EXHIBIT 10.10.1
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") dated as of January 10, 1997, is made by and among DeCrane
Aircraft Holdings, Inc., an Ohio corporation (the "Company"), and the several
parties named in Schedule I hereto (the "Shareholders").
PRELIMINARY STATEMENTS:
A. The Shareholders hold the amounts of Common Shares, without
par value ("Common Shares"), Warrants to purchase Common Shares ("Common
Warrants"), Series A Convertible Preferred Shares, without par value ("Series
A Shares"), Series B Convertible Preferred Shares, without par value ("Series
B Shares"), Warrants to purchase Series B Shares (the "Series B Warrants"),
Series C Convertible Preferred Shares, without par value ("Series C Shares"),
Series D Convertible Preferred Shares, without par value (the "Series D
Shares"), Series E Convertible Preferred Shares, without par value (the
"Series E Shares") and the other securities set forth opposite their
respective names on Schedule I hereto (the Series A Shares, Series B Shares,
Series C Shares, Series D Shares and Series E Shares, collectively the
"Preferred Stock") (the Common Warrants and Series B Warrants, collectively
the "Warrants").
B. The Company and certain of the parties hereto executed that
certain Amended and Restated Registration Rights Agreement dated as of
October 15, 1991, as amended (the "Amended Registration Rights Agreement"),
that certain Second Amended and Restated Registration Rights Agreement dated
as of November 2, 1994 (the "Second Amended Registration Rights Agreement"),
and that certain Third Amended and Restated Registration Rights Agreement
dated as of February 20, 1996 (the "Third Amended and Restated Registration
Rights Agreement"), and that certain Fourth Amended and Restated Registration
Rights Agreement dated as of September 18, 1996 (the "Fourth Amended
Registration Rights Agreement"), governing, among other things, certain
matters with respect to the registration of the shares of capital stock of
the Company.
C. The Company and the parties hereto desire to amend and
restate the Fourth Amended and Restated Registration Rights Agreement in its
entirety by the execution of this Agreement.
AGREEMENT:
1. CERTAIN DEFINITIONS. As used herein, the following terms
shall have the following respective meanings:
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"ADDITIONAL RESTRICTED SECURITIES" shall mean, the Common Warrants
and shares of Common Stock now held or hereafter acquired by
Internationale Nederlanden (U.S.) Capital Corporation, a Delaware
corporation ("ING"), and by The Provident Bank, a banking association
organized under the laws of the State of Ohio ("Provident"), and ING's and
Provident's successors and assigns.
"COMMISSION" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Shares as constituted as of the
date of this Agreement, and Common Shares issuable upon exercise of the
Common Warrants.
"CONVERSION SHARES" shall mean shares of Common Stock issued upon
conversion of the Preferred Stock and Common Stock issued upon conversion
of the Series B Shares issuable upon exercise of the Series B Warrants.
"ELECTRA RESTRICTED SECURITIES" shall mean, collectively, Common
Shares, Common Warrants, Series B Warrants and Preferred Stock now held or
hereafter acquired by Electra Investment Trust PLC, a corporation
organized under the laws of the United Kingdom ("EIT") and Electra
Associates, Inc. ("Electra") and EIT's and Electra's successors and
assigns.
"INITIAL PUBLIC OFFERING" shall mean the closing of the initial
underwritten public offering for Common Shares of the Company pursuant to
a registration statement under the Securities Act.
"NASSAU RESTRICTED SECURITIES" shall mean, collectively, Common
Shares, Common Warrants, Series D Shares and Series E Shares now held or
hereafter acquired by Nassau Capital Partners L.P., a Delaware limited
partnership ("Nassau Capital") and NAS Partners I L.L.C., a Delaware
limited liability company ("NAS") and Nassau Capital's and NAS's
successors and assigns.
"PRIMARY RESTRICTED STOCK" shall mean, collectively, the Preferred
Stock, the Common Stock and those Common Warrants which are not Electra
Restricted Securities, Nassau Restricted Securities or Additional
Restricted Securities. For purposes hereof, "Preferred Stock" also shall
include the Series B Warrants and the Series B Shares issuable upon
exercise of the Series B Warrants.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 8 hereof.
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"RESTRICTED STOCK" shall mean, collectively, the Electra Restricted
Securities, Nassau Restricted Securities, the Primary Restricted Stock,
the Additional Restricted Securities and all Common Shares issuable upon
exercise of options to purchase the same granted hereafter to R. Jack
DeCrane.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SECURITIES PURCHASE AGREEMENT" shall mean the Securities Purchase
Agreement of even date herewith among the Company, Nassau Capital, NAS and
EIT.
