforts to
comply in all material respects with all applicable rules and
regulations of the SEC relating to such registration and the
distribution of the securities being offered and make generally
available to its securities holders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act;
(x) use its reasonable best efforts to make any
filings required to be made with the New York Stock Exchange;
(xi) subject to the proviso in paragraph (vi) above,
cause the Registrable Securities covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter or underwriters,
if any, to consummate the disposition of such Registrable
Securities (other than as may be required by (x) the governmental
agencies or authorities of any foreign jurisdiction and (y) a law
applicable to a selling Holder by reason of its own activities or
business other than the sale of Registrable Securities); provided,
however, that, in connection with any offering of Registrable
Securities, the Company shall not be obligated to register for sale
or sell any Registrable Securities in any foreign jurisdiction;
(xii) in connection with any Underwritten Offering of
Registrable Securities, enter into an underwriting agreement
containing representations and warranties, covenants, conditions
and indemnification provisions customary in underwritten offerings
and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or
facilitate the registration or disposition of such Registrable
Securities in such Underwritten Offering;
(xiii) give the Holders of Registrable Securities
being sold, the underwriter or underwriters, if any, participating
in any such disposition of Registrable Securities and their
respective counsel and any accountant retained by such Holders or
underwriter or underwriters such access to its books and records
and such opportunities to discuss the business and financial
condition of the Company with its officers and accountants as shall
be necessary to enable them to conduct a reasonable investigation
within the meaning of the Securities Act, and give such Holders or
underwriters a reasonable opportunity to review the Registration
Statement and any amendment or supplement thereof before filing any
thereof;
(xiv) deliver to each Holder participating in any
Registration Statement not filed on Form S-3 under the Securities
Act, a copy of the "comfort" letter or letters, or any updates
thereof according to customary practice, of the independent
certified public accountants who have certified the Company's
financial statements included in such Registration Statement
covering substantially the same matters with respect to such
Registration Statement (including the Prospectus) and with respect
to events subsequent to the date of the Company's financial
statements as are customarily covered in accountants' letters
delivered to underwriters in underwritten public offerings of
securities, and the Company will use its reasonable best efforts to
cause such "comfort" letters to be addressed to such Holders; and
(xv) deliver to the Holders and any underwriters
participating in any registered offering not filed on Form S-3
under the Securities Act an opinion and any updates thereof of
outside counsel to the Company covering substantially the same
matters as are customarily covered in opinions of issuer's counsel
delivered to underwriters in underwritten public offerings of
securities, addressed to each of such Holders and underwriters
participating in such offering and dated the closing date thereof.
As a condition precedent to the participation in any
registration hereunder, the Company may require each seller of Registrable
Securities as to which any such registration is being effected to furnish
to the Company such information regarding such seller and the distribution
of such Registrable Securities as the Company may from time to time
reasonably request to comply with the applicable provisions of the
Securities Act.
(b) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
Section 5(a)(ii)(D), (E) or (F), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the then current
Prospectus until such Holder (i) is advised in writing by the Company that
a new Registration Statement covering the offer of Registrable Securities
has become effective under the Securities Act, (ii) receives copies of any
required supplemented or amended Prospectus, or (iii) is advised in writing
by the Company that the use of the Prospectus may be resumed. If the
Company shall have given any such notice during a period when a Demand
Registration is in effect, 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 which any such disposition of
Registrable Securities is discontinued pursuant to this Section 5(b). If
reasonably requested by the Company, upon the occurrence of such event,
each Holder will 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.
SECTION 6. Holdback Agreements.
(a) Hold-Back Election. In the case of the registration of
any underwritten primary offering initiated by the Company (other than any
registration by the Company on Form S-4 or Form S-8 (or any successor or
substantially similar form), and other than in connection with (i) an
employee stock option, stock purchase or compensation plan or of securities
issued or issuable pursuant to any such plan, or (ii) a dividend
reinvestment plan) or any underwritten secondary offering initiated at the
request of a holder of securities of the Company pursuant to registration
rights granted by the Company prior to the date of this Agreement, each
Holder agrees that if such Holder is reasonably requested to do so by the
managing underwriter or underwriters, then such Holder shall not effect any
public sale or distribution of Registrable Securities of the Company,
except as part of such underwritten registration, during the period
beginning thirty (30) days prior to the closing date of such underwritten
offering and ending ninety (90) days after such closing date.
