EXHIBIT 4.4
AGREEMENT
This Agreement (this "Agreement") dated as of March 29, 2002
is entered into by and between Champion Enterprises, Inc., a corporation
organized under the laws of Michigan (together with its successors, "Champion"),
and Xxxxxxxx International, Ltd., a company organized under the laws of Bermuda
(together with its successors, "Xxxxxxxx").
The parties hereto agree as follows:
1. Purchase and Sale. In consideration of and upon the basis
of the representations, warranties and agreements and subject to the terms and
conditions set forth in this Agreement:
(a) Xxxxxxxx agrees to purchase from Champion
for an aggregate purchase price of twenty-five million dollars
($25,000,000), and Champion agrees to sell to Xxxxxxxx on the Initial
Closing Date (as defined below), in accordance with Section 2 below,
(i) twenty-five thousand (25,000) shares (the "Initial Preferred
Shares") of Champion's Series C Cumulative Convertible Preferred Stock
(the "Series C Preferred Stock"), having the terms and conditions set
forth in the Certificate of Rights and Preferences attached hereto as
Annex A (the "Certificate of Rights and Preferences"), (ii) one warrant
in the form attached hereto as Annex L (a "Warrant"), (iii) the
Xxxxxxxx Rights as provided in Section 1(c) hereof, and (iv) the other
rights described herein (including, but not limited to, the amendment
to the Certificate of Rights and Preferences of Series B-1 Cumulative
Convertible Preferred Stock of Champion Enterprises, Inc. as provided
in Section 1(f) hereof and the extension of the Xxxxxxxx Rights Period
(as defined in Section 1(c) of the Prior Agreement) as set forth in
Section 1(g) hereof). Xxxxxxxx shall have the right to convert the
outstanding Initial Preferred Shares into shares of Common Stock of
Champion, par value one dollar ($1.00) (the "Common Stock"), in the
manner, and subject to the terms, specified in this Agreement and in
the Certificate of Rights and Preferences. Xxxxxxxx shall have the
right to exercise the Warrant in the manner, and subject to the terms,
specified in this Agreement and in the Warrant.
(b) The closing (the "Initial Closing") of the
sale of the Initial Preferred Shares and the Warrant shall occur on
Tuesday, April 2, 2002, or at such other date and time as Xxxxxxxx and
Champion shall mutually agree (such date, the "Initial Closing Date").
(c) Champion grants Xxxxxxxx rights (the
"Xxxxxxxx Rights") to require Champion to issue to it from time to
time, in whole or in part, up to an aggregate of ten thousand (10,000)
shares of Series C Preferred Stock (such shares shall collectively be
referred to as the "Additional Preferred Shares" and together with the
Initial Preferred Shares, the "Series C Preferred Shares") at a price
of one thousand dollars ($1,000) per share for an aggregate purchase
price for all Xxxxxxxx Rights of ten million dollars ($10,000,000).
Xxxxxxxx shall have the right to convert the outstanding Additional
Preferred Shares into shares of Common Stock in the manner, and subject
to the terms, specified in this Agreement and in the Certificate of
Rights and Preferences. To exercise
any Xxxxxxxx Rights, Xxxxxxxx shall deliver one or more written notices
substantially in the form attached hereto as Annex B (a "Xxxxxxxx
Notice") to Champion from time to time during the period commencing on
the date hereof (the "Rights Commencement Date") and ending no later
than sixty (60) Business Days after and excluding the Rights
Commencement Date (the "Xxxxxxxx Rights Period"). Xxxxxxxx may deliver,
in the aggregate, no more than four (4) Xxxxxxxx Notices. Upon
satisfaction or, if applicable, waiver of the relevant conditions set
forth in Sections 14 and 15 hereof, the closing of each exercise of
Xxxxxxxx Rights (each, a "Subsequent Closing") shall take place on the
date that is two (2) Business Days following and excluding delivery of
the Xxxxxxxx Notice, or at such other date and time as Xxxxxxxx and
Champion shall mutually agree (such date and time being referred to
herein as the "Subsequent Closing Date," and together with the Initial
Closing Date, each a "Closing Date"). Xxxxxxxx may, in its sole
discretion and at any time, waive all or any part of the Xxxxxxxx
Rights by delivering written notice to that effect to the Company.
(d) The Warrant is exercisable into Common
Shares in accordance with the terms and conditions set forth in the
Warrant. The form of the "Warrant Exercise Notice" to be executed and
delivered by Xxxxxxxx to Champion specified therein is attached as
Exhibit 1 to the Warrant and the form of the "Warrant Exercise Delivery
Notice" to be executed and delivered by Champion to Xxxxxxxx as
specified therein is attached as Exhibit 2 to the Warrant.
(e) Champion grants Xxxxxxxx the rights to
redeem all or part of the Series C Preferred Shares (including any
accrued and unpaid dividends), pursuant to the terms and conditions set
forth in the Certificate of Rights and Preferences (the "Redemption
Rights"), upon delivery of a notice of redemption in the form attached
hereto as Annex C (the "Redemption Notice"). Under certain
circumstances set forth in the Certificate of Rights and Preferences,
Champion may satisfy its redemption obligations by delivering shares of
Common Stock (the amount of which shall be determined pursuant to the
terms and conditions set forth in the Certificate of Rights and
Preferences) (the "Redemption Common Stock").
(f) On the Initial Closing Date, Champion shall
file with the Michigan Department of Consumer and Industry Services an
Amended and Restated Certificate of Rights and Preferences of Series
B-1 Cumulative Convertible Preferred Stock of Champion Enterprises,
Inc., having the terms and conditions set forth in the First Amended
and Restated Certificate of Rights and Preferences of Series B-1
Cumulative Convertible Preferred Stock of Champion Enterprises, Inc.
attached hereto as Annex M (the "Amended Series B-1 Certificate").
Additionally, Annex N attached hereto shall replace in its entirety
Annex A to the Prior Agreement (as defined below). Each Subsequent
Certificate of Rights and Preferences (as defined in the Prior
Agreement) shall have the same terms and conditions as set forth in
Annex N, except as set forth in Section 1(c) of the Prior Agreement.
(g) Xxxxxxxx and Champion hereby agree that the
expiration of the Xxxxxxxx Rights Period (as defined in Section 1(c) of
the Prior Agreement) shall be extended to December 31, 2004.