"SELLING EXPENSES" shall mean the expenses so described in Section 8
hereof.
2. RESTRICTIVE LEGEND. Each instrument representing the
Restricted Stock, except as provided in Section 3 hereof, shall be stamped
or otherwise imprinted with a legend substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer
of any Restricted Stock (other than under the circumstances described in
Section 4, 5 or 6 hereof), the holder thereof shall give written notice to
the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the
Company, shall be accompanied by an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed transfer of the
Restricted Stock, as the case may be, may be effected without registration
under the Securities Act. In the event that (but only in the event that) the
holder of such Restricted Stock gives such written notice and provides such
opinion, if requested by the Company, the holder of such Restricted Stock
shall be entitled to transfer such Restricted Stock in accordance with the
terms of its notice, PROVIDED, HOWEVER, that no such opinion or documentation
shall be required if the notice pertains to distribution by any holder
pursuant to subpart (b) or (c) of Section 2 of that certain Fourth Amended
and Restated Shareholders Agreement between the parties hereto (the
"Shareholders Agreement"). Each instrument for Restricted Stock transferred
as above provided shall bear the legend set forth in Section 2, except that
such instrument shall not bear such legend if (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting
public sale
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without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration
under the Securities Act.
The foregoing restrictions on transferability of Restricted Stock
shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and
sold or otherwise disposed of in accordance with the intended method of
disposition by the seller or sellers thereof set forth in the registration
statement concerning such shares.
4. REQUIRED REGISTRATION.
(a) At any time, (i) the holders of Electra Restricted
Securities constituting at least a majority of the total Electra Restricted
Securities outstanding at such time (treating for the purpose of such
computation (A) the holders of Preferred Stock as the holders of the
Conversion Shares then issuable upon conversion of such Preferred Stock, (B)
the holders of Common Warrants if then issued and outstanding, as the holders
of the shares of Common Stock issuable upon exercise of the Warrant, and (C)
the holders of Series B Warrants as the holders of the shares of Common Stock
then issuable upon exercise of the Series B Warrant and conversion of the
Series B Shares issuable thereby), or (ii) the holders of Nassau Restricted
Securities constituting at least a majority of the total Nassau Restricted
Securities outstanding at such time (treating for the purpose of such
computation (A) the holders of Series D Shares as the holders of the
Conversion Shares then issuable upon conversion of such Series D Shares, (B)
the holders of Series E Shares as the holders of the Conversion Shares then
issuable upon conversion of such Series E Shares and (C) the holders of
Common Warrants if then issued and outstanding, as the holders of the shares
of Common Stock issuable upon exercise of the Warrant), or (iii) the holders
of Primary Restricted Stock constituting at least a majority of the total
Primary Restricted Stock outstanding at such time (treating for the purpose
of such computation (A) the holders of Preferred Stock as the holders of the
Conversion Shares then issuable upon conversion of such Preferred Stock, (B)
the holders of Common Warrants if then issued and outstanding, as the holders
of the shares of Common Stock issuable upon exercise of the Warrant, and (C)
the holders of Series B Warrants as the holders of the shares of Common Stock
then issuable upon exercise of the Series B Warrant and conversion of the
Series B Shares issuable thereby) may request the Company to register under
the Securities Act all or any portion of the Nassau Restricted Securities,
Electra Restricted Securities or Primary Restricted Stock, as the case may
be, held by such requesting holder or holders for sale in the manner
specified in such notice, PROVIDED, HOWEVER, that the only securities which
the Company
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shall be required to register pursuant hereto shall be shares of Common
Stock, PROVIDED, FURTHER, HOWEVER, that, in any underwritten public offering
contemplated by Section 4, 5 or 6 hereof, other holders of Preferred Stock or
Warrants shall be entitled to sell such Preferred Stock or Warrants to the
underwriters for conversion or exchange and the sale of the shares of Common
Stock issued upon such conversion; PROVIDED FURTHER, HOWEVER, that if the
Warrants are to be sold to the underwriters, there shall be deducted from the
proceeds due to the selling holder the aggregate exercise price required to
be paid by such holder upon exercise of the Warrants.
