EXHIBIT 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS IS AN AMENDED AND RESTATED Registration Rights Agreement, dated
as of February 5, 2003 (the "AGREEMENT"), by and among Polaroid Holding Company,
a Delaware corporation (the "COMPANY"), One Equity Partners, LLC, a Delaware
limited liability company ("OEP"), and the other parties (the "OTHER INVESTORS")
identified on the signature pages hereto as Investors. OEP, the Other Investors
and any other investor in the Company who becomes a party to or agrees to be
bound by this Agreement are sometimes referred to hereinafter individually as an
"INVESTOR" and collectively as the "INVESTORS."
The Company and OEP entered into that certain Registration Rights
Agreement dated as of November 27, 2002 (the "FIRST AGREEMENT") and desire to
amend and restate the First Agreement in its entirety as set forth herein.
TERMS
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto amend and restate the
First Agreement in its entirety and hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the Rules
promulgated under the Exchange Act.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the shares of Common Stock, par value $.001 per
share, of the Company.
"COMPANY REGISTRABLE SECURITIES" has the meaning set forth in Section
4(b) of this Agreement.
"DAMAGES" has the meaning set forth in Section 5(a) of this Agreement.
"DEMAND REGISTRATION" and "DEMAND REGISTRATION REQUESTS" have the
meanings set forth in Section 3(a) of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 2(a) of
this Agreement.
"INSPECTOR" and "INSPECTORS" have the meanings set forth in Section
4(j) of this Agreement.
"OEP REGISTRABLE SECURITIES" means (i) the shares of Common Stock and
Preferred Stock set forth on Schedule I to the Securities Holder Agreement
opposite OEP's name and any shares of Common Stock or Preferred Stock
hereinafter acquired by OEP, its Affiliates and Permitted Transferees, and (ii)
any shares of capital stock of the Company issued or issuable with respect to
the securities referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. For purposes of this Agreement, a
Person will be deemed to be a holder of OEP Registrable Securities whenever such
Person has the right to acquire, directly or indirectly, such OEP Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, PROVIDED, HOWEVER, that each such share of Common Stock and Preferred
Stock shall cease to be an OEP Registrable Security when (i) it has been
effectively registered under the Securities Act and disposed of in accordance
with the Registration Statement covering it; or (ii) it is distributed to the
public pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act.
"OTHER REGISTRABLE SECURITIES" means (i) the shares of Common Stock
set forth on Schedule I to the Securities Holder Agreement opposite each Other
Investor's name and any shares of Common Stock hereinafter acquired by any Other
Investor, and (ii) any shares of capital stock of the Company issued or issuable
with respect to the securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, PROVIDED,
HOWEVER, that Incentive Securities (as defined in the Securities Holders
Agreement) issued to Management Investors (as defined in the Securities Holders
Agreement)(and any shares of capital stock of the Company issued or issuable
with respect to such Incentive Securities by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization) shall be deemed to be Other Registrable
Securities only to the extent that such shares are Vested Shares (as defined in
the Securities Holders Agreement). For purposes of this Agreement, a Person will
be deemed to be a holder of Other Registrable Securities whenever such Person
has the right to acquire, directly or indirectly, such Other Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, but in the case of Registrable Securities subject to vesting, only to
the extent that such Person's right to acquire such Registrable Securities has
vested and PROVIDED, FURTHER, that each Other Registrable Security shall cease
to be an Other Registrable Security when (i) it has been effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it; (ii) it is distributed to the public pursuant to Rule 144
(or any similar provisions then in force) under the Securities Act; or (iii) a
new certificate or other evidence of ownership for it not bearing or requiring a
legend as set forth in Section 1.2 of the Securities Holders Agreement (or other
legend of similar import) and not
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subject to any stop transfer order has been delivered by or on behalf of the
Company and no other restriction on transfer exists under the Securities Act.
"PERSON" means an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PREFERRED STOCK" means the shares of Series A 8% Cumulative
Compounding Preferred Stock, par value $.001 per share, of the Company.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to such prospectus, including post-effective amendments, and all material
incorporated by reference in such prospectus.
"QUALIFIED PUBLIC OFFERING" means a successfully completed firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act (other than a Special Registration Statement)
in respect of the offer and sale of shares of Common Stock for the account of
the Company resulting in aggregate net proceeds to the Company and any
stockholder selling shares of Common Stock in such offering of not less than
$50,000,000.
