EXECUTION COPY
FLEETWOOD CAPITAL TRUST
6% Convertible Trust Preferred Securities
guaranteed by and convertible into shares of
Common Stock of Fleetwood Enterprises, Inc.
REGISTRATION RIGHTS AGREEMENT
February 10, 1998
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Fleetwood Capital Trust, a statutory business trust formed under the
laws of the State of Delaware (the "Trust") by Fleetwood Enterprises, Inc., a
Delaware corporation ("Fleetwood"), proposes to issue and sell to you (the
"Initial Purchaser") upon the terms set forth in a purchase agreement dated
February 4, 1998 (the "Purchase Agreement"), among the Initial Purchaser,
Fleetwood and the Trust, 6% Convertible Trust Preferred Securities (liquidation
amount $50 per Convertible Trust Preferred Security) (the "Preferred
Securities"). As an inducement to the Initial Purchaser to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchaser thereunder, the Trust and Fleetwood agree with you, (i) for
the benefit of the Initial Purchaser and (ii) for the benefit of the holders
from time to time of the Preferred Securities, the 6% Convertible Subordinated
Debentures due 2028 (the "Convertible Subordinated Debentures") and the common
stock of Fleetwood, par value $1.00 per share (the "Fleetwood Common Stock")
initially issuable upon conversion of the Preferred Securities or the
Convertible Subordinated Debentures (collectively, together with any security
issued with respect thereto upon any stock dividend, split or similar event and
the guarantee of Fleetwood under certain conditions of payments by the Trust
with respect to the Preferred Securities (the "Guarantee"), the "Registrable
Securities"), including the Initial Purchaser (each of the foregoing a "Holder"
and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum dated February 4, 1998, in respect of the
Preferred Securities. As used in this Registration Rights Agreement (this
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"Agreement"), the following capitalized defined terms shall have the following
meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the Commission thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with such specified person. For
purposes of this definition, control of a person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such person whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of Trust
dated February 10, 1998, as amended and restated.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Indenture" means the Indenture dated February 10, 1998, between
Fleetwood and The Bank of New York, as Trustee, pursuant to which the
Convertible Subordinated Debentures are being issued.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement
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in reliance upon Rule 430A under the Act), as amended or supplemented by any
amendment or prospectus supplement,including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus with respect to the terms of the offering of any portion of the
Registrable Securities.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Trust and Fleetwood pursuant to the provisions of Section 2 hereof filed
with the Commission which covers some or all of the Registrable Securities, as
applicable, on Form S-3 under Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION. (a) The Trust and Fleetwood shall, (i)
within 90 days following the date of original issuance (the "Issue Date") of the
Preferred Securities, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; and (ii) use their
best efforts to cause such Shelf Registration Statement to be declared effective
under the Act within 150 calendar days after the date of original issuance of
the Preferred Securities; PROVIDED, HOWEVER, that no Holder shall be entitled to
have the Registrable Securities held by it covered by such Shelf Registration
unless such Holder is in compliance with Section 3(m) hereof.
(b) The Trust and Fleetwood shall each use its best efforts (i) to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of two
years after the date of original issuance of the Preferred Securities or such
shorter period that will terminate upon the earlier of the following: (A) when
all the Registrable Securities covered by the Shelf Registration Statement have
been disposed of pursuant to the Shelf Registration Statement and (B) when, in
the written opinion of counsel to the Trust and Fleetwood, all outstanding
Registrable Securities held by persons that are not affiliates of the Trust or
Fleetwood may be resold without registration under
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the Act pursuant to Rule 144(k) under the Act or any successor provision thereto
(in any such case, such period being called the "Effectiveness Period"); and
(ii) after the effectiveness of the Shelf Registration Statement, promptly upon
the request of any Holder to take any action reasonably necessary to register
the sale of any Registrable Securities of such Holder and to identify such
Holder as a selling securityholder. The Trust and Fleetwood shall be deemed not
to have used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if either the Trust or Fleetwood
voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by applicable
law, (ii) upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) below, and such action is taken by the Trust or Fleetwood in good
faith and for valid business reasons or (iii) the continued effectiveness of the
Shelf Registration Statement would require Fleetwood to disclose material
non-public information, including without limitation information regarding a
material financing, acquisition or other corporate event, transaction or
development, and the Board of Directors of Fleetwood shall have determined in
good faith that such disclosure is not in the best interests of Fleetwood and
its stockholders, and, in the case of clause (i) or (ii) above, the Trust and
Fleetwood thereafter promptly comply with the requirements of paragraph 3(i)
below.