(b) Promptly following receipt of any notice under this Section
4, the Company shall immediately notify (i) any holders of Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Stock from
whom notice has not been received and (ii) any other holders of Restricted
Stock, and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in
such notice from requesting holders, the number of shares of Restricted Stock
specified in such notice (and in any notices received from other holders
within 20 days after their receipt of such notice from the Company). If such
method of disposition shall be an underwritten public offering, the Company
may designate the managing underwriter of such offering, subject to the
approval of the selling holders of Nassau Restricted Securities, Electra
Restricted Securities or Primary Restricted Stock, as the case may be,
requesting registration under the Securities Act, which approval shall not be
unreasonably withheld. The Company shall only be obligated to register
Nassau Restricted Securities or Primary Restricted Stock pursuant to a demand
by each such holder under this Section 4 on one occasion and shall only be
obligated to register Electra Restricted Securities pursuant to a demand by
such holder under this Section 4 on one occasion. Notwithstanding anything
to the contrary contained herein, the obligation of the Company under this
Section 4 shall be deemed satisfied only when a registration statement
covering all shares of Nassau Restricted Securities, Electra Restricted
Securities or Primary Restricted Stock specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holder, shall have become effective.
(c) The number of shares of Restricted Stock to be included in
such an underwriting may be reduced (PRO RATA among the requesting holders
based upon the number of shares so requested to be registered, treating for
purposes of such computation (i) the holders of Preferred Stock as the
holders of the Conversion Shares then issuable upon conversion of such
Preferred Stock, (ii) the holders of Common Warrants, if then issued and
outstanding, as the holders of the shares of Common Stock issuable upon
exercise of the Common Warrants, and (iii) the holder of the Series B
Warrants, if then outstanding, as the holder of the shares of Common Stock
then issuable upon exercise
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of the Series B Warrant and conversion of the Series B Shares issuable
thereby) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold therein; PROVIDED, HOWEVER, if a demand registration is
a request by holders of Nassau Restricted Securities, Electra Restricted
Securities or Primary Restricted Securities pursuant to subpart (a) of this
Section 4 to register and sell Nassau Restricted Securities, Electra
Restricted Securities or Primary Restricted Securities, as the case may be,
in the Initial Public Offering, and the managing underwriters advise the
Company in writing that in their opinion the number of (A) Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Securities,
as the case may be, requested to be included in the offering, (B) securities
desired by the Company to be included in such offering and pro rata among the
Holders of Nassau Restricted Securities or Electra Restricted Securities, as
the case may be, on the basis of the amount of Nassau Restricted Securities
or Electra Restricted Securities, respectively, owned by each such holder,
and (C) if permitted hereunder, other securities requested to be included in
such offering, exceeds the number of securities which can be sold therein
without adversely affecting the marketability of the offering, there shall be
included in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Nassau Restricted Securities or Electra Restricted
Securities, as the case may be, requested to be included in such
registration, and PRO RATA among the holders of Nassau Restricted Securities
or Electra Restricted Securities, as applicable, on the basis of the amount
of Nassau Restricted Securities or Electra Restricted Securities, as the case
may be, owned by each such holder, or PRO RATA among the holders of Nassau
Restricted Securities and Electra Restricted Securities if such demand
registration is a request by holders of Nassau Restricted Securities and
holders of Electra Restricted Securities pursuant to subpart (a) of this
Section 4 and (iii) third, other securities requested to be included in such
registration by holders of the Restricted Stock; PROVIDED, FURTHER, HOWEVER,
if a demand registration is a request by holders of Nassau Restricted
Securities, Electra Restricted Securities or Primary Restricted Securities
pursuant to subpart (a) of this Section 4 to register and sell Nassau
Restricted Securities, Electra Restricted Securities or Primary Restricted
Securities, as the case may be, subsequent to the Initial Public Offering,
and the managing underwriters advise the Company in writing that in their
opinion the number of (A) Nassau Restricted Securities, Electra Restricted
Securities or Primary Restricted Securities, as applicable, requested to be
included in the offering, (B) securities desired by the Company to be
included in such offering and PRO RATA among the Holders of Nassau Restricted
Securities or Electra Restricted Securities, as the case may be, on the basis
of the amount of Nassau Restricted Securities or Electra Restricted
Securities, as applicable, owned by each such holder, and (C) if permitted
hereunder, other securities requested to be included in such offering,
exceeds the number of
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securities which can be sold therein without adversely affecting the
marketability of the offering, there shall be included in such registration
(i) first, the Nassau Restricted Securities or Electra Restricted Securities,
as the case may be, requested to be included in such registration, PRO RATA
among the holders of such Nassau Restricted Securities or Electra Restricted
Securities, as applicable, on the basis of the amount of Nassau Restricted
Securities or Electra Restricted Securities, as the case may be, owned by
each holder, or PRO RATA among the holders of Nassau Restricted Securities
and Electra Restricted Securities if such demand registration is a request by
holders of Nassau Restricted Securities and Electra Restricted Securities
pursuant to subpart (a) of this Section 4 (ii) second, the securities the
Company proposes to sell, and (iii) third, other securities requested to be
included in such registration.