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(h) As used herein, the term "Common Shares"
means the Redemption Common Stock and shares issuable upon conversion
or redemption of or as dividends under the Series C Preferred Shares,
and all other Common Stock issuable under the Certificate of Rights and
Preferences, the Warrant or this Agreement; the term "Prior Agreement"
means the Agreement dated as of June 29, 2001 between Champion and
Xxxxxxxx; the term "Prior Common Shares" means the Common Shares (as
that term is defined in the Prior Agreement); the term "Investment
Securities" means the Series C Preferred Shares and the Warrant issued
hereunder, and all Common Shares; the term "Business Day" means any day
on which the Common Stock may be traded on the NYSE or, if not admitted
for trading on the NYSE, on any day other than a Saturday, Sunday or
holiday on which banks in New York City are required or permitted to be
closed; and the term "NYSE" means the New York Stock Exchange, but if
the New York Stock Exchange is not then the principal U.S. trading
market for the Common Stock, or such other applicable common stock,
then "NYSE" shall be deemed to mean the principal U.S. national
securities exchange (as defined in the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) on which the Common Stock, or such
other applicable common stock, is then traded, or if such Common Stock,
or such other applicable common stock, is not then listed or admitted
to trading on any national securities exchange but is designated as a
national market system security or a Nasdaq SmallCap Market Security by
the National Association of Securities Dealers, Inc. ("NASD"), then
such market system, or if such Common Stock, or such other applicable
common stock, is not listed or quoted on any of the foregoing, then the
OTC Bulletin Board.
2. Initial Closing. The Initial Closing shall take place
initially via facsimile on the Initial Closing Date in the manner set forth
below; provided that original certificates representing shares of Series C
Preferred Stock and the Warrant shall be delivered via Federal Express or
another reputable overnight carrier to Xxxxxxxx as Xxxxxxxx instructs in
writing. At the Initial Closing, the following deliveries shall be made:
(a) Series C Preferred Stock. Champion shall deliver
to Xxxxxxxx five (5) stock certificates, each representing five
thousand (5,000) shares of Series C Preferred Stock, duly executed by
Champion in definitive form, together with one Warrant duly executed by
Champion in definitive form, in each case duly registered on the books
of Champion in the name of "Bear Xxxxxxx Securities Corp., as Custodian
for Bear Xxxxxxx International Limited, Pledgee of Xxxxxxxx
International, Ltd." or, if otherwise instructed by Xxxxxxxx, of
Xxxxxxxx or any of its affiliates, pledgees or assignees.
(b) Purchase Price. Xxxxxxxx shall cause to be wire
transferred to Champion, in accordance with the instructions set forth
in Section 20, the aggregate purchase price of twenty-five million
dollars ($25,000,000) in immediately available United States funds.
(c) Closing Documents. The closing documents required
by Sections 14 and 15 shall be delivered to Xxxxxxxx and Champion,
respectively.
(d) Delivery Notice. An executed copy of the delivery
notice in the form attached hereto as Annex E shall be delivered to
Xxxxxxxx.
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The deliveries specified in this Section 2 shall be deemed to occur
simultaneously as part of a single transaction, and no delivery shall be deemed
to have been made until all such deliveries have been made.
3. Subsequent Closing. Each Subsequent Closing shall take
place initially via facsimile on the Subsequent Closing Date in the manner set
forth below; provided that original certificates representing Additional
Preferred Shares shall be delivered via Federal Express or another reputable
overnight carrier to Xxxxxxxx as Xxxxxxxx instructs in writing. At each
Subsequent Closing, the following deliveries shall be made:
(a) Additional Preferred Shares. Champion shall
issue and deliver to Xxxxxxxx stock certificates, each representing
five thousand (5,000) Additional Preferred Shares (except that to the
extent the number of Additional Preferred Shares to be delivered is not
evenly divisible by five thousand (5,000), one (1) stock certificate
shall represent the remaining shares), duly executed by Champion, and
shall register such shares in the shareholder register of Champion.
(b) Purchase Price. Xxxxxxxx shall cause to be
wire transferred to Champion, in accordance with the instructions set
forth in Section 20, one thousand dollars ($1,000) per Additional
Preferred Share, in the aggregate the "Additional Issuance Price" as
specified in the applicable Xxxxxxxx Notice (the "Additional Issuance
Price") payable on such Subsequent Closing Date, in immediately
available United States dollars.
(c) Closing Documents. The closing documents
required by Sections 14 and 15 shall be delivered to Xxxxxxxx and
Champion, respectively.
(d) Delivery Notice. An executed copy of the
delivery notice in the form attached hereto as Annex E shall be
delivered to Xxxxxxxx.
The deliveries specified in this Section 3 shall be deemed to occur
simultaneously as part of a single transaction, and no delivery shall be deemed
to have been made until all such deliveries have been made.
4. Representations and Warranties of Champion. Champion hereby
represents and warrants to Xxxxxxxx on each Closing Date, as follows:
(a) Champion has been duly incorporated and is
validly existing in good standing under the laws of Michigan or, after
the Initial Closing Date, if another entity has succeeded Champion in
accordance with the terms hereof, under the laws of one of the states
of the United States.
(b) The execution, delivery and performance of
this Agreement, the Certificate of Rights and Preferences and the
Warrant (including the authorization, sale, issuance and delivery of
the Investment Securities) have been duly authorized by all requisite
corporate action and no further consent or authorization of Champion,
its Board of Directors or its shareholders is required, except as
otherwise contemplated by this Agreement.
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(c) This Agreement has been duly executed and
delivered by Champion and, when this Agreement is duly authorized,
executed and delivered by Xxxxxxxx, will be a valid and binding
agreement enforceable against Champion in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity. The
issuance of the Investment Securities are not and will not be subject
to any preemptive right or rights of first refusal that have not been
properly waived or complied with.
(d) Champion has full corporate power and
authority necessary to (i) own and operate its properties and assets,
execute and deliver this Agreement, (ii) perform its obligations
hereunder and under the Certificate of Rights and Preferences and the
Warrant (including, but not limited to, the issuance of the Investment
Securities) and (iii) carry on its business as presently conducted and
as presently proposed to be conducted. Champion and its subsidiaries
are duly qualified and are authorized to do business and are in good
standing as foreign corporations in all jurisdictions in which the
nature of their activities and of their properties (both owned and
leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not have a material
adverse effect on the business affairs, assets, results of operations
or prospects of Champion and its subsidiaries, taken as a whole. Set
forth on Schedule 4(d) attached hereto, is a complete list of all
subsidiaries of Champion as of the date hereof.
(e) No consent, approval, authorization or order
of any court, governmental agency or other body is required for
execution and delivery by Champion of this Agreement or the performance
by Champion of any of its obligations hereunder and under the
Certificate of Rights and Preferences or the Warrant other than such as
may already have been received.