"REGISTRATION EXPENSES" means the costs and expenses of all
registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to this Agreement
(including all federal and state registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of the Company's independent public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
registration)) other than the costs and expenses of any Investors whose
Registrable Securities are to be registered pursuant to this Agreement
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any accountants or other representatives retained by any
Investor; PROVIDED, HOWEVER, that the term "Registration Expenses" shall include
the fees and expenses of one counsel for the holders of Registrable Securities
designated by the holder of a majority of Registrable Securities being
registered, or proposed to be registered, in any offering that is the subject of
this Agreement.
"REGISTRATION STATEMENT" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such registration
statement.
"REGISTRABLE SECURITIES" means the OEP Registrable Securities and the
Other Registrable Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
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"SECURITIES HOLDERS AGREEMENT" means the Amended and Restated
Securities Holders Agreement dated as of the date hereof among the Company, OEP
and the other Investors named therein, as amended from time to time.
"SPECIAL REGISTRATION STATEMENT" means (i) a registration statement on
Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's employees or security holders or (ii) a registration statement
registering a Unit Offering.
"UNIT OFFERING" means a public offering of a combination of debt and
equity securities of the Company in which not more than 20% of the gross
proceeds received for the sale of such securities is attributed to such equity
securities.
"UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE COMMON STOCK. If at any time or from time
to time following the date which is six months after the Company has consummated
its first Qualified Public Offering, the Company proposes to register any of its
Common Stock under the Securities Act (other than on a Special Registration
Statement), whether or not for sale for its own account, it will give written
notice at least thirty (30) days prior to the anticipated effective date of the
registration statement filed or to be filed in connection with such registration
to all holders of Registrable Securities of its intention to register its Common
Stock under the Securities Act and of such holders' rights under this Section 2.
Upon the written request of any such holders of Registrable Securities made
within fifteen (15) days after the receipt of the Company's notice (which
request shall specify the aggregate number of the Registrable Securities to be
registered and will also specify the intended method of disposition thereof),
the Company will include in such registration statement all Registrable
Securities which the Company has been so requested to register by the holders
thereof (an "INCIDENTAL REGISTRATION"), to the extent required to permit the
public disposition (in accordance with such intended methods thereof) of the
Registrable Securities to be so registered; PROVIDED, that (i) if, any time
after giving written notice of its intention to register shares of Common Stock
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register the Company's Common Stock, the Company shall give written
notice of such determination to each holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith); (ii) if a registration
requested pursuant to this Section 2 shall involve an underwritten public
offering, any holder of Registrable Securities requesting to be included in such
registration may elect, in writing at least twenty (20) days prior to the
effective date of the registration statement filed in connection with such
registration, not to register such securities in connection with such
registration; and (iii) if, at any time after the 180-day or shorter period
specified in Section 4(c), the sale of the securities has not been completed,
the Company may withdraw from the registration on a pro rata basis (based on the
number of Registrable Securities
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requested by each holder of Registrable Securities to be so registered) the
Registrable Securities which the Company has been requested to register and
which have not been sold.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration
pursuant to Section 2(a) (other than a Demand Registration, it being understood
the priority for such registrations is set forth in Section 3(b)) involves an
underwritten offering and the managing underwriter (or underwriters) advises the
Company in writing that, in its (or their) opinion, the total number of shares
of Common Stock to be included in such registration, including the Registrable
Securities requested to be included pursuant to this Section 2, exceeds the
maximum number of shares of Common Stock specified by the managing underwriter
or underwriters that may be distributed without adversely affecting the price,
timing or distribution of such shares of Common Stock, then the Company shall
include in such registration only such maximum number of Registrable Securities
which, in the reasonable opinion of such underwriter or underwriters, can be
sold in the following order of priority: (i) first, all of the shares of Common
Stock that the Company proposes to sell for its own account, if any, (ii)
second, all of the shares of Common Stock being registered by holder(s) of
Registrable Securities pursuant to a Demand Registration (as hereinafter
defined), and (iii) third, the Registrable Securities of the holder(s) of
Registrable Securities requested to be included in such Incidental Registration.