(d) Subject to subpart (c) of this Section 4, the Company shall
be entitled to include in any registration statement referred to in this
Section 4, for sale in accordance with the method of disposition specified by
the requesting holders, shares of Common Stock to be sold by the Company for
its own account, except as and to the extent that, in the opinion of the
managing underwriter (if such method of disposition shall be an underwritten
public offering), such inclusion would adversely affect the marketing of the
Nassau Restricted Securities, Electra Restricted Securities or Primary
Restricted Stock to be sold. Except as provided in this paragraph (d), the
Company will not effect any other registration of its Common Stock, whether
for its own account or that of other holders, from the date of receipt of a
notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
(e) Notwithstanding anything to the contrary contained in this
Section 4, the Company shall not be required to take any action to effect any
registration pursuant to this Section 4:
(i) if in the case of the Initial Public Offering, the
securities covered by such registration statement will not have an
aggregate offering price of at least $25,000,000.00;
(ii) if the Company intends in good faith to file a registration
statement pertaining to an underwritten public offering of securities for
the account of the Company within 90 days after receipt of a notice under
Section 4(a), and the Company so notifies the requesting holder of its
intention in accordance with Section 6; or
(iii) if the holders of a majority of the Additional
Restricted Securities have requested pursuant to Section 5 that the
Company file a registration statement pertaining to an underwritten
public offering of securities at any time
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within 180 days prior to the receipt by the Company of a notice under
Section 4(a).
5. ADDITIONAL REQUIRED REGISTRATION.
(a) At any time after such date as the Company has completed a
public offering of shares of Common Stock pursuant to an effective
registration statement filed under the Securities Act, the holders of the
Additional Restricted Securities constituting at least a majority of the
total Additional Restricted Securities outstanding at such time (treating for
the purpose of such computation the holders of the Additional Restricted
Securities as the holders of the shares of Common Stock issuable upon
exercise of the Additional Restricted Securities) may request the Company to
register under the Securities Act all or any portion of the Additional
Restricted Securities held by such requesting holder or holders for sale in
the manner specified in such notice, PROVIDED, HOWEVER, that the only
securities which the Company shall be required to register pursuant hereto
shall be shares of Common Stock, PROVIDED, FURTHER, HOWEVER, that, in any
underwritten public offering contemplated by Section 4, 5 or 6 hereof, the
holders of Additional Restricted Securities shall be entitled to sell such
Additional Restricted Securities to the underwriters for conversion or
exchange and the sale of the shares of Common Stock issued upon such
conversion; PROVIDED, FURTHER, HOWEVER, that if the Additional Restricted
Securities are to be sold to the underwriters, there shall be deducted from
the proceeds due to the selling holder the aggregate exercise price required
to be paid by such holder upon exercise of the Additional Restricted
Securities.
(b) Promptly following receipt of any notice under this Section
5, the Company shall immediately notify (i) any holders of Additional
Restricted Securities from whom notice has not been received and (ii) any
other holders of Restricted Stock, and shall use its best efforts to register
under the Securities Act, for public sale in accordance with the method of
disposition specified in such notice from requesting holders, the number of
shares of Restricted Stock specified in such notice (and in any notices
received from other holders within 20 days after their receipt of such notice
from the Company). If such method of disposition shall be an underwritten
public offering, the Company may designate the managing underwriter of such
offering, subject to the approval of the selling holders of Additional
Restricted Securities, which approval shall not be unreasonably withheld.
The Company shall be obligated to register Additional Restricted Securities
pursuant to a demand by such holder under this Section 5 on one occasion
only. Notwithstanding anything to the contrary contained herein, the
obligation of the Company under this Section 5 shall be deemed satisfied only
when a registration statement covering all of the shares of Common Stock
issuable upon exchange of the Additional Restricted Securities specified in
notices received as aforesaid, for sale in accordance with the
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method of disposition specified by the requesting holder, shall have become
effective.