(f) Neither the execution and delivery by
Champion of this Agreement nor the performance by Champion of any of
its obligations hereunder and under the Certificate of Rights and
Preferences or the Warrant:
(i) violates, conflicts with, results
in a breach of, or constitutes a default (or an event which
with the giving of notice or the lapse of time or both would
be reasonably likely to constitute a default) or creates any
rights in respect of any person under (A) the certificates of
incorporation or by-laws of Champion or any of its
subsidiaries, (B) any decree, judgment, order, or
determination of any court, governmental agency or body, or
arbitrator having jurisdiction over Champion or any of its
subsidiaries or any of their respective properties or assets
or any material law, treaty, rule or regulation, (C) the terms
of any bond, debenture, note, indenture, credit agreement or
any other evidence of indebtedness, or any material agreement,
stock option or other similar plan, lease, mortgage, deed of
trust or other instrument to which Champion or any of its
subsidiaries is a party, by which Champion or any of its
subsidiaries is bound, or to which any of the properties or
assets of Champion or any of its subsidiaries is subject, (D)
the terms of any "lock-up" or similar provision of any
underwriting or similar agreement to which Champion or any of
its subsidiaries is a party, (E) any
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material rule or regulation of the NASD or the New York Stock
Exchange or any rule or regulation of the markets where
Champion's securities are publicly traded or quoted applicable
to Champion or the transactions contemplated hereby or (F) the
Rights Agreement by and between Champion and Xxxxxx Trust and
Savings Bank, dated January 9, 1996, except for such
violations, conflicts, breaches or defaults referred to in
clauses (B), (C), (D) and (E) that would not affect Champion's
ability to execute and deliver or to perform any of its
obligations under this Agreement, the Certificate of Rights
and Preferences or the Warrant; or
(ii) results in the creation or
imposition of any lien, charge or encumbrance upon any
Investment Securities or any material lien, charge or
encumbrance upon any of the properties or assets of Champion
or any of its subsidiaries.
(g) Champion has validly reserved for issuance
to Xxxxxxxx the Initial Preferred Shares, any Additional Preferred
Shares and the Warrant under this Agreement and that number of shares
of Common Stock equal to the Registrable Number (determined as if the
Required Registration Statement were filed as of the date this
representation is made). When issued to Xxxxxxxx against payment
therefor, each Investment Security:
(i) will have been duly and validly
authorized, duly and validly issued, fully paid and
non-assessable;
(ii) will be free and clear of any
security interests, liens, claims or other encumbrances; and
(iii) will not have been issued or sold
in violation of any preemptive or other similar rights of the
holders of any securities of Champion.
(h) As of the date hereof, Champion satisfies
all maintenance criteria of the New York Stock Exchange and, after the
Closing Date, Champion satisfies all maintenance criteria for the New
York Stock Exchange, Nasdaq National Market, or American Stock
Exchange, or has a valid exemption from such criteria of which it has
previously notified Xxxxxxxx in writing. To the best knowledge of
Champion, after due inquiry, no present set of facts or circumstances
will (with the passage of time or the giving of notice or both or
neither) cause any of the Common Stock to be delisted from the New York
Stock Exchange. Within five (5) Business Days after and excluding the
Initial Closing Date, all of the Covered Securities (as defined in
Section 5(b)) will, when issued, be duly listed and admitted for
trading on all of the markets where shares of Common Stock are traded,
including the New York Stock Exchange. At each Subsequent Closing Date,
all of the Covered Securities (as defined in Section 5(b)) will, when
issued, be duly listed and admitted for trading on all of the markets
where shares of Common Stock are traded, including one of the
following: (i) the New York Stock Exchange, (ii) the Nasdaq National
Market, or (iii) the American Stock Exchange.
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(i) There is no pending or, to the best
knowledge of Champion, threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over Champion or any of its affiliates
that would materially affect the execution by Champion of, or the
performance by Champion of its obligations under, this Agreement, the
Certificate of Rights and Preferences or the Warrant.
(j) Xxxxx Xxxxx 00, 0000, xxxx of Champion's
filings with the United States Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "Securities
Act") or under Section 13(a) or 15(d) of the Exchange Act (each an "SEC
Filing") contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements,
in the light of the circumstances under which they were made, not
misleading. Since March 31, 1998, there has not been any pending or, to
the best knowledge of Champion, threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over Champion or any of its affiliates
that could cause a material adverse change in the condition, financial
or otherwise, or in the business affairs, assets, results of operations
or prospects of Champion, whether or not arising in the ordinary course
of business, except as disclosed in Champion's SEC Filings on or before
the date immediately prior to and excluding the date hereof. Since the
date of Champion's most recent SEC Filing, there has not been any
material adverse change in the condition, financial or otherwise, or in
the business affairs, assets, results of operations or prospects of
Champion, whether or not arising in the ordinary course of business.
Except as set forth on Schedule 4(p) hereto, Champion's SEC Filings
made before and excluding the date hereof fully disclose all material
information concerning Champion and its subsidiaries.
(k) The offer and sale of the Investment
Securities to Xxxxxxxx pursuant to this Agreement will, subject to
compliance by Xxxxxxxx with the applicable representations and
warranties contained in Section 8 hereof and with the applicable
covenants and agreements contained in Section 12 hereof, be made in
accordance with an exemption from the registration requirements of the
Securities Act and any applicable state law. Neither Champion nor any
agent on its behalf has solicited or will solicit any offers to sell or
has offered to sell or will offer to sell all or any part of the Series
C Preferred Shares or the Warrant to any person or persons so as to
bring the sale of such Series C Preferred Shares or the Warrant by
Champion within the registration provisions of the Securities Act.
(l) Immediately prior to the Initial Closing
Date, the authorized capital stock of Champion consists of one hundred
twenty million (120,000,000) shares of Common Stock, par value one
dollar ($1.00), and five million (5,000,000) shares of preferred stock,
no par value ("Preferred Stock") of which seven hundred and fifty
thousand (750,000) are designated Series A Preferred Stock and twenty
thousand (20,000) are designated Series B-1 Preferred Stock.
Immediately prior to the Initial Closing Date, (A) forty-eight million
five hundred sixty-five thousand two hundred eight (48,565,208) shares
of Common Stock, no shares of Series A Preferred Stock and
twenty-thousand (20,000) shares of Series B-1 Preferred Stock, were
issued and outstanding, (B)
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eight million eighty-three thousand eight hundred thirty-one
(8,083,831) shares of Common Stock, seven hundred and fifty thousand
(750,000) shares of Series A Preferred Stock and twelve thousand
(12,000) shares of Series B Preferred Stock are currently reserved and
subject to issuance upon the exercise of outstanding stock options,
warrants or other convertible rights, (C) no shares of Common Stock are
held in the treasury of Champion, and (D) up to three hundred
thirty-four thousand one hundred forty-seven (334,147) additional
shares of Common Stock may be issued under the Champion Enterprises,
Inc. Savings Plan. All of the outstanding shares of Preferred Stock and
Common Stock are, and all shares of capital stock which may be issued
pursuant to stock options, warrants or other convertible rights will
be, when issued and paid for in accordance with the respective terms
thereof, duly authorized, validly issued, fully paid and
non-assessable, free of any preemptive rights in respect thereof and
issued in material compliance with all applicable state and federal
laws concerning issuance of securities. As of the date hereof, except
as set forth above, and except for shares of Common Stock or other
securities issued upon conversion, exchange, exercise or purchase
associated with the securities, options, warrants, rights and other
instruments referenced above, no shares of capital stock or other
voting securities of Champion were outstanding, no equity equivalents,
interests in the ownership or earnings of Champion or other similar
rights were outstanding, and there were no existing options, warrants,
calls, subscriptions or other rights or agreements or commitments
relating to the capital stock of Champion or any of its subsidiaries or
obligating Champion or any of its subsidiaries to issue, transfer, sell
or redeem any shares of capital stock, or other equity interest in,
Champion or any of its subsidiaries or obligating Champion or any of
its subsidiaries to grant, extend or enter into any such option,
warrant, call, subscription or other right, agreement or commitment.