To the extent that shares of Common Stock to be included in the Incidental
Registration must be allocated among the holders of Registrable Securities
pursuant to clause (iii) above, such shares shall be allocated pro rata among
the holders of Registrable Securities based on the number of shares of Common
Stock that such holders of Registrable Securities shall have requested to be
included therein; Notwithstanding the foregoing, if an Incidental Registration
is an underwritten offering, the managing underwriter or underwriters may select
shares for inclusion in such Incidental Registration on a basis other than a pro
rata basis if, in the reasonable opinion of such underwriter or underwriters,
selection on such other basis would be material to the success of the offering.
(c) SELECTION OF UNDERWRITERS. If a registration pursuant to
Section 2(a) (other than a Demand Registration, it being understood the
selection of underwriters for such registrations is set forth in Section 3(c))
is an underwritten offering, the investment banker(s) and manager(s) for the
offering shall be selected by the Company.
(d) EXPENSES. The Company shall pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 2.
(e) LIABILITY FOR DELAY. The Company shall not be held
responsible for any delay in the filing or processing of a Registration
Statement which includes any Registrable Securities due to requests by holders
of Registrable Securities pursuant to this Section 2 nor for any delay in
requesting the effectiveness of such Registration Statement.
(f) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such holder (i) agrees to sell his or her or its Common Stock
on the basis provided in any underwriting arrangements approved by the persons
who have selected the underwriter and (ii) accurately completes in a timely
manner and executes all questionnaires, powers of attorney, escrow
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agreements, underwriting agreements and other documents customarily required
under the terms of such underwriting arrangements.
3. DEMAND REGISTRATION.
(a) RIGHT TO DEMAND REGISTRATION. The holders of a majority of
the OEP Registrable Securities shall be entitled to make one or more written
requests ("DEMAND REGISTRATION REQUESTS") to the Company at any time and from
time to time for registration with the Commission under and in accordance with
the provisions of the Securities Act (including, but not limited to,
registrations under Rule 415 promulgated under the Securities Act) of all or
part of the Registrable Securities owned by them (a "DEMAND REGISTRATION")
(which Demand Registration Request shall specify the intended number of OEP
Registrable Securities to be disposed of by such holder(s) and the intended
method of disposition thereof); PROVIDED, that the Company may, if the Board of
Directors so determines in the exercise of its reasonable judgment, that due to
a pending or contemplated acquisition or disposition or public offering, it
would be inadvisable to effect such Demand Registration at such time, defer such
Demand Registration for a single period not to exceed ninety (90) days; PROVIDED
FURTHER, HOWEVER, that if the Company elects to defer such Demand Registration
pursuant to the terms of this sentence, no Demand Registration shall be deemed
to have occurred for purposes of this Agreement until such registration is
effected. Within ten (10) days after receipt of the Demand Registration Request,
the Company will serve written notice (the "NOTICE") of such Demand Registration
Request to all holders of Registrable Securities and, subject to paragraph (b)
below, the Company will include in such registration all Registrable Securities
of such holders with respect to which the Company has received written requests
for inclusion therein from such holders within fifteen (15) business days after
the receipt by the applicable holder of the Notice. All requests made pursuant
to this paragraph 3(a) will specify the aggregate number of the Registrable
Securities to be registered and will also specify the intended methods of
disposition thereof.
(b) PRIORITY IN DEMAND REGISTRATION. The Company will not
include in any Demand Registration any securities (other than Company
Registrable Securities) which are not Registrable Securities without the prior
written consent of the holders of at least a majority of the OEP Registrable
Securities included in such registration. If any of the Registrable Securities
proposed to be registered pursuant to a Demand Registration are to be sold in a
firm commitment underwritten offering and the managing underwriter or
underwriters of a Demand Registration advise the Company and the holders of such
Registrable Securities in writing that in its or their reasonable opinion the
number of shares of Common Stock and/or Preferred Stock (as applicable) proposed
to be sold in such Demand Registration exceeds the maximum number of shares
specified by the managing underwriter that may be distributed without adversely
affecting the price, timing or distribution of the Common Stock and/or Preferred
Stock (as applicable), the Company shall include in such registration only such
maximum number of Registrable Securities which, in the reasonable opinion of
such underwriter or underwriters can be sold in the following order of priority:
(i) first, the number of OEP Registrable Securities requested to be included in
such registration, pro rata, if necessary; (ii) second, the number of Company
Registrable Securities requested to be included in such registration, if any;
(iii) third, all Other Registrable Securities requested to be included in such
registration, pro rata, if necessary; (iv) fourth, all other securities
requested to be included in such registration pursuant to "demand registration"
rights granted to other Persons, provided, that such rights will have been
granted only as
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permitted by this Agreement; and (v) fifth, shares of Common Stock held by other
holders requested to be included in such registration, pro rata if necessary.