(c) The number of shares of Restricted Stock to be included in
such an underwriting may be reduced (PRO RATA among the requesting holders
based upon the number of shares so requested to be registered, treating for
purposes of such computation (i) the holders of Preferred Stock as the
holders of the Conversion Shares then issuable upon conversion of such
Preferred Stock, (ii) the holders of Common Warrants, if then issued and
outstanding, as the holders of the shares of Common Stock issuable upon
exercise of the Common Warrants, and (iii) the holder of the Series B
Warrants, if then outstanding, as the holder of the shares of Common Stock
then issuable upon exercise of the Series B Warrant and conversion of the
Series B Shares issuable thereby) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold therein.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 5, for sale in accordance with the
method of disposition specified by the requesting holders, shares of Common
Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Additional Restricted Securities to be
sold. Except as provided in this paragraph (d), the Company will not effect
any other registration of its Common Stock, whether for its own account or
that of other holders, from the date of receipt of a notice from requesting
holders pursuant to this Section 5 until the completion of the period of
distribution of the registration contemplated thereby.
(e) Notwithstanding anything to the contrary contained in this
Section 5, the Company shall not be required to take any action to effect any
registration pursuant to this Section 5:
(i) if the Company intends in good faith to file a
registration statement pertaining to an underwritten public offering of
securities for the account of the Company within 90 days after receipt of
a notice under Section 5(a), and the Company so notifies the requesting
holder of its intention in accordance with Section 6; or
(ii) if the holders of a majority of the Nassau
Restricted Securities, or the holders of a majority of the Electra
Restricted Securities, or the holders of a majority of the Primary
Restricted Stock have pursuant to Section 4 requested that the Company
file a registration statement pertaining to an underwritten public
offering of securities at any time within 180 days prior to the receipt by
the Company of a notice under Section 5(a).
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6. INCIDENTAL REGISTRATION. If the Company at any time (other
than pursuant to Section 4 or 5 hereof) proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for its
own account or for the account of other security holders or both (except with
respect to registration statements on Form S-4 or S-8 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding
Restricted Stock of its intention to do so. Upon the written request of any
such holder, given within 30 days after receipt of any such notice, to
register any of its Restricted Stock (which request shall state the intended
method of disposition thereof), the Company will use its best efforts to
cause the Restricted Stock as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed, all to the extent requisite to permit the
sale or other disposition by the holder (in accordance with its written
request) of such Restricted Stock so registered. In the event that any
registration pursuant to this Section 6 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder
pursuant to this Section 6 to register Restricted Stock shall specify that
either (i) such Restricted Stock is to be included in the underwriting on the
same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters under such registration or (ii) such Restricted Stock is
to be sold in the open market without any underwriting, on terms and
conditions comparable to those normally applicable to offerings of common
stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwriting may be reduced (PRO
RATA among the requesting holders based upon the number of shares so
requested to be registered, treating for purposes of such computation (A) the
holders of Preferred Stock as the holders of the Conversion Shares then
issuable upon conversion of such Preferred Stock, (B) the holders of Common
Warrants, if then issued and outstanding, as the holders of the shares of
Common Stock issuable upon exercise of the Common Warrants, and (C) the
holder of the Series B Warrants, if then outstanding, as the holder of the
shares of Common Stock then issuable upon exercise of the Series B Warrant
and the conversion of the Series B Shares issuable thereby) if and to the
extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold
therein. Notwithstanding anything to the contrary contained in this Section
6, in the event that there is a firm commitment underwritten offering of
securities of the Company pursuant to a registration statement covering
Restricted Stock and a selling holder of Restricted Stock does not elect to
sell such holder's Restricted Stock to the underwriters of the Company's
securities in connection with such offering, such holder shall refrain from
selling such Restricted Stock so registered pursuant to this Section 6 during
the period of distribution of the Company's securities by such underwriters
and the period in which the
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underwriting syndicate participates in the aftermarket; PROVIDED, HOWEVER,
that such holder shall, in any event, be entitled to sell such holder's
Restricted Stock in connection with such registration commencing on the 90th
day after the effective date of such registration statement.
7. REGISTRATION PROCEDURES AND EXPENSES. (a) If and whenever
the Company is required by the provisions of Section 4, 5 or 6 hereof to use
its best efforts to effect the registration of any of the Restricted Stock
under the Securities Act, the Company will, as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4 or 5 hereof, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause
such registration statement to become and remain effective for the period of
the distribution contemplated thereby (determined as hereinafter provided);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period specified in paragraph (i) above and to comply with
the provisions of the Securities Act with respect to the disposition of all
Restricted Stock covered by such registration statement in accordance with
the sellers' intended method of disposition set forth in such registration
statement for such period;
(iii) furnish to each seller and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may
reasonably request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(iv) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the case
of an underwritten public offering, the managing underwriter, shall
reasonably request;
(v) immediately notify each seller under such registration
statement and each underwriter, 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 contained in such
registration statement, as then in effect, includes 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 not misleading in the
light of the circumstances then existing; upon the occurrence of
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any such event, the Company shall, as promptly as reasonably practicable,
prepare a post-effective amendment to the registration statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Restricted Stock, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading.