(b) Restrictions on Sale. The Company covenants and agrees
that (i) it shall not, and that it shall not cause or permit any of its
subsidiaries to, effect any public sale or distribution of any securities
of the same class as the Registrable Securities or any securities
convertible into or exchangeable or exercisable for such securities (or any
option or other right for such securities) during the thirty (30) day
period prior to, and during the ninety (90) day period beginning on, the
commencement of any underwritten offering of Registrable Securities
pursuant to a Demand Registration unless the Company agrees to include in
any such public sale or distribution of securities all of the Registrable
Securities otherwise to be included in such underwritten offering of
Registrable Securities pursuant to such Demand Registration, (ii) the
Company will not, and the Company will not cause or permit any subsidiary
of the Company to, after the date of this Agreement, enter into any
agreement or contract that (A) would allow any holder or prospective holder
of securities of the Company to include such securities in any registration
statement filed by the Company to the exclusion of Registrable Securities
that any Holder desires to include in any such offering or (b) conflicts
with or limits or prohibits the full and timely exercise by the Holders of
the rights herein to deliver a Demand Registration Notice and effect a
Demand Registration or to join in any Registration Statement as
contemplated by Section 4 hereof and (iii) it shall use its reasonable best
efforts to secure the written agreement of each of its executive officers,
directors and any holders of 10% or more of the Company's then outstanding
Common Stock to not effect any public sale or distribution of any
securities of the same class as the Registrable Securities (or any
securities convertible into or exchangeable or exercisable for any such
securities), or any option or right for such securities during the period
described in clause (i) above.
(c) Material Development Condition. With respect to any
Registration Statement filed or to be filed pursuant to Section 3, if the
board of directors of the Company determines that, in its good faith
judgment, (i) it would (because of the existence of, or in reasonable
anticipation of, any acquisition or corporate reorganization or other
transaction, financing activity, stock repurchase or other development
involving the Company or any subsidiary, or the unavailability for reasons
substantially beyond the Company's control of any required financial
statements, or any other event or condition of similar significance to the
Company or any subsidiary for purposes of disclosure to the stockholders or
potential investors of the Company) be materially disadvantageous (a
"MATERIAL DEVELOPMENT CONDITION") to the Company or any subsidiary or its
stockholders for such Material Development Condition to be publicly
disclosed, and (ii) the Company reasonably believes it would be required
under the Securities Act to disclose such Material Development Condition in
such Registration Statement, then the Company shall, notwithstanding any
other provisions of this Agreement, be entitled, upon the giving of a
written notice that a Material Development Condition has occurred (a "DELAY
NOTICE") to any Holder of Registrable Securities included or to be included
in such Registration Statement, (A) to cause sales of Registrable
Securities by such Holder pursuant to such Registration Statement to cease,
(B) to cause such Registration Statement to be withdrawn and the
effectiveness of such Registration Statement terminated, or (C) in the
event no such Registration Statement has yet been filed or declared
effective, to delay filing or effectiveness of any such Registration
Statement (but not the Company's obligation to expeditiously prepare)
until, in any such case, such Material Development Condition shall be
disclosed or in the good faith judgment of the board of directors of the
Company, such Material Development Condition no longer exists (in either
case, notice of which the Company shall promptly deliver to the
Holders of Registrable Securities included or to be included in such
Registration Statement). Notwithstanding the foregoing provisions of this
Section 6(c): (1) the Company shall not be entitled to cause sales of
Registrable Securities to cease or to delay any registration of Registrable
Securities required pursuant to Section 3 by reason of any existing or
anticipated Material Development Condition if at the time any other
registration statement of the Company is then in effect under the
Securities Act (the "OTHER REGISTRATION STATEMENT") and the Company has a
contractual right to cause selling stockholders to cease sales pursuant
thereto or to withdraw the effectiveness of the Other Registration
Statement and fails to do so, unless either such right arises out of a
misstatement, omission or event that is applicable only to the Registration
Statement and not to the Other Registration Statement; (2) in no event may
such cessation or delay (A) be, for each such Registration Statement, for a
period of more than forty- five (45) consecutive days from the giving of
its Delay Notice to a Holder or Holders with respect to such Material
Development Condition, as provided above, or (B) for each such Registration
Statement, exceed in the aggregate one hundred twenty (120) days in any
consecutive three hundred sixty-five (365) day period; (3) in the event a
Registration Statement is filed and subsequently withdrawn by reason of any
existing or anticipated Material Development Condition as provided in this
sentence, the Company shall cause a new Registration Statement covering the
Registrable Securities to be filed with the SEC as soon as practicable
after such Material Development Condition expires or, if sooner, as soon as
practicable after the expiration of the forty-five (45) day period referred
to in the foregoing clause (2), and the Registration Period for such new
Registration Statement shall be the greater of sixty (60) days or the
number of days that remained in such Registration Period with respect to
the withdrawn Registration Statement at the time it was withdrawn; and (4)
in the event the Company elects not to withdraw or terminate the
effectiveness of any such Registration Statement but to cause a Holder or
Holders to refrain from selling Registrable Securities for any period
during the Registration Period, the Registration Period with respect to
such Holders shall be extended by the number of days during the
Registration Period that such Holders are required to refrain from selling
Registrable Securities.