(c) SELECTION OF UNDERWRITERS. In the case of a Demand
Registration for an underwritten offering, the holders of a majority of the OEP
Registrable Securities to be included in such Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, which investment banker(s) and manager(s) will be nationally
recognized, subject to the Company's approval which will not be unreasonably
withheld.
(d) EXPENSES. The Company will pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 3.
(e) OTHER REGISTRATION RIGHTS. Except as provided in Sections
7(c) and 7(d) of this Agreement, the Company shall not grant to any Person the
right to request the Company to register any Common Stock under the Securities
Act, or the right to participate in any registration of Common Stock of the
Company under the Securities Act.
4. REGISTRATION PROCEDURES. If and whenever the Company is required
to effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities, and use its best efforts
to cause such Registration Statement to become effective; PROVIDED, HOWEVER,
that before filing any Registration Statement, the Company will furnish copies
of all such documents proposed to be filed to the counsel selected by the
holders of a majority of the Registrable Securities covered by such Registration
Statement, which documents will be subject to reasonably prompt review by such
counsel;
(b) in connection with any Demand Registration, if requested by
the party requesting such Demand Registration, use its best efforts to cause to
be included in such registration, a primary offering by the Company of the
Company's shares of Common Stock having an aggregate value (based on the
midpoint of the proposed offering price range specified in the Registration
Statement used to offer such securities) of up to $20 million ("COMPANY
REGISTRABLE SECURITIES");
(c) 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
a period of not less than 180 days or such shorter period which will terminate
when all Registrable Securities covered by such Registration Statement have been
sold (but not before the expiration of the applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 promulgated thereunder, if
applicable) and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such Registration Statement; PROVIDED, HOWEVER,
that prior to filing with the Commission any such amendment, prospectus or
supplement thereto, the Company shall furnish copies thereof to the counsel
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selected by the holders of a majority of the Registrable Securities covered by
such Registration Statement, which documents will be subject to reasonably
prompt review by such counsel;
(d) furnish to each seller of such Registrable Securities such
number of copies of such Registration Statement and of each such amendment and
supplement thereof (in each case including all exhibits), such number of copies
of the Prospectus included in such Registration Statement (including each
preliminary Prospectus and summary Prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(e) use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as each seller shall request, and do any and
all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; PROVIDED, HOWEVER, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject itself to general taxation in any jurisdiction where it is not then so
subject;
(f) immediately notify each seller of any Registrable Securities
covered by such Registration Statement, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (c) of this Section 4, of the Company
becoming aware that the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and within ten days prepare and furnish to all sellers a reasonable
number of copies of an amended or supplemental Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include 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 in the light of the circumstances then
existing;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market of The
Nasdaq Stock Market, Inc. ("NASDAQ"), and arrange for at least two market makers
to register as such with respect to the Registrable Securities with the National
Association of Securities Dealers, Inc.