Attached hereto as Schedule 4(l) is a true and correct list as of the
date of this Agreement of all outstanding options, warrants, calls,
subscriptions and other rights or agreements or commitments relating to
the issuance of additional shares of capital stock of Champion and with
respect to each a description of the number and class of securities and
the exercise price thereof.
(m) Solvency. The sum of the assets of Champion,
at a fair valuation, exceeds its liabilities. Champion has sufficient
capital with which to conduct its business as presently conducted and
as proposed to be conducted and Champion has not incurred debts, and
does not intend to incur debts, beyond its ability to pay such debts as
they mature. For purposes of this paragraph, "debt" means any liability
on a claim, and "claim" means (x) a right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured, or (y) a right to an equitable remedy for breach
of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or
unsecured.
(n) Audited Financials. Attached hereto as Annex
F is a true, correct and complete copy of (i) the report of
PricewaterhouseCoopers LLP dated February 8, 2002, together with the
accompanying consolidated financial statements and schedules of
Champion at December 29, 2001 and the results of Champion's operations
and cash flows for each of the three (3) years in the period ended
December 29, 2001, as such
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report appears in the Annual Report on Form 10-K for the fiscal year
ended December 29, 2001 filed by Champion with the SEC (the "Auditor
Report") and (ii) the written consent of PricewaterhouseCoopers LLP to
the inclusion of its report described in clause (i) herein.
(o) Equivalent Value. As of the Initial Closing
Date, the consideration that Champion is receiving from Xxxxxxxx is
equivalent in value to the consideration Xxxxxxxx is receiving from
Champion pursuant to this Agreement. As of the Initial Closing Date,
under the terms of this Agreement, Champion is receiving fair
consideration from Xxxxxxxx for the agreements, covenants,
representations and warranties made by Champion to Xxxxxxxx.
(p) No Non-Public Information. Except as set
forth on Schedule 4(p) attached hereto, Xxxxxxxx has not requested from
Champion, and Champion has not furnished to Xxxxxxxx, any material
non-public information or confidential information that may constitute
material non-public information concerning Champion or its
subsidiaries.
(q) Restatement Notices. As of each Subsequent
Closing Date, Champion has provided Xxxxxxxx with all Restatement
Notices (as defined in the Certificate of Rights and Preferences)
required to be delivered following a Restatement (as defined in the
Certificate of Rights and Preferences).
5. Registration Provisions.
(a) Champion shall at its own expense and as soon
as practicable, but in no event later than three (3) Business Days after and
excluding the earlier of (a) any Subsequent Closing Date or the date on which
Xxxxxxxx waives any of the Xxxxxxxx Rights if (i) after such date there are no
additional Xxxxxxxx Rights outstanding and unexercised by Xxxxxxxx and (ii) the
Company shall have consummated the first stage of the transaction described in
Schedule 4(p) hereto(1) or shall have decided to abandon such transaction, or
(b) the date of expiration of the Xxxxxxxx Rights Period (such earlier date to
be referred to as the "Rights Completion Date"), file a registration statement
(the "Required Registration Statement")) under the Securities Act covering the
resale of all of the Initial Common Shares (as defined below) and any Additional
Common Shares (as defined below) and shall use its best efforts to cause such
Required Registration Statement to be declared effective as soon as practicable
and in all events no later than ninety (90) calendar days following, and
including, the Rights Completion Date (the "Required Registration Date"). The
obligations to have such Required Registration Statement declared effective and
to maintain such effectiveness as provided in this Section 5 are referred to
herein as the "Registration Requirement." Champion shall register pursuant to
such Required Registration Statement not less than the number of shares of
Common Stock equal to 1.5 times the total number of Common Shares issued or
issuable for which such Required Registration Statement is filed, whether upon
exercise, conversion or redemption, within the year following the Required
Registration Date or otherwise on an as-converted basis as of such date (the
"Registrable
---------------------
(1) Schedule 4(p) shall describe the notes offering in stages. The first stage
shall be completion of the 144A placement.
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Number"). Champion shall promptly amend such Required Registration Statement
(or, if necessary, file a new registration statement (such new registration
statement to be deemed an additional "Required Registration Statement" for
purposes of this Agreement)) at any time that the number of Common Shares for
which such Required Registration Statement was filed exceeds eighty percent
(80%) of the number of shares then registered so that the Registrable Number (as
determined on such date) of shares of Common Stock shall be registered and
freely tradable. "Additional Common Shares" (and each an "Additional Common
Share") means all shares of Common Stock issued and issuable upon conversion or
redemption of or as dividends under the Additional Preferred Shares. "Initial
Common Shares" (and each an "Initial Common Share") means all Common Shares
excluding the Additional Common Shares.
(b) Each Initial Common Share and each Additional
Common Share is a "Covered Security." Champion shall provide prompt written
notice to Xxxxxxxx when any Required Registration Statement has been declared
effective by the SEC.
(c) Champion will use its best efforts to: (A) keep
the Required Registration Statement effective until the earlier of (x) the later
of (i) the second anniversary of the date of expiration of the Xxxxxxxx Rights
Period, or (ii) such time as all of the Covered Securities issued or issuable to
Xxxxxxxx can be sold by Xxxxxxxx or any of its affiliates within a three
(3)-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144 under the Securities Act ("Rule 144") or (y)
the date all of the Covered Securities issued or issuable shall have been sold
by Xxxxxxxx (such later period, the "Registration Period"); (B) prepare and file
with the SEC such amendments and supplements to the Required Registration
Statement and the prospectus used in connection with the Required Registration
Statement (as so amended and supplemented from time to time, the "Prospectus")
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Covered Securities by Xxxxxxxx or any of its
affiliates; (C) furnish such number of Prospectuses and other documents incident
thereto, including any amendment of or supplement to such Prospectus, as
Xxxxxxxx from time to time may reasonably request; (D) cause all Covered
Securities to be listed on each securities exchange and quoted on each quotation
service on which similar securities issued by Champion are then listed or
quoted; (E) provide a transfer agent and registrar for all Covered Securities
and a CUSIP number for all Covered Securities; (F) otherwise comply with all
applicable rules and regulations of the SEC, the New York Stock Exchange and any
other exchange or quotation service on which the Covered Securities are
obligated to be listed or quoted under this Agreement; and (G) file the
documents required of Champion and otherwise obtain and maintain requisite blue
sky clearance in (x) New York and all other jurisdictions in which any of the
shares of Common Stock were originally sold and (y) all other states specified
in writing by Xxxxxxxx, provided, however, that as to this clause (y), Champion
shall not be required to qualify to do business or consent to service of process
in any state in which it is not now so qualified or has not so consented.
Xxxxxxxx shall have the right to approve the description of the selling
shareholder, plan of distribution and all other references to Xxxxxxxx contained
in the Required Registration Statement and Prospectus.