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply in addition to
those provisions contained in the Declaration and the Indenture:
(a) The Trust and Fleetwood shall furnish to the Initial Purchaser,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and each amendment thereof, and each amendment or
supplement, if any, to the Prospectus included therein (other than
documents that would be incorporated or deemed to be incorporated therein
by reference and that Fleetwood or the Trust is required by applicable
securities laws or stock exchange requirements to file), and each of the
Trust and Fleetwood shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose.
(b) The Trust and Fleetwood shall take such action as may be
necessary so that (i) any Shelf Registration Statement and any amendment
thereto, and any Prospectus forming part thereof and any amendment or
supplement thereto, and each report or other document incorporated therein
by reference in each case, complies in all material respects with the
Securities Act and the Exchange Act and
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the respective rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(c) (1) Fleetwood shall advise the Initial Purchaser, Brown & Wood
LLP, counsel to the Initial Purchaser ("Counsel to the Initial Purchaser")
and, in the case of clause (i) below, the Holders, and, if requested by the
Initial Purchaser or any Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(2) Fleetwood shall advise the Initial Purchaser, Counsel to the
Initial Purchaser and the Holders, and, if requested by the Initial
Purchaser or any Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Trust or Fleetwood of any notification
with respect to the suspension of the qualification of the Registrable
Securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose;
(iii) the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus so that,
as of such date, the Shelf Registration Statement and the Prospectus
do not contain an untrue statement of a material fact and do not omit
to state a material fact required to be
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stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made); and
(iv) the event that the continued effectiveness of the Shelf
Registration Statement would require Fleetwood to disclose material
non-public information, including without limitation information
regarding a material financing, acquisition or other corporate event,
transaction or development, and the Board of Directors of Fleetwood
shall have determined in good faith that such disclosure is not in the
best interests of Fleetwood and its stockholders (which advice shall
be accompanied by an instruction to suspend the use of the Prospectus
until the Holder is advised in writing by Fleetwood that the
Prospectus may be used and has received copies of any additional or
supplemental filings that are incorporated by reference in such
Prospectus).
(d) Fleetwood shall use its best efforts to prevent the issuance,
and, if issued, to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible
time.
(e) The Trust and Fleetwood shall furnish to the Initial Purchaser
and each Holder of Registrable Securities included within the coverage of
any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all reports, other documents and exhibits (including
those incorporated by reference).
(f) The Trust and Fleetwood shall, during the Effectiveness Period,
deliver to the Initial Purchaser and each Holder of Registrable Securities
included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any amendment
or supplement thereto as the Initial Purchaser and each Holder may
reasonably request; and each of the Trust and Fleetwood consents (except
upon and during the continuance of any event described in paragraph
3(c)(2)(iii) or paragraph 3(c)(2)(iv) above) to the use of the Prospectus
and any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
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Registrable Securities covered by the Prospectus or any amendment or
supplement thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant to any
Shelf Registration Statement, the Trust and Fleetwood shall register or
qualify or cooperate with the Holders of Registrable Securities included
therein and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the Registrable Securities covered by such Shelf Registration Statement;
PROVIDED, HOWEVER, that in no event shall the Trust or Fleetwood be
obligated to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
so qualify but for this Section 3(g), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof then so subject or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject.
(h) Unless the Registrable Securities shall be in book-entry only
form, the Trust and Fleetwood shall cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may request
in connection with the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iv) above, Fleetwood may elect to delay resales of Registrable
Securities until such information has been publicly released. Upon the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) above, and
if required upon the occurrence of any event contemplated by paragraph
3(c)(2)(iv), the Trust and Fleetwood shall promptly prepare a
post-effective amendment to the Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Shelf Registration Statement
and the Prospectus do not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus,
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in the light of the circumstances under which they were made) not
misleading. If the Trust or Fleetwood notifies the Holders of the
occurrence of any event contemplated by paragraphs 3(c)(2)(iii) or
3(c)(2)(iv) above, the Holders shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made or until the
Holders are advised in writing by Fleetwood that the Prospectus may be
used.
(j) Not later than the effective date of any Shelf Registration
Statement hereunder, the Trust and Fleetwood shall provide a CUSIP number
for the Preferred Securities registered under such Shelf Registration
Statement; in the event of and at the time of any distribution of the
Convertible Subordinated Debentures to Holders, Fleetwood shall provide a
CUSIP number for the Convertible Subordinated Debentures and provide the
applicable trustee with certificates for such Registrable Securities, in a
form eligible for deposit with DTC.