(d) Limitation on Demand and Piggyback Registration Rights.
Notwithstanding anything to the contrary contained in this Agreement, when,
in the written opinion of counsel for the Company (which counsel shall be
experienced in securities law matters and reasonably acceptable to the
Holders) addressed and delivered to the Holders, registration of the
Registrable Securities is not required by the Securities Act and other
applicable securities laws in connection with a proposed sale of such
Registrable Securities and that all Registrable Securities then held by
each Holder can be sold within a three-month period commencing on the date
of such opinion in a transaction or transactions exempt from the
registration requirements of the Securities Act, the Holders shall have no
rights pursuant to Sections 3 and 4 to request a Demand Registration or a
piggyback registration in connection with such proposed sale and the
Company shall promptly provide to the transfer agent and each Holder's
broker in connection with any sale transaction an opinion as to the matters
set forth in this paragraph, reasonably sufficient in form and substance to
permit the transfer agent to issue stock certificates for such Registrable
Securities without any legend restricting transfer thereof.
SECTION 7. Registration Expenses. 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 (including reasonable fees
and disbursements of counsel in connection with "blue sky" qualifications
or registrations (or the obtaining of exemptions therefrom) of the
Registrable Securities), printing expenses (including expenses of printing
Prospectuses), messenger and delivery expenses, internal expenses
(including without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), fees and
disbursements of its counsel and its independent certified public
accountants (including without limitation, with respect to "comfort"
letters and opinions), the reasonable fees and disbursements of a single
counsel selected by the Holder delivering the applicable Demand
Registration Notice (or the Holders of a majority of the Registrable
Securities proposed to be included in any Registration Statement pursuant
to Section 4), securities acts liability insurance (if the Company elects
to obtain such insurance), fees and expenses of any special experts
retained by the Company in connection with any registration hereunder and
fees and expenses of other Persons retained by the Company, shall be borne
by the Company, provided that the Company shall not be obligated to pay
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities.
SECTION 8. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, but
without duplication, each Holder of Registrable Securities, and each Person
who controls such Holder (within the meaning of the Securities Act),
against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable legal fees and expenses)
resulting from any untrue statement of a material fact in, or any omission
of a material fact required to be stated in, any Registration Statement or
Prospectus 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 furnished in writing to the Company by any Holder or any
underwriters expressly for use therein or by such Holder's failure to
deliver, or its underwriter's or other agent's failure to deliver, a copy
of the Registration Statement or prospectus or any amendments or
supplements thereto after the Company has furnished each Holder with the
requested number of copies of the same. The Company will also indemnify
underwriters participating in the distribution, their officers, directors,
employees, partners and agents, and each Person who controls such
underwriters (within the meaning of the Securities Act), to the same extent
as provided above with respect to the indemnification of the Holders of
Registrable Securities, if so requested.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, each such Holder will furnish to the Company
in writing such information and affidavits relating to such Holder as the
Company reasonably requests for use in connection with any such
Registration Statement or Prospectus and agrees to indemnify and hold
harmless, to the full extent permitted by law, but without duplication, the
Company, its officers, directors, stockholders, employees, advisors and
agents, and each Person who controls the Company (within the meaning of the
Securities Act), against all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and reasonable legal
fees and expenses) resulting from any untrue statement of material fact in,
or any omission of a material fact required to be stated in, the
Registration Statement or Prospectus 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 statement or omission is contained in any
information or affidavit relating to such Holder so furnished in writing by
such Holder to the Company specifically for inclusion therein. The Company
and the other Persons described above shall be entitled to receive
indemnities from underwriters participating in the distribution, to the
same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. In no event shall any participating Holder have an
obligation to indemnify any Person pursuant to this Section 8(b) for any
amount in excess of the net proceeds received by such Holder from the
Registrable Securities offered and sold by such Holder pursuant to such
Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the
defense of such claim with counsel of such indemnifying party's choice and
reasonably satisfactory to the indemnified party; provided, however, that
the failure to notify the indemnifying party shall not relieve the
indemnifying party of any liability that it may have to the indemnified
party hereunder, except to the extent that the substantive rights or
defenses of the indemnifying party are prejudiced by reason of such
failure; provided, further, that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to
participate in (but not control) the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such indemnified
Person unless (1) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to the
indemnified party in a timely manner or (2) in the reasonable judgment of
any such Person, based upon a written opinion of its counsel, a conflict of
interest may exist between such Person and the indemnifying party with
respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such claim on behalf of
such Person). The indemnifying party will not be subject to any liability
for any settlement made without its consent. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld or delayed), effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action. An indemnifying party
who is not entitled to, or elects not to, assume the defense of the claim
will not be obligated to pay the fees and expenses of more than one counsel
(except one (1) local counsel in each applicable jurisdiction if reasonably
required in any specific instance) for all parties indemnified by such
indemnifying party with respect to such claim.