(d) Champion shall furnish to Xxxxxxxx upon request a
reasonable number of copies of a supplement to or an amendment of the Prospectus
as may be necessary in order to facilitate the public sale or other disposition
of all or any of the Covered Securities by Xxxxxxxx or any of its affiliates
pursuant to the Required Registration Statement.
10
(e) With a view to making available to Xxxxxxxx and
its affiliates the benefits of Rule 144 and Form S-3 under the Securities Act,
Champion covenants and agrees to: (A) make and keep available adequate current
public information (within the meaning of Rule 144(c)) concerning Champion,
until the earlier of (x) the second (2nd) anniversary of the date of expiration
of the Xxxxxxxx Rights Period or (y) such date as all of the Covered Securities
shall have been resold by Xxxxxxxx or any of its affiliates; and (B) furnish to
Xxxxxxxx upon request, as long as Xxxxxxxx owns any Covered Securities, (x) a
written statement by Champion that it has complied with the reporting
requirements of the Securities Act and the Exchange Act, (y) a copy of the most
recent annual or quarterly report of Champion, and (z) such other information as
may be reasonably requested in order to avail Xxxxxxxx and its affiliates of
Rule 144 or Form S-3 with respect to such Covered Securities.
(f) Notwithstanding anything else in this Section 5,
if, at any time during which a Prospectus is required to be delivered in
connection with the sale of any Covered Security, Champion determines in good
faith that a development has occurred or a condition exists as a result of which
the Required Registration Statement or Prospectus contains a material
misstatement or omission, or that a material transaction in which Champion is
engaged or proposes to engage would require an amendment to the Required
Registration Statement, a supplement to such Prospectus, or a filing under the
Exchange Act or other public disclosure of material information and the
disclosure of such transaction would be premature or injurious to the
consummation of the transaction, Champion will immediately notify Xxxxxxxx
thereof by telephone and in writing. Upon receipt of such notification, Xxxxxxxx
and its affiliates will immediately suspend all offers and sales of any Covered
Security pursuant to such Required Registration Statement. In such event,
Champion will amend or supplement such Required Registration Statement and
Prospectus or make such filings or public disclosures as promptly as practicable
and will use its best efforts to take such other steps as may be required to
permit sales of all Covered Securities thereunder by Xxxxxxxx and its affiliates
in accordance with applicable federal and state securities laws. Champion will
promptly notify Xxxxxxxx after it has determined in good faith that such sales
have become permissible in such manner and will promptly deliver copies of the
Required Registration Statement and Prospectus (as so amended or supplemented,
if applicable) to Xxxxxxxx in accordance with paragraphs (c) and (d) of this
Section 5. Notwithstanding the foregoing, (A) under no circumstances shall
Champion be entitled to exercise its right to suspend sales of any Covered
Securities as provided in this Section 5(f) and Section 5(f) of the Prior
Agreement and pursuant to the Required Registration Statement for more than a
total of sixty (60) days in any twelve (12)-month period, (B) the period during
which such sales may be suspended (each a "Blackout Period") at any time shall
not exceed thirty (30) days, and (C) no Blackout Period may commence less than
thirty (30) days after the end of (i) the preceding Blackout Period or (ii) the
preceding Blackout Period (as that term is defined in the Prior Agreement).
(g) Upon the commencement of a Blackout Period
pursuant to this Section 5, Xxxxxxxx will notify Champion of any contract to
sell, assign, deliver or otherwise transfer any Covered Security (each a "Sales
Contract") that Xxxxxxxx or any of its affiliates has entered into prior to the
commencement of such Blackout Period and that would require delivery of such
Covered Securities during such Blackout Period, which notice will contain the
aggregate sale price and volume of Covered Securities pursuant to such Sales
Contract. Upon receipt of such notice, Champion will immediately notify Xxxxxxxx
of its election either (i) to terminate the
11
Blackout Period and, as promptly as practicable, amend or supplement the
Required Registration Statement or Prospectus in order to correct the material
misstatement or omission and deliver to Xxxxxxxx copies of such amended or
supplemented Required Registration Statement and such Prospectus in accordance
with paragraphs (c) and (d) of this Section 5, or (ii) to continue the Blackout
Period in accordance with this paragraph. If Champion elects to continue the
Blackout Period (and, in any case, if a Blackout Period continues), and Xxxxxxxx
or any of its affiliates are therefore unable to consummate the sale of Covered
Securities pursuant to the Sales Contract, Champion will promptly indemnify each
Xxxxxxxx Indemnified Party (as such term is defined in Section 18(a) below)
against any Proceeding (as such term is defined in Section 18(a) below) that
each Xxxxxxxx Indemnified Party may incur arising out of or in connection with
Xxxxxxxx'x breach or alleged breach of any such Sales Contract, and Champion
shall reimburse each Xxxxxxxx Indemnified Party for any reasonable costs or
expenses (including reasonable legal fees) incurred by such party in
investigating or defending any such Proceeding.
(h) In addition to any other remedies available to
Xxxxxxxx under this Agreement or at law or equity, if the Required Registration
Statement has not been declared effective by the Required Registration Date or
the Required Registration Statement is not available with respect to all Covered
Securities at any time on or after the Required Registration Date (except during
a Blackout Period permitted under Section 5(f)), then the Conversion Price (as
defined in the Certificate of Rights and Preferences) and the Warrant Price (as
defined in the Warrant) shall be permanently decreased by one fifteenth of one
percent (1/15 of 1%) for each day, compounded monthly, that the Required
Registration Statement is not available with respect to all Covered Securities
(except during a Blackout Period permitted under Section 5(f)).
6. "Market Stand-Off" Agreement. If requested by Champion and
an underwriter in a firm commitment underwritten public offering of Common Stock
with net proceeds of at least twenty-five million dollars ($25,000,000) to
Champion, after underwriter's discounts or commissions and other fees or
expenses, Xxxxxxxx shall not sell any Common Stock (other than Common Stock
included in the registration) during the ninety (90) day period (or such shorter
period, if so notified by Champion in writing) following the effective date of a
registration statement of Champion filed under the Securities Act, provided
that:
(a) such agreement shall only apply to registration
statements of Champion including securities to be sold on its behalf to the
public in an underwritten offering where the effective date of any such
registration statement shall not occur before the first anniversary of the
effective date of the immediately prior registration statement with respect to
which Xxxxxxxx was required to provide such agreement;
(b) all officers and directors of Champion and all
purchasers or subsequent holders of Offered Shares (other than subsequent
holders who acquire such securities through bona fide purchases in the public
market) are bound by and have entered into similar agreements; and
(c) Champion shall (and shall cause such underwriter
to) use best efforts to cause such stand-off period not to exist or, if it does
exist, to terminate at the earliest practicable date.
12
The obligations described in this Section 6 shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a registration relating solely
to a transaction on Form S-4 or similar forms that may be promulgated in the
future. Nothing in this Section 6 shall be deemed to limit Xxxxxxxx'x right to
engage in assignments, pledges, hypothecations and non-sale transfers of Common
Stock (including, but not limited to, in connection with financing or hedging
transactions) and to deliver Common Stock in connection with such transactions.