(k) The Trust and Fleetwood shall use their best efforts to comply
with all applicable rules and regulations of the Commission and to make
generally available to their security holders, or otherwise provide in
accordance with Section 11(a) of the Securities Act, as soon as practicable
after the effective date of the applicable Shelf Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
(l) The Trust and Fleetwood shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture Act
in a timely manner.
(m) The Trust and Fleetwood may require each Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and Fleetwood such information regarding the Holder
and the distribution of such Registrable Securities as the Trust and
Fleetwood may from time to time reasonably require for inclusion in such
Shelf Registration Statement, and Fleetwood and the Trust may exclude from
such registration the Registrable Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request. Each Holder of Registrable Securities as to which any Shelf
Registration Statement is being effected, severally and not jointly, agrees
promptly to furnish to Fleetwood and the Trust all information required to
be disclosed in order to make the information previously furnished to
Fleetwood and the Trust by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder, severally and not jointly, that the information
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relating to such Holder is as set forth in the Prospectus delivered by such
Holder in connection with such disposition, that such Prospectus does not
as of the time of such sale contain any untrue statement of a material fact
relating to such Holder and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to such Holder necessary
to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
(n) In the event of an underwritten offering, as set forth in Section
6, the Trust and Fleetwood shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing Underwriters
reasonably agree should be included therein and to which the Trust and
Fleetwood do not reasonably object, and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after they are notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment.
(o) The Trust and Fleetwood shall enter into such customary
agreements (including underwriting agreements in customary form) that are
reasonably acceptable to the Trust and Fleetwood and take all other
appropriate actions in connection therewith in order to expedite or
facilitate the registration or the disposition of the Registrable
Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 5 (or such
other provisions and procedures acceptable to the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section 5.
(p) If requested in connection with a disposition of Registrable
Securities pursuant to the Shelf Registration Statement, the Trust and
Fleetwood shall (i) make reasonably available for inspection by the Holders
of Registrable Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by any such
Holder or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Trust and Fleetwood and
its subsidiaries; (ii) cause Fleetwood's officers, directors and employees
and the Regular Trustees to make reasonably available for inspection all
relevant information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection
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with any such Shelf Registration Statement, in each case as is customary
for similar due diligence examinations subject to reasonable assurances by
each such person that such information will only be used in connection with
matters relating to such Shelf Registration Statement; PROVIDED, HOWEVER,
that any information that is designated in writing by the Trust and
Fleetwood, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; and PROVIDED
FURTHER that the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties; (iii) make such representations
and warranties, subject to the ability of Fleetwood and the Trust to do so,
to the Holders of Registrable Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by registrants to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement; (iv) obtain opinions of counsel to the Trust and
Fleetwood (who may be the general counsel of Fleetwood) and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) in customary
form addressed to each selling Holder and the underwriters, if any,
covering such matters as arecustomarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the
matters to be covered by such opinion or a written statement by such
counsel delivered in connection with such opinions shall include, without
limitation, as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the Prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference therein, of
an untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; (v) obtain "cold
comfort" letters and updates thereof from the independent public
accountants of Fleetwood (and, if necessary, any other independent public
accountants of any subsidiary of Fleetwood or of any
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business acquired by Fleetwood for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed to each such Holder of Registrable Securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and (vi) deliver such
other customary documents and certificates as may be reasonably requested
by any such Holders and the Managing Underwriters, if any, including those
to evidence compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
registrants in primary underwritten offerings, subject to the
confidentiality provisions and coordination provisions stated in clause
(ii) above. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(p) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(q) The Trust and Fleetwood will each use its best efforts to cause
the Common Stock issuable upon conversion of (i) the Preferred Securities
and (ii) the Convertible Subordinated Debentures to be listed on the New
York Stock Exchange on or prior to the effective date of any Shelf
Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD")
(the "Rules and By-Laws")) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Trust and Fleetwood will
assist such broker-dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by (i) if such Rules or By-Laws
shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720 of the Rules and By-Laws) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities and to exercise usual standards of due diligence in
respect thereto, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Rules of Fair Practice of the NASD.