(h) provide an independent transfer agent and registrar for such
Registrable Securities covered by such Registration Statement not later than the
effective date of such Registration Statement;
(i) furnish to each seller of Registrable Securities covered by
such Registration Statement an original, manually signed copy, addressed to such
seller (and the underwriters, if any) of:
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(i) an opinion of counsel for the Company, dated the
effective date of such Registration Statement (or, if such
registration involves an underwritten public offering, dated the date
of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to the sellers of not less than 50%
of such Registrable Securities (and the managing underwriter, if any);
and
(ii) a "comfort" letter, dated the effective date of such
Registration Statement (or, if such registration involves an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
Registration Statement, covering such matters with respect to such
Registration Statement as are customarily covered in accountants'
letters delivered to the underwriters in underwritten offerings of
securities as may reasonably be requested by the sellers of not less
than 50% of such Registrable Securities (and the managing underwriter,
if any);
(j) make available for inspection by any seller of such
Registrable Securities covered by such Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (any of the foregoing persons,
including such seller, individually, an "INSPECTOR" and collectively, the
"INSPECTORS"), all pertinent financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably requested by an
Inspector (collectively, the "RECORDS"), and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any Inspector in connection with such Registration Statement; PROVIDED that
any Records that are designated by the Company in writing as confidential shall
be kept confidential by the Inspectors unless (A) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such Registration
Statement or (B) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction or by any regulatory
authority having jurisdiction. Each Investor agrees that non-public information
obtained by it as a result of such Inspections shall be deemed confidential and
acknowledges its obligations under the Federal securities laws not to trade any
securities of the Company on the basis of material non-public information;
(k) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or combination of shares) and cooperate with the holders of a majority of the
Registrable Securities being sold and the underwriters, if any, in the marketing
of the Registrable Securities, including making available the officers,
accountants, counsel, premises, books and records of the Company and its
subsidiaries for such purpose;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least 12 months beginning
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with the first day of the Company's first full calendar quarter after the
effective date of the Registration Statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(m) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(n) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related Prospectus or suspending the qualification of
any Common Stock included in such Registration Statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(o) use its best efforts to cause such Registrable Securities
covered by such registration Statement to be registered or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities.
The Company may require each seller of Registrable Securities as to
which any registration is being effected promptly to furnish to the Company such
information regarding the distribution of such Registrable Securities as may be
legally required. Such information shall be furnished in writing and shall state
that it is being furnished for use in the Registration Statement.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in clause (f) of this Section 4,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by clause (f) of this Section 4, and, if so directed by
the Company, such holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of the Company's notice. In the event the Company shall give any such
notice, the period mentioned in clause (c) of this Section 4 shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (f) of this Section 4 up to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by clause (f) of this Section 4.
If any Registration Statement or comparable statement contemplated by
this Agreement refers to any holder by name or otherwise as the holder of any
securities of the Company and if, in its sole and exclusive judgment, such
holder is or might be deemed to be a controlling person of the Company, such
holder shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such holder and presented to the Company in
writing, to the effect that the holding by such holder of such securities is not
to be
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construed as a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such holder, PROVIDED, that with
respect to this clause (ii) such holder shall furnish to the Company an opinion
of counsel to such effect which opinion and counsel shall be reasonably
satisfactory to the Company.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to
indemnify and hold harmless each holder of Registrable Securities which shall
have been registered under the Securities Act, and such holder's officers,
directors and agents and each other Person, if any, who controls such holder
within the meaning of the Securities Act and each other Person (including
underwriters) who or which participates in the offering of such Registrable
Securities against any losses, claims, damages, liabilities, reasonable
attorneys' fees, costs or expenses (collectively, the "DAMAGES"), joint or
several, to which such holder or controlling Person or participating Person may
become subject under the Securities Act or otherwise, insofar as such Damages
(or proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact made by the Company
or its agents contained in any Registration Statement under which such
Registrable Securities are registered under the Securities Act, in any
preliminary Prospectus or final Prospectus contained therein, or in 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 such holder of Registrable Securities or such controlling Person or
participating Person in connection with investigating or defending any such
Damages or proceeding; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such Damages arise out of or are based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, said preliminary or final
Prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such holder or such
controlling or participating Person, as the case may be, specifically for use in
the preparation thereof; or (ii) an untrue statement or alleged untrue
statement, omission or alleged omission in a Prospectus if such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus which amendment or supplement is
delivered to such holder in a timely manner and such holder thereafter fails to
deliver such Prospectus as so amended or supplemented prior to or concurrently
with the sale of such Registrable Securities to the Person asserting such
Damages.