This Section 6 supersedes Section 6 of the Prior Agreement.
7. Conversion and Redemption of Preferred Shares.
(a) Preferred Shares and Additional Preferred
Shares are convertible and redeemable into Common Shares in accordance
with the terms and conditions set forth in Section 6 of the Certificate
of Rights and Preferences. The form of the "Preferred Stock Conversion
Notice" to be executed and delivered by Xxxxxxxx to Champion as
specified therein is attached hereto as Annex G and the form of the
"Preferred Stock Conversion Delivery Notice" to be executed and
delivered by Champion to Xxxxxxxx as specified therein is attached
hereto as Annex H.
(b) If the number of Common Shares issued and
issuable under this Agreement (including, but not limited to, all
Common Shares issued or issuable upon conversion or redemption
(notwithstanding any limitations on redemption on any date) of Series C
Preferred Shares issued or issuable under this Agreement and the
Warrant) on the date of any Preferred Stock Conversion Notice,
Redemption Notice or Warrant Notice Date (as defined in the Warrant)
(each a "Xxxxxxxx Notice Date") would result in Xxxxxxxx receiving more
than seventeen and one-half percent (17.5%) of the shares of Common
Stock outstanding as of the date of this Agreement (the "Original
Number") and Xxxxxxxx'x receipt of twenty percent (20%) or more of the
Original Number would require the approval (the "Required Consent") of
the holders of Common Stock pursuant to the listing requirements or
rules of the NYSE, Champion (A) shall not issue Common Shares (the
"Issuance Blockage") to the extent that the total number of Common
Shares issued hereunder would exceed nineteen and ninety-nine
one-hundredths percent (19.99%) of the Original Number, (B) shall
notify Champion's shareholders of a shareholder meeting for the purpose
of voting on the Required Consent within twenty (20) Business Days from
and including the Xxxxxxxx Notice Date, which meeting shall be held on
or before the sixtieth (60th) calendar day after the Xxxxxxxx Notice
Date, and (C) shall otherwise use its best efforts to obtain, on or
before the sixtieth (60th) day after the Xxxxxxxx Notice Date, the
Required Consent for the issuance of all Common Shares issued or
issuable under this Agreement (including, but not limited to, all
Common Shares issued or issuable upon conversion or redemption of
Series C Preferred Shares issued or issuable under this Agreement or
upon exercise of the Warrant) including, but not limited to,
recommending to Champion's shareholders that such shareholders give the
Required Consent and not withdrawing such recommendation.
Notwithstanding anything else in this paragraph, if at any time before
the Required Consent has been obtained, or if Champion otherwise does
not have sufficient authorized shares to fulfill its obligation, (i)
Xxxxxxxx shall have the right to convert and redeem (subject to any
restrictions on redemption) Series C Preferred Shares and exercise the
Warrant, the conversion,
13
redemption or exercise of which would not cause the total number of
shares issued hereunder and under the Warrant to exceed nineteen and
ninety-nine one-hundredths percent (19.99%) of the Original Number (or
up to the total number of available authorized shares, if less) into
Common Stock and (ii) Xxxxxxxx shall have the right to convert and
redeem up to that amount of the Series C Preferred Shares and exercise
the Warrant (regardless of any remaining time period that must pass
before redemption may occur under the Certificate of Rights and
Preferences), the conversion, redemption or exercise of which would
cause the total number of shares issued hereunder to exceed nineteen
and ninety-nine one-hundredths percent (19.99%) of the Original Number
or that number which is unavailable for issuance, as the case may be,
into the rights described herein (the "Excess Rights"). Xxxxxxxx shall
exercise such right to obtain Excess Rights by delivering one or more
written notices in the form attached hereto as Annex I (an "Excess
Rights Notice") to Champion from time to time. The stated value of the
Excess Rights shall be an amount equal to the product of (A) the
Average Price on the Excess Notice Date multiplied by (B) the number of
Common Shares that would be issuable in respect of such conversion but
for the Issuance Blockage (without regard to any requirement to deliver
a 65 Day Notice). At any time on or after the date of the first Excess
Rights Notice, Xxxxxxxx may, at its sole option, convert its Excess
Rights into a new series of Additional Preferred Shares. "Average
Price" means (A) the daily volume weighted average price on the NYSE
or, if no such sale takes place on such date, the average of the
closing bid and asked prices on the NYSE thereof on such date, in each
case as reported by Bloomberg, L.P. (or by such other entity as
Xxxxxxxx and Champion may agree), or (B) if such Common Stock is not
then listed or admitted to trading on the NYSE, the higher of (1) the
book value per share thereof as determined by any firm of independent
public accountants of recognized standing selected by the Board of
Directors of Champion as of the last day of any month ending within
sixty (60) days preceding the date as of which the determination is to
be made and (2) the fair value per share thereof determined in good
faith by the Board of Directors of Champion of a date which is within
ten (10) days of the date as of which the determination is to be made.
Although it is the intent and view of the parties to this Agreement
that the transactions contemplated in this Agreement are to be treated
as independent of the transactions contemplated under the Prior
Agreement, in the event such transactions are deemed to be related
transactions pursuant to the listing requirements and rules of the NYSE
by the NYSE, the provisions of this Section 7(b) and of Section 7(b) of
the Prior Agreement (including, but not limited to, the obligation to
obtain the Required Consent) shall be deemed to apply to the number of
Common Shares in the aggregate issued and issuable pursuant to the
Prior Agreement and this Agreement.
(c) The aggregate number of Common Shares
issuable upon conversion or redemption of the Series B Preferred
Shares, the Series C Preferred Shares and exercise of the Warrant, when
combined with all shares of Common Stock then beneficially owned (as
determined pursuant to Exchange Act Rule 13d-3) by Xxxxxxxx, shall not
exceed the Maximum Number of shares of Common Stock. The "Maximum
Number" equals the sum of 4,720,000 plus the Exercisable Number. The
"Exercisable Number" is initially zero (0) and thereafter may be
increased upon expiration of a sixty-five (65) day period (the "Notice
Period") after Xxxxxxxx delivers a notice (a "65 Day Notice") to
Champion designating an aggregate number of Common Shares in excess of
14
the Maximum Number which shall be issuable upon conversion or
redemption of the Series B Preferred Stock and the Series C Preferred
Shares and exercise of the Warrant. A 65 Day Notice may be given at any
time. From time to time following the Notice Period, Common Stock may
be issued to Xxxxxxxx on any Business Day for any quantity of Common
Stock, such that the aggregate number of shares of Common Stock issued
hereunder is less than or equal to the Maximum Number. Nothing in this
Section 6(c) shall limit or apply to the creation or conversion of
Excess Rights under Section 6(b) hereunder or under the Prior
Agreement. This Section 7(c) amends and supersedes Section 7(c) of the
Prior Agreement.
8. Representations and Warranties of Xxxxxxxx. Xxxxxxxx hereby
represents and warrants to Champion on each Closing Date:
(a) Xxxxxxxx has been duly incorporated and is
validly existing under the laws of Bermuda.