(d) Contribution. If for any reason the indemnification
provided for in Section 8(a) or Section 8(b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated
thereby, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
fault of the indemnifying party, and the indemnified party, as well as any
other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement or the omission or alleged omission relates to
information supplied by the indemnifying party or parties on the one hand,
or the indemnified party or parties on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Holders agree that it would not be just and equitable if contribution
pursuant to this Section 8 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 this Section 8. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 8 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. 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 misrepresentations. In no event shall any
participating Holder be required to contribute any amount in excess of the
net proceeds received by such Holder from the Registrable Securities
offered and sold by such Holder pursuant to the applicable Registration
Statement.
SECTION 9. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this Section 9, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority of the Registrable Securities then
outstanding, provided, however, that no such waiver and no such amendment,
supplement or modification shall (a) adversely affect the rights of a
Holder under Section 3 or Section 4 or (b) amend, modify or waive any
provision of Section 5 in any material respect or this Section 9, in each
case without the written consent of each Holder. Any such waiver and any
such amendment, modification or supplement shall apply equally to each of
the Holders and the Company. Notwithstanding the foregoing, a waiver or
consent to departures from the provisions hereof that relates exclusively
to the rights of Holders whose Registrable Securities are being sold
pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders
of Registrable Securities may be given by the Holders of not less than a
majority of the Registrable Securities proposed to be sold by such Holders
pursuant to such Registration Statement.
SECTION 10. Term of Agreement; Survival of Indemnification.
This Agreement may be terminated at any time by a written instrument signed
by Holders of all of the Registrable Securities then outstanding. Unless
sooner terminated in accordance with the preceding sentence, this Agreement
shall terminate in its entirety on such date as there shall be no
Registrable Securities outstanding. The indemnification provisions
contained in Section 8 shall remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified Person and shall
survive the transfer of the Registrable Securities and termination of this
Agreement.
SECTION 11. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telecopier, or air-courier
guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities, at the
most current address given by such Holder to the Company, in
accordance with the provisions of this Section 11, which address
initially is, with respect to each Holder set forth on the
signature page executed by such Holder, with a copy to Simpson
Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017,
attention: Steve Fuhrman, Esq., telecopy: (212) 455-2502.
(b) If to the Company, initially at 2381 Executive
Center Drive, Boca Raton, Florida 33431, attention: General
Counsel, telecopy: (561) 912-4612 and thereafter at such other
address as may be designated from time to time by notice given in
accordance with the provisions of this Section 11, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New
York, New York 10036, attention: Joseph Halliday, Esq., telecopy:
(917) 777-3260.
(c) All such notices and other communications shall
be deemed to have been delivered and received (i) in the case of
personal delivery or telecopier, on the date of such delivery, (ii)
in the case of air courier, on the Business Day after the date when
sent and (iii) in the case of mailing, on the third Business Day
following such mailing.
SECTION 12. Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 13. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 15. Jurisdiction; Forum. Each party hereto consents
and submits to the jurisdiction of any state court sitting in the County of
New York or federal court sitting in the Southern District of the State of
New York in connection with any dispute arising out of or relating to this
Agreement. Each party hereto waives any objection to the laying of venue in
such courts and any claim that any such action has been brought in an
inconvenient forum. To the extent permitted by law, any judgment in respect
of a dispute arising out of or relating to this Agreement may be enforced
in any other jurisdiction within or outside the United States by suit on
the judgment, a certified copy of such judgment being conclusive evidence
of the fact and amount of such judgment. Each party hereto agrees that
personal service of process may be effected by any of the means specified
in Section 11, addressed to such party. The foregoing shall not limit the
rights of any party to serve process in any other manner permitted by law.
SECTION 16. Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforce ability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
SECTION 18. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto, including without limitation and without the
need for an express assignment to, any subsequent Holder of the Registrable
Securities.
SECTION 19. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and is intended to be
a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SUNBEAM CORPORATION
By:_________________________________
Name:
Title:
HOLDERS:
MORGAN STANLEY SENIOR FUNDING, INC.
By:_________________________________
Name:
Title:
Address:
1585 Broadway
New York, New York 10036
Attention: Michael Petrick
Telecopy: 212-761-0713
BANK OF AMERICA, N.A.
By:_________________________________
Name:
Title:
Address:
335 Madison Avenue
New York, New York 10017
Attention: Peter Wheelock
Telecopy: 212-503-7080
FIRST UNION NATIONAL BANK
By:_________________________________
Name:
Title:
Address:
One First Union Center
301 South College Street, DC-5
Charlotte, North Carolina 28288-0737
Attention: Thomas Molitor
Telecopy: 704-374-3300