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(s) The Trust and Fleetwood shall use their best efforts to take all
other steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section
6, Fleetwood shall bear all fees and expenses incurred in connection with the
performance of its and the Trust's obligations under Sections 2 and 3 hereof and
shall bear or reimburse the Holders for the reasonable fees and disbursements of
Brown & Wood LLP, special counsel to the Holders in connection with the matters
contemplated hereunder, or such other firm of counsel designated by the Initial
Purchaser and reasonably acceptable to Fleetwood to act as counsel therefor in
connection therewith.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Trust and the Company, jointly and severally, will indemnify and
hold harmless the Initial Purchaser, each Holder, each underwriter who
participates in an offering of Registrable Securities, each person, if any, who
controls such parties within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and each of their respective directors, officers, employees,
trustees and agents (each of the foregoing being hereinafter referred to as an
"Indemnified Person"), from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all investigative,
legal and other expenses reasonably incurred in connection with, and any and all
amounts paid in settlement of, any action, suit or proceeding between any of the
Indemnified Persons and any indemnifying parties or between any Indemnified
Person and any third party, or otherwise, or any claim asserted), as and when
incurred, to which any Indemnified Person may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration Statement or in
any application or other document executed by or on behalf of Fleetwood or based
on written information furnished by or on behalf of Fleetwood filed in any
jurisdiction in order to qualify the Registrable Securities under the securities
laws thereof or filed with the Commission, (ii) the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Indemnified Person in
connection with, or relating in any manner to, the Registrable Securities or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, liability,
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expense or damage arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Trust or Fleetwood shall not be liable under this
clause (iii) to the extent it is finally judicially determined by a court of
competent jurisdiction that such loss, claim, liability, expense or damage
resulted directly form any such acts or failures to act undertaken or omitted to
be taken by such Indemnified Person through its gross negligence or willful
misconduct); provided that neither Fleetwood nor the Trust will be liable to the
extent that such loss, claim, liability, expense or damage arises from the sale
of the Registrable Securities to any person by the Indemnified Person and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to the
Indemnified Person furnished in writing to Fleetwood or the Trust by the
Indemnified Person expressly for inclusion in the Shelf Registration Statement.
This indemnity agreement will be in addition to any liability which the Trust
and Fleetwood might otherwise have including under this Agreement.
(b) Each Holder will indemnify and hold harmless (i) the Trust,
the Trustees, its officers and any person controlling the Trust within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii)
Fleetwood, its directors, its officers and each other person, if any, who
controls the Fleetwood within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, in each case to the same extent as the foregoing indemnity
from the Trust and Fleetwood to the Indemnified Persons, but only insofar as
losses, liabilities, claims, expenses or damages arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission, made
in reliance on and in conformity with written information relating to the
Indemnified Person furnished to the Trust or Fleetwood by the Indemnified Person
expressly for use in the Shelf Registration Statement. This indemnity will be
in addition to any liability that the Indemnified Person may otherwise have;
provided, however, that in no case shall any Indemnified Person be liable or
responsible for any amount in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(c) Any party that proposes to assert the right to be
indemnified under this Section 5 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 5, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 5 unless, and only to the
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extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party), or (4) the indemnifying party has
not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 5 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified
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party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 5(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 5 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Trust and Fleetwood or the Initial
Purchaser, the Trust, Fleetwood and any Indemnified Persons shall contribute to
the aggregate losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Trust or Fleetwood, any contribution
received by the Trust or Fleetwood from persons other than the Indemnified
Person, such as persons who control the Trust or Fleetwood within the meaning of
the Act and directors and officers of Fleetwood, who may also be liable for
contribution) to which the Trust, Fleetwood and the Indemnified Person may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Trust and Fleetwood on the one hand and the Indemnified Person
on the other from the transactions in connection with which such liabilities
arose. If, but only if, the allocation provided by the foregoing sentence is
not permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Trust
and Fleetwood on the one hand and any Indemnified Persons on the other with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact related to information supplied by the Trust
or Fleetwood or the Indemnified Person, the intent of the parties and their
relative knowledge, access to
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information and opportunity to correct or prevent such statement or omission.
The Trust, Fleetwood and the Indemnified Person agree that it would not be just
and equitable if contributions pursuant to this Section 5(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 5(d) shall be deemed to include, for purpose of this Section 5(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(d), Holders shall not be
required to contribute any amount in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to the
Shelf Registration Statement, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5(d), any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Trust and Fleetwood will
have the same rights to contribution as the Trust and Fleetwood, respectively,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 5(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 5(d). Except for a settlement entered
into pursuant to the last sentence of Section 5(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
6. UNDERWRITTEN OFFERING. The Holders of Registrable Securities
covered by the Shelf Registration Statement who desire to do so may sell such
Registrable Securities in an underwritten offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto will be approved by, the Holders of a majority of the
Registrable Securities to be included in such offering; PROVIDED, HOWEVER, that
(i) such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to Fleetwood and the Trust and (ii) Fleetwood shall not
be obligated to arrange for more than one underwritten offering during the
Effectiveness Period. No Holder may participate in any underwritten offering
contemplated
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hereby unless such Holder (a) agrees to sell such Holder's Registrable
Securities in accordance with any approved underwriting arrangements,
(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements and (c) at
least 20% of the outstanding Registrable Securities are included in such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders and shall reimburse the Trust
and Fleetwood for the fees and disbursements of their counsel, their independent
public accountants and any printing expenses incurred in connection with such
underwritten offering. Notwithstanding the foregoing or the provisions of
Section 3(n) hereof, upon receipt of a request from the Managing Underwriter or
a representative of Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, Fleetwood may delay the filing of any such amendment or supplement for
up to 90 days if Fleetwood in good faith has a valid business reason for such
delay.
7. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. Fleetwood may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement; PROVIDED that if the Managing
Underwriter, if any, of such offering delivers an opinion to the selling Holders
that the total amount of securities which they and the holders of such
piggy-back rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, number or
kind of securities to be offered for the account of holders of such piggy-back
rights will be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount, number or kind
recommended by the Managing Underwriter prior to any reduction in the amount of
Registrable Securities to be included.
(b) MAJORITY HOLDERS. To the extent that this Agreement provides for
any action, decision or determination to be taken or made by Holders of a
majority or a certain percentage or all the Registrable Securities, the
determination of such majority or certain percentage of Holders shall be made by
deeming the Holders of Convertible Preferred Securities to be the Holders of the
number of outstanding shares of underlying Fleetwood Common Stock into which
such Convertible Preferred
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Securities are convertible or exchangeable and, in the event that the
Convertible Subordinated Debentures have been distributed to Holders, by deeming
the Holders of Convertible Subordinated Debentures to be Holders of the number
of outstanding shares of underlying Fleetwood Common Stock into which such
Convertible Subordinated Debentures are convertible.
(c) AMENDMENTS AND WAIVERS. The provision of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and Fleetwood have obtained
the written consent of the Initial Purchaser.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
1. if to a Holder, at the most current address given by such Holder
to Fleetwood in accordance with the provisions of this Section 7(c);
2. if to the Initial Purchaser, initially at the address set forth
in the Purchase Agreement; and
3. if to the Trust or Fleetwood, initially at its address set forth
in the Purchase Agreement.
4. All such notices and communications shall be deemed to have been
given when received in person, telecopied with receipt confirmed, or mailed by
first class mail or air courier guaranteeing overnight delivery, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
The Initial Purchaser, the Trust and Fleetwood, by notice to the
other, may designate additional or different addresses for subsequent notices or
communications.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Trust or Fleetwood thereto, subsequent Holders of Registrable
Securities. The Trust and Fleetwood hereby agree to extend the benefits of this
Agreement to any Holder of Registrable Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
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(f) 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.
(g) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement and the agreements contemplated
by the Offering Memorandum dated February 4, 1998, relating to the offering of
Preferred Securities, are intended by the parties as a final expression of their
agreement with respect to the subject matter contained herein and the
registration rights granted by Fleetwood and the Trust with respect to the
Registrable Securities and supersede all prior agreements and undertakings among
the parties with respect to such registration rights.
(k) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4 and 5 hereof, and such portions
of Section 6 as referred to in Section 4, each of which shall survive any such
termination.
Please confirm that the foregoing correctly sets forth the agreement
between Fleetwood, the Trust and you.
Very truly yours,
FLEETWOOD CAPITAL TRUST
By: /s/ Paul M. Bingham
--------------------------------
Name: Paul M. Bingham
Title: Regular Trustee
FLEETWOOD ENTERPRISES, INC.
By: /s/Nelson W. Potter
-------------------------------
Name: Nelson W. Potter
Title: President
Confirmed and agreed as of
the date first above-written
PAINEWEBBER INCORPORATED
By: /s/ James S. Murphy
-------------------------
Authorized Signatory
Please confirm that the foregoing correctly sets forth the agreement
between Fleetwood, the Trust and you.
Very truly yours,
FLEETWOOD CAPITAL TRUST
By: /s/ Paul M. Bingham
--------------------------------
Name: Paul M. Bingham
Title: Regular Trustee
FLEETWOOD ENTERPRISES, INC.
By: /s/Nelson W. Potter
-------------------------------
Name: Nelson W. Potter
Title: President
Confirmed and agreed as of
the date first above-written
PAINEWEBBER INCORPORATED
By: /s/ James S. Murphy
-------------------------
Authorized Signatory