(b) The execution, delivery and performance of
this Agreement by Xxxxxxxx have been duly authorized by all requisite
corporate action and no further consent or authorization of Xxxxxxxx,
its Board of Directors or its shareholders is required. This Agreement
has been duly executed and delivered by Xxxxxxxx and, when duly
authorized, executed and delivered by Champion, will be a valid and
binding agreement enforceable against Xxxxxxxx in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity.
(c) Xxxxxxxx understands that no United States
federal or state agency has passed on, reviewed or made any
recommendation or endorsement of the Investment Securities.
(d) Xxxxxxxx is an "accredited investor" as such
term is defined in Regulation D promulgated under the Securities Act.
(e) Xxxxxxxx is purchasing the Investment
Securities for its own account for investment only and not with a view
to, or for resale in connection with, the public sale or distribution
thereof in the United States, except pursuant to sales registered under
the Securities Act or an exemption therefrom.
(f) Xxxxxxxx understands that the Investment
Securities are being or will be offered and sold to it in reliance on
specific exemptions from the registration requirements of United States
federal securities laws and that Champion is relying on the truth and
accuracy of, and Xxxxxxxx'x compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Xxxxxxxx
set forth herein in order to determine the availability of such
exemptions and the eligibility of Xxxxxxxx to acquire the Investment
Securities.
(g) Xxxxxxxx has had access to documents
publicly filed with the SEC by Champion, and has been given a
reasonable opportunity to ask questions of Champion's officers
regarding publicly available information concerning Champion.
15
(h) Xxxxxxxx hereby waives its right of first
offer contained in Section 9 of the Prior Agreement with respect to the
transactions contemplated by this Agreement.
9. Right of First Offer. Subject to the terms and conditions
specified in this Section 9, Champion hereby grants to (i) Xxxxxxxx or (ii) any
affiliate or wholly-owned subsidiary of Xxxxxxxx (collectively, the "First Offer
Shareholders"), a right of first offer with respect to future sales by Champion
of its Offered Shares (as hereinafter defined). The term "Offered Shares" means
any shares of, or securities convertible into or exercisable or exchangeable for
any shares of, any class of its capital stock where the aggregate number of
shares or price per share of such capital stock issuable at closing, or upon
conversion, redemption exercise, exchange or otherwise, cannot be determined as
of the date such agreement is entered into or is subject to change as of any
date for any reason other than stock splits, recombinations, stock dividends or
the like. Each time Champion has a bona fide intention to offer to sell to a
third party any Offered Shares, Champion shall first negotiate with the First
Offer Shareholders to sell such Offered Shares in accordance with the following
provisions:
(a) Champion shall deliver a notice in
accordance with Section 20 of this Agreement ("Offer Notice") to
Xxxxxxxx stating (i) its bona fide intention to offer such Offered
Shares, (ii) the number of such Offered Shares proposed to be offered
and (iii) the price and terms upon which it proposes to offer such
Offered Shares.
(b) For three (3) Business Days after delivery
of the Offer Notice, Champion shall negotiate exclusively and in good
faith with the First Offer Shareholders with respect to the proposed
sale of Offered Shares and Champion shall not enter into or continue
negotiations with, respond to, furnish information to, or consummate
any transaction with any person or entity concerning any transaction
regarding any shares of, or securities convertible into or exercisable
or exchangeable for any shares of, any class of its capital stock.
(c) Within three (3) Business Days after
delivery of the Offer Notice, the First Offer Shareholders may elect by
delivering a written notice to Champion, to purchase or obtain, at the
price and on the terms specified in the Offer Notice (or on terms that
are substantially similar to, or more favorable to Champion than, the
terms contained in the Offer Notice), all but not less than all of the
Offered Shares; provided, that Champion shall use commercially
reasonable efforts to cause the First Offer Shareholders to be able to
participate in the purchase of the Offered Shares to the extent the
First Offer Shareholders desire to do so. If the Offer Notice specifies
consideration other than cash is to be paid for the Offered Shares, the
First Offer Shareholders may, at their sole option, (if they choose to
purchase such Offered Shares) deliver either of (i) such consideration
or (ii) cash equal to the fair market value of such consideration on
the date and at the time such offer is accepted. The closing of any
such transaction shall occur not later than twenty (20) Business Days
after Champion receives written notice of such election. If the First
Offer Shareholders do not so elect within three (3) days after delivery
of the Offer Notice or if Champion and the First Offer Shareholders are
unable to reach agreement on the terms of a sale of the Offered Shares
to the First Offer Shareholders, then Champion may sell the Offered
Shares to any Person at the price and
16
on terms that are no less favorable to Champion than the terms
contained in the Offer Notice within ninety (90) days after the date of
the Offer Notice.
(d) The right of first offer in this Section 9
shall not be applicable to any issuance or sale of the following
securities:
(i) Common Stock issued as
consideration for the acquisition of at least fifty percent
(50%) of the voting capital stock or assets of a bona fide
operating company in a similar or complementary line of
business to that of Champion, as determined reasonably and in
good faith by Champion's Board of Directors whether through
purchase, merger, consolidation, tender offer or otherwise,
provided that the purpose of Champion entering into any such
transaction shall not be to raise capital, directly or
indirectly, or otherwise to avoid the requirements of this
Section 9;
(ii) Common Stock issued pursuant to any
stock split, dividend or distribution payable in additional
shares of Common Stock or other securities or rights
convertible into, or entitling the holder thereof to receive
directly or indirectly, additional shares of Common Stock
without payment of any consideration by such holder;
(iii) Common Stock issuable or issued to
employees, consultants or directors of Champion directly or
pursuant to a stock option plan, employee stock purchase plan
or restricted stock plan, or other similar arrangements
related to compensation for services in effect on the date of
this Agreement or approved by Champion's shareholders, in each
case in the ordinary course of business consistent with
Champion's past practice;
(iv) Common Stock issued as dividends
on, or upon conversion or redemption of, Champion's Series A
Preferred Stock outstanding as of the date of this Agreement
and the Series B Preferred Shares and the Series C Preferred
Shares, or Common Stock issued upon exercise of the Warrant;
(v) Securities qualifying as "Excluded
Securities" as defined in the Warrant based upon satisfaction
of the provisions contained in the entirety of Section 12.9(d)
of the Warrant; or
(vi) Common Stock issued in a bona fide
firm commitment underwritten offering to the public with net
proceeds of at least twenty-five million dollars ($25,000,000)
to Champion, after underwriter's discounts or commissions and
other fees or expenses.
This Section 9(d) amends and supersedes Section 9(d) of the
Prior Agreement.
(e) Notwithstanding the provisions of this
Section 9, the right of first offer hereunder shall apply only during
those periods from time to time when Xxxxxxxx, together with its
affiliates and wholly-owned subsidiaries, owns Series C Preferred
Shares or Series B Preferred Shares (i) convertible or redeemable
(without regard to any
17
65 Day Notice requirement, Issuance Blockage or passage of time
required until the redemption rights vest) in the aggregate into a
number of Common Shares and Prior Common Shares that exceeds three and
one-half percent (3.5%) of the Original Number or (ii) with an
aggregate Redemption Amount of at least fifteen million dollars
($15,000,000).