(b) INDEMNIFICATION BY THE HOLDERS OF REGISTRABLE SECURITIES
WHICH ARE REGISTERED. It shall be a condition of the Company's obligations under
this Agreement to effect any registration under the Securities Act that there
shall have been delivered to the Company an agreement or agreements duly
executed by each holder of Registrable Securities to be so registered, whereby
such holder agrees to indemnify and hold harmless the Company, its directors,
officers and agents and each other Person, if any, which controls the Company
within the meaning of the Securities Act against any Damages, joint or several,
to which the Company,
11
or such other Person or such Person controlling the Company may become subject
under the Securities Act or otherwise, but only to the extent that such Damages
(or proceedings in respect thereof) arise out of or are based upon any untrue
statements or alleged untrue statement of any material fact contained, on the
effective date thereof, in any Registration Statement under which such
Registrable Securities are registered under the Securities Act, in any
preliminary Prospectus or final Prospectus contained therein or in any amendment
or supplement thereto, 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, which, in each such
case, has been made in or omitted from such Registration Statement, said
preliminary or final Prospectus or said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by
such holder of Registrable Securities specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above, with
respect to information furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled
to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 5; and (ii) unless
the indemnified party has been advised by its counsel that a conflict of
interest exists between such indemnified and indemnifying parties under
applicable standards of professional responsibility with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will consent to the entry
of any judgment or enter into any settlement (i) that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation and (ii) except for judgments or settlements calling for the payment
of money only, without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) CONTRIBUTION. If for any reason the indemnification provided
for in the preceding Sections 5(a) or 5(b) is unavailable to an indemnified
party in respect of any Damages referred to therein, the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Damages in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the indemnifying
party, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action
12
in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action; PROVIDED, HOWEVER, that in no
event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the difference between the dollar amount of
the proceeds received by such holder upon the sale of the Registrable Securities
giving rise to such contribution obligation and all amounts previously
contributed by such holder with respect to such Damages. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of any indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
6. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON SALE BY HOLDER OF REGISTRABLE SECURITIES.
Each holder of Registrable Securities whose Registrable Securities are eligible
for inclusion in a Registration Statement filed pursuant to Sections 2 or 3
agrees, if requested by the managing underwriter or underwriters in an
underwritten offering of any Registrable Securities, not to offer, sell
(including a sale pursuant to Rule 144, or any similar provision then in force
under the Securities Act), contract to sell, pledge or otherwise dispose of, or
file (or participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible or exercisable or exchangeable for such
capital stock, or publicly announce an intention to effect any such transaction
during the 15-day period prior to, and during the 180-day period (or such
shorter period as may be agreed to by the parties hereto) beginning on the
effective date of such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriter or underwriters; PROVIDED,
that this provision shall not apply to employees of OEP or BankOne, N.A.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such holder shall
undertake, in its request to participate in any such underwritten offering, not
to effect any public sale or distribution of Registrable Securities (except as
part of such underwritten registration) during such period unless it has
provided 45 days prior written notice of such sale or distribution to the
managing underwriter or underwriter.
13
(b) NO INCONSISTENT AGREEMENTS. The Company will not enter into
any Agreement which is inconsistent with or violate the rights granted to
holders of Registrable Securities in this Agreement.
(c) RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS. The Company
shall (i) not offer, sell, contract to sell, pledge or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company)
directly or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any shares of
Common Stock or other capital stock or any securities convertible into, or
exercisable or exchangeable for, Common Stock or other capital stock or publicly
announce an intention to effect any such transaction, during the 10-day period
prior to, and during the 180-day period beginning on, the effective date of a
Registration Statement filed pursuant to Sections 3 or 4 (except as part of a
Special Registration Statement), and (ii) use reasonable efforts to cause each
holder of Common Stock purchased from the Company at any time after the date of
this Agreement (other than in a registered public offering) to agree not to
effect any public sale or distribution of any such securities during such
period, including a sale pursuant to Rule 144 under the Securities Act (except
as part of such underwritten registration, if permitted).
7. MISCELLANEOUS.
(a) AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) OEP (so long
as OEP, its Affiliates and its Permitted Transferees own in the aggregate at
least 15% of the outstanding Common Stock on a fully diluted basis) and (iii) in
the case of any amendment which materially and adversely affects any Investor
differently from any other Investor, such Investor. No course of dealing between
or among any persons having any interest in this Agreement will be deemed
effective to modify, amend or discharge any part of this Agreement or any rights
or obligations of any person under or by reason of this Agreement.
(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
(c) SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
This Agreement sets forth the entire agreement and understandings among the
parties as to the subject
14
matter hereof and merges and supersedes all prior discussions and understandings
of any and every nature among them.