(vi) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock is
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes
of such registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under
the Securities Act, (B) the registration statement, the related prospectus,
and each amendment or supplement thereof, comply as to form in all material
respects with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements contained therein), and (C) to
such other effects as may reasonably be requested by counsel for the
underwriters or by such seller or its counsel, and (ii) a letter dated such
date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to the registration in respect of which
such letter is being given as such underwriters or seller may reasonably
request; and
(vii) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with
such registration statement.
(b) For purposes of paragraphs (i) and (ii) above and of Section
4(c) hereof, the period of distribution of Restricted
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Stock in a firm commitment underwritten public offering shall be deemed to
extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted
Stock in any other registration shall be deemed to extend until the earlier
of the sale of all Restricted Stock covered thereby or nine months after the
effective date thereof.
(c) In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them
as shall be necessary in order to assure compliance with federal and
applicable state securities laws.
(d) In connection with each registration pursuant to Section 4,
5 or 6 hereof covering an underwritten public offering, the Company and the
selling holders of Restricted Stock agree to enter into a written agreement
with the managing underwriter selected in the manner herein provided in such
form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters and companies of
the Company's size and investment stature, provided that such agreement shall
not contain any such provision applicable to the Company which is
inconsistent with the provisions hereof.
8. EXPENSES. (a) All expenses incurred by the Company in
complying with Sections 4, 5, 6 and 7 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements
of counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and fees and expenses of
one counsel for the sellers of Restricted Stock but excluding any Selling
Expenses, are herein called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock
are herein called "Selling Expenses".
(b) The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 4, 5 or 6 hereof.
All Selling Expenses in connection with any registration statement filed
pursuant to Section 4, 5 or 6 hereof shall be borne by the holders of
Restricted Stock sold pursuant to such registration statement, PRO RATA in
proportion to the number of securities of each such holder included in such
registration.
9. INDEMNIFICATION. (a) In the event of a registration of any
of the Restricted Stock under the Securities Act pursuant to Section 4, 5 or
6 hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock
thereunder
14
and each other person, if any, who controls such seller or underwriter within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Section 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished by such seller, such
underwriter or such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify
and hold harmless the Company and each person, if any, who controls the
Company within the meaning of the Securities Act, each officer of the Company
who signs the registration statement, each director of the Company, each
underwriter and each person who controls any underwriter within the meaning
of the Securities Act, against all losses, claims, damages or liabilities,
joint or several, to which the Company or such officer or director or
underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
registration statement under which such Restricted Stock was registered under
the Securities Act pursuant to Section 4, 5 or 6, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse the Company
and each such officer, director, underwriter and controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that such seller will be
15
liable hereunder in any such case if and only to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information pertaining to such seller,
as such, furnished in writing to the Company by such seller specifically for
use in such registration statement or prospectus, PROVIDED, FURTHER, HOWEVER,
that the liability of each seller hereunder shall not exceed the proceeds
received by such seller from the sale of Restricted Stock covered by such
registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party other than under this Section 9.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 9 for any legal expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and of liaison
with counsel so selected, PROVIDED, HOWEVER, that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) Notwithstanding the foregoing, in any such action, any
indemnified party shall have the right to retain its own counsel, but the
fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party shall have failed to
retain counsel for the indemnified person as aforesaid or (ii) the
indemnifying party and such indemnified party shall have mutually agreed to
the retention of such counsel. It is understood that the indemnifying party
shall not, in connection with any action or related actions in the same
jurisdiction, be liable for the fees
16
and disbursements of more than one separate firm qualified in such
jurisdiction to act as counsel for the indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of
such settlement or judgment. The indemnifying party shall not, except with
the consent of the indemnified party, enter into any settlement that does not
include as a term thereof an unconditional release of the indemnified party
from all liability with respect to the applicable claim.
(e) If the indemnification provided for in the first two
paragraphs of this Section 9 is unavailable or insufficient to hold harmless
an indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in such proportion as appropriate to
reflect the relative fault of the Company, on the one hand, and the sellers
of such Restricted Stock, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give the notice required under such paragraphs, then the relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact relates to information
supplied by the Company, on the one hand, or the sellers of such Restricted
Stock, on the other hand, and to the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were determined by
PRO RATA allocation (even if all of the sellers of such Restricted Stock
were treated as one entity for such purpose) or by any other method of
allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be
deemed to include 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 paragraph, the
sellers of such Restricted Stock shall not be required to contribute any
amount in excess of the amount, if any, by which the total price at which the
Common Stock sold by each of them was offered to the public exceeds the
amount of any damages which they otherwise have been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
17
(f) The indemnification of underwriters provided for in this
Section 9 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters, in which event the
indemnification of the sellers of Restricted Stock in such underwriting shall
at the sellers' request be modified to conform to such terms and conditions.