(d) ADDITIONAL PARTIES. The Company shall be entitled, but not
obligated, with the prior written consent of the holders of at least a majority
of the OEP Registrable Securities, to allow any purchaser or acquirer of equity
securities (or securities or rights convertible or exercisable into equity
securities), of the same type and class of the Registrable Securities, to
execute a counterpart to this Agreement and become a party hereto (each an
"ADDITIONAL PARTY"), in which case the equity securities issued or issuable to
any such Additional Party shall be deemed to be "Other Registrable Securities"
subject to the terms and conditions hereof and such Additional Party shall be
deemed to be a holder of "Other Registrable Securities" for purposes hereof.
Except as set forth in this Section 7(d) and Section 7(c) above, and except for
such registration rights as have been granted prior to the date hereof, the
Company will not grant to any other persons any registration rights.
(e) SEVERABILITY. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
(f) NOTICES. All notices provided for or permitted hereunder
shall be made in writing by hand-delivery, registered or certified first-class
mail, telecopier or air courier guaranteeing overnight delivery to the other
party at the following addresses (or at such other address as shall be given in
writing by any party to the others):
If to the Company to:
Polaroid Holding Company
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to OEP, to:
One Equity Partners, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
With a required copy to:
Dechert
4000 Xxxx Atlantic Tower
15
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
If to any other Investor, at the most current address given by such
Investor to the Company in accordance with this Section 7(f), which address
initially is, with respect to each such Investor, the address set forth under
such Investor's name on the signature pages hereto.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
(g) GOVERNING LAW. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of Delaware, without giving effect to principles of conflicts
of law.
(h) WAIVER OF JURY TRIAL. Each of the parties to this Agreement
waives, to the fullest extent permitted by law, any right to trial by jury of
any claim, demand, action or cause of action (i) arising under this Agreement or
(ii) in any way connected with or related or incidental to the dealings of the
parties hereto in respect of this Agreement or any of the transactions related
hereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise. Each of the parties to this Agreement
agrees and consents that any such claim, demand, action or cause of action shall
be decided by court trial without a jury and that the parties to this Agreement
may file an original counterpart of a copy of this Agreement with any court as
written evidence of the consent of the parties hereto to the waiver of the right
to trial by jury.
(i) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
(j) COUNTERPARTS. This Agreement may be executed in two or more
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 instrument.
(k) FURTHER ASSURANCES. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(l) TERMINATION. Unless sooner terminated in accordance with its
terms, this Agreement shall terminate ten years after the date of this Agreement
and any additional period permitted by law; PROVIDED that the indemnification
rights and obligations set forth in Section 5 hereof shall survive the
termination of this Agreement.
16
(m) REMEDIES. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement, it being
agreed by the parties that the remedy at law, including monetary damages, for
breach of such provision will be inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy at law would be
adequate is waived.
(n) PARTY NO LONGER OWNING REGISTRABLE SECURITIES. If a party
hereto ceases to own any Registrable Securities, such party will no longer be
deemed to be an Investor for purposes of this Agreement; PROVIDED, that the
indemnification rights and obligations set forth in Section 5 hereof shall
survive any such cessation of ownership.
(o) PRONOUNS. Whenever the context may require, any pronouns
used herein shall be deemed also to include the corresponding neuter, masculine
or feminine forms.
(p) NO EFFECT ON EMPLOYMENT OR DIRECTORSHIP. Nothing herein
contained shall confer on any Investor the right to (a) remain in the employ of
the Company or any of its subsidiaries or Affiliates, or (b) remain a member of
the Board of Directors of the Company.
(q) ATTORNEYS' FEES. In the event any party hereto commences any
action to enforce any rights of such party hereunder, the prevailing party in
such action shall be entitled to recover such party's costs and expenses
incurred in such action, including, without limitation, reasonable attorneys'
fees.
(r) CURRENT PUBLIC INFORMATION. At all times after the Company
has filed a registration statement with the Commission pursuant to the
requirements of either the Securities Act or the Exchange Act, and as long as
the Investors shall hold any Registrable Securities, the Company will file all
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, and will
take such further action as any holder or holders of Registrable Securities may
reasonably request, all to the extent required to enable such holders to sell
Registrable Securities pursuant to Rule 144 under the Securities Act (as such
rule may be amended from time to time) or any similar rule or regulation
hereafter adopted by the Commission.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
POLAROID HOLDING COMPANY
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
Chief Administrative and Legal Officer
ONE EQUITY PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
[SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