Upon the reasonable request of any stockholder selling Restricted Stock
pursuant to a registration statement or any underwriter of such stock, the
Company shall obtain an insurance policy covering the risks described above
in this Section 9 in an amount and with a deductible reasonably requested by
such seller or underwriter and naming such seller, any underwriter of such
stock and any person controlling such seller or underwriter as beneficiaries.
The costs of obtaining and maintaining any such insurance shall be borne by
the Company.
10. CHANGES IN COMMON STOCK. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so
that the rights and privileges granted hereby shall continue with respect to
the Common Stock as so changed.
11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each other party hereto as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency
of government, the Amended and Restated Articles of Incorporation or Code of
Regulations of the Company, or any provision of any indenture, agreement or
other instrument to which it or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any such indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and other similar laws and principles of equity affecting
creditors' rights and remedies generally.
18
12. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are
for the benefit of the holders of Restricted Stock (or any portion thereof)
as such shall be for the benefit of and enforceable by any subsequent holder
of any Restricted Stock (or of such portion thereof), subject to the
provisions respecting the minimum numbers or percentages of shares of Primary
Restricted Stock, Additional Restricted Securities, Nassau Restricted
Securities or Electra Restricted Securities (or of such portion of each)
required in order to be entitled to certain rights, or take certain actions,
contained herein.
(b) All notices, requests, consents and other communications
shall be in writing delivered in person or by facsimile or duly sent by
first-class registered or certified mail, postage prepaid, addressed as
follows:
(i) if to the Company, at 155 Montrose West Avenue,
Suite 210, Copley, Ohio 44321, facsimile number: (216) 668-2518,
Attention: Chief Executive Officer; and
(ii) if to any holder of Restricted Stock, to such
holder at his or its respective addresses and facsimile numbers set forth
in Schedule I attached hereto, or, in any such case, at such other
address, addresses, facsimile number or numbers as shall have been
designated by notice in writing by such holder to the others. Each holder
of Restricted Stock agrees to have at all times an address and a facsimile
number for notices hereunder.
All such notices and communications shall be deemed to have been received (A)
in the case of personal delivery, on the date of such delivery, (B) in the
case of facsimile delivery, upon confirmation of delivery and (C) in the case
of mailing, on the fifth business day following such mailing.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes in their
entirety all previous agreements and understandings, including, without
limitation, the Registration Rights Agreement, dated July 23, 1990, the
Amended Registration Rights Agreement, the Second Amended Registration Rights
Agreement, and the Third Amended and Restated Registration Rights Agreement,
and may not be modified or amended except in writing. The Company shall not
grant any rights to register any of its
19
capital stock in addition to the rights granted in this Agreement to any
party without amending this Agreement.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13. SECURITIES MATTERS. To the extent required, the Company will,
and will cause each of its subsidiaries to, comply in all material respects
with the reporting requirements of the Securities Act and the 1934 Act, or
successor rules thereto or otherwise. The Company will cooperate with each
holder of securities in supplying such information as may be requested by
such holder to comply with the Securities Act or 1934 Act, including Rule 144
and Rule 144A, or successor rules thereto or otherwise.
IN WITNESS WHEREOF, the Company and the parties hereto have
executed this Third Amended and Restated Registration Rights Agreement as of
the day and year first above written.
DeCRANE AIRCRAFT HOLDINGS, INC.
By: /s/
-----------------------------------------
R. Jack DeCrane, Chief Executive Officer
BANC ONE CAPITAL PARTNERS, L.P.
By: /s/
-----------------------------------------
BOCP Corporation, General Partner,
By Authorized Signatory
BRANTLEY VENTURE PARTNERS II, L.P
By: /s/
-----------------------------------------
Paul H. Cascio, General Partner
/s/
-------------------------------------------
R. JACK DeCRANE, in his individual capacity
DSV PARTNERS, IV
By: DSV Management, Ltd.
By: /s/
-----------------------------------------
James R. Bergman, General Partner
ELECTRA INVESTMENT TRUST, P.L.C.
By: /s/
-----------------------------------------
Its:
-----------------------------------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/
-----------------------------------------
Its:
-----------------------------------------
ELECTRA ASSOCIATES, INC.
By: /s/
-----------------------------------------
Its:
-----------------------------------------
THE PROVIDENT BANK
By: /s/
-----------------------------------------
Its:
-----------------------------------------
NASSAU CAPITAL PARTNERS L.P.
By: NASSAU CAPITAL L.L.C.
General Partner
By: /s/
-----------------------------------------
Its:
-----------------------------------------
NAS PARTNERS I L.L.C.
By: /s/
-----------------------------------------
Its:
-----------------------------------------
Schedule I
Warrants to
Purchase
Warrants to Series A Series B Series B Series C Series D Series E
Common Common Preferred Preferred Preferred Preferred Preferred Convertible
Shares Shares Shares Shares Shares Shares Shares Preferred Shares
------ ----------- --------- --------- ----------- --------- ---------- ----------------
Banc One Capital
Partners, L.P. -- 343,569 -- -- -- -- -- --
300 Crescent Court
Suite 1600
Dallas, TX 75201
Fax: (214) 979-4355
Brantley Venture 38,076 17,228 101,244 955,996 30,008 603,712 -- --
Partners II, L.P.
20600 Chagrin Blvd.
Suite 1150
Cleveland, Ohio 44122
Fax: (216) 668-2518
R. Jack DeCrane 230,770 4,455 -- -- -- -- -- --
4966 Tulip Drive
Akron, OH 44313
(216) 668-2518
DSV Partner, IV 13,174 5,960 35,030 330,775 13,446 1,347,987 -- --
620 Newport Center Dr.
Suite 990
Newport Beach, CA 92660
Fax: (714) 760-6947
Electra Investment 10,327 942,705 27,459 259,283 8,152 279,479 -- 500,000
Trust, P.L.C.
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429
Electra Associates, Inc. 1,493 119,581 3,969 37,478 1,178 40,397 -- --
65 Kings Way
London, England
WC2B6QT
Fax: (171) 242-3429
Internationale Nederlanden -- 411,645 -- -- -- -- -- --
(U.S.)
Capital Corporation
135 East 57th Street
New York, NY 10021
Fax: (212) 593-3562
The Provident Bank -- 137,215 -- -- -- -- -- --
1800 Provident Tower
East Fourth Street
Cincinnati, OH 45202
Fax: (513) 579-2858
Nassau Capital Partners -- 911,284 -- -- -- -- 1,989,114 991,124
L.P.
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887
NAS Partners I L.L.C. -- 5,777 -- -- -- -- 10,886 8,876
22 Chambers Street
Princeton, NJ 08542
Fax: (609) 924-8887
Richard G. MacDonald -- -- -- -- -- 30,000 -- --
Chuck H. Becker -- -- -- -- -- 20,000 -- --
Robert A. Rankin -- -- -- -- -- 15,000 -- --
John R. Hinson -- -- -- -- -- 10,000 -- --
John Schnepf 8,000 -- -- -- -- -- -- --
RIDER TO
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
14. EXTENSION OF REQUIRED REGISTRATION AND ADDITIONAL
REQUIRED REGISTRATION TIME PERIODS. Notwithstanding any other provision of
this Agreement, the rights granted pursuant to Sections 4 and 5 shall
terminate on the fourth anniversary of the funding of the proceeds by the
Company following the effectiveness of the registration statement filed by
the Company for the Initial Public Offering of the Company's Common Stock;
provided, however, that the demand rights under either Section 4 or Section 5
shall be extended for an additional year (or years) in the event that (i) a
notice has been given under either such section which did not result in a
registration statement covering all shares of the securities specified in any
such notice having become effective or (ii) a shareholder was unable to give
a demand notice as a result of Section 15.
15. TIME BETWEEN REQUIRED REGISTRATION AND ADDITIONAL REQUIRED
REGISTRATION NOTICES. Notwithstanding any other provisions of this
Agreement, no holder of any securities of the Company shall have the right to
give any demand notice pursuant to Section 4 or Section 5 during the 9 month
period following the date of any registration statement filed as a result of
any other demand notice given pursuant to Section 4 or Section 5 of this
Agreement.
16. HOLDBACK PERIOD. In the event that at the time of receipt
by the Company of any notice pursuant to either Section 4 or Section 5 of
this Agreement, the Company shall be in possession of material non public
information which it reasonably and in good faith after consulting counsel
deems it has a bona fide business purpose for maintaining as confidential,
the Company may so notify the party to this Agreement from whom such notice
was received and thereby delay the performance of the Company's obligations
for a period not to exceed 90 days.