10. Covenants of Champion. Champion covenants and agrees with
Xxxxxxxx as follows:
(a) For so long as Xxxxxxxx owns or has the
right to purchase any Series C Preferred Shares or holds the Warrant,
and for a period of one (1) year thereafter, Champion will (i) maintain
the eligibility of the Common Stock for listing on the New York Stock
Exchange, Nasdaq National Market, or American Stock Exchange and (ii)
regain the eligibility of the Common Stock for listing or quotation on
all markets and exchanges including the New York Stock Exchange, Nasdaq
National Market, or American Stock Exchange, in the event that the
Common Stock is delisted by the New York Stock Exchange or any other
applicable market or exchange; and will use commercially reasonable
efforts to (iii) cause the representations and warranties contained in
Section 4 to be and remain true and correct.
(b) Champion will provide Xxxxxxxx with an
opportunity, which shall not be less than one (1) full Business Day to
review and comment on any public disclosure by Champion of information
regarding this Agreement and the transactions contemplated hereby,
prior to such public disclosure. Beginning on the date hereof and for
so long as Xxxxxxxx owns or has the right to purchase any Series C
Preferred Shares or holds the Warrant and for a period of ninety (90)
days thereafter, Champion will promptly notify Xxxxxxxx immediately
following any press release or other information disseminated to any
shareholder, analyst, or media source.
(c) As soon as such information is available
(but in no event later than two (2) weeks after the Closing Date),
Champion shall deliver to Xxxxxxxx a written notice stating the number
of outstanding shares of Common Stock as of the Initial Closing Date.
(d) Champion will make all filings required by
law with respect to the transactions contemplated hereby.
(e) Champion will comply with the terms and
conditions of the Warrant and the Series C Preferred Shares as set
forth in the Certificate of Rights and Preferences and will not amend
the Certificate of Rights and Preferences without the required consent
of the holders of Series C Preferred Shares and will not amend the
Warrant without the consent of the registered holder of the Warrant.
(f) For so long as Xxxxxxxx holds any Series C
Preferred Shares or the Warrant, prior to the filing of each of its
quarterly reports on Form 10-Q with the SEC, Champion shall deliver to
Xxxxxxxx a review report relating to the final consolidated unaudited
financial statements contained therein, prepared by
PricewaterhouseCoopers LLP in accordance with Statements of Auditing
Standard No. 71. For so long as Xxxxxxxx
18
(i) no longer holds any Series B Preferred Shares or Xxxxxxxx Rights
(as defined in the Prior Agreement) and (ii) holds any Series C
Preferred Shares or the Warrant, Xxxxxxxx shall pay for one-half (1/2)
of the cost of the two (2) such quarterly reviews for the quarters
ending March 31 and September 30 of each year for up to an aggregate
maximum of $50,000; provided, however, that Champion shall pay all
other amounts payable for such reports and the full amount payable for
the quarter ending June 30 of each year.
(g) Champion shall use commercially reasonable
efforts to cause the Common Shares to be eligible for book-entry
transfer through The Depository Trust Company (or any successor
thereto) as soon as practicable after the date of this Agreement and
thereafter to use commercially reasonable efforts to maintain such
eligibility.
(h) Champion shall at all times reserve for
issuance such number of its shares of Common Stock as shall from time
to time be sufficient to effect (i) the conversion of all such Series C
Preferred Shares and to satisfy its delivery obligation upon such
conversion and to effect the redemption of the Series C Preferred
Shares and (ii) full exercise of the Warrant.
(i) Champion shall deliver a notice (an
"Increase Notice") stating the increase, if any, in the aggregate
number of shares of Common Stock outstanding as of the last day of the
preceding month over the number outstanding as of the last day of the
second preceding month, or in the case of the last day of the month
immediately following the Initial Closing Date, the number of shares
outstanding specified in Section 4(l). Unless expressly waived by
Xxxxxxxx, Champion shall deliver an Increase Notice to Xxxxxxxx on or
before the tenth (10th) day of every calendar month from and including
the Initial Closing Date.
(j) Champion shall, within one (1) Business Day
after and excluding each Closing Date publicly distribute a press
release disclosing the material terms of such Closing and shall, within
three (3) Business Days after and excluding each Closing Date file a
report with the SEC on Form 8-K with respect to the same.
11. Consolidation, Merger, Etc. In case Champion shall be
a party to any Business Combination (as defined in the Certificate of Rights and
Preferences), Xxxxxxxx and its assigns shall have the rights set forth in the
Certificate of Rights and Preferences and the Warrant regarding Business
Combinations in addition to the rights contained in this Agreement. "Acquirer"
means, in connection with any Business Combination, the continuing or surviving
corporation of a consolidation or merger with Champion (if other than Champion),
the transferee of all or substantially all of the properties or assets of the
Company, the corporation consolidating with or merging into Champion in a
consolidation or merger in connection with which Common Stock is changed into or
exchanged for stock or other securities of any other person or cash or any other
property, or, in the case of a capital reorganization or reclassification,
Champion. Champion agrees that it will not enter into an agreement with an
Acquirer for a Business Combination unless such agreement expressly obligates
the Acquirer to assume all of Champion's obligations under this Agreement, the
Certificate of Rights and Preferences and the
19
Warrant including, but not limited to, the dividend, liquidation, conversion,
exercise, redemption, voting and other provisions regarding the Series C
Preferred Stock, the Warrant and the Xxxxxxxx Rights contained herein and
therein. Without limiting the foregoing, all unexercised and unexpired Xxxxxxxx
Rights shall automatically be converted into equivalent rights with respect to
the Acquirer including, but not limited to, the right to receive the equivalent
of the Additional Preferred Shares issuable upon the exercise of such rights and
to receive the consideration for such Additional Preferred Shares set forth in
Section 6(F) of the Certificate of Rights and Preferences; provided that if the
Company delivers to Xxxxxxxx a written notice in the form attached as Annex K
hereto stating its election to redeem the Xxxxxxxx Rights no later than the
fifteenth (15th) calendar day after and excluding the date on which the proposed
Business Combination is first publicly disclosed and no later than the fifteenth
(15th) calendar day before and excluding the closing date of such Business
Combination, then upon such closing date, any Xxxxxxxx Rights that remain
unexercised as of such closing date shall be redeemed and Champion shall pay to
Xxxxxxxx (or shall cause Acquirer to pay to Xxxxxxxx) on or before such closing
date cash equal to the product of (i) the aggregate amount of such Xxxxxxxx
Rights multiplied by (ii) the Merger Payment Percentage (as defined in the
Certificate of Rights and Preferences). On or before the date an agreement is
entered into with an Acquirer for a Business Combination, the Company shall
deliver to Xxxxxxxx written notice that the Acquirer has assumed such
obligations. Provided that Champion is in compliance with this Section 11,
Section 3 of the Warrant and Section 6(F) of the Certificate of Rights and
Preferences, Xxxxxxxx and other holders of Series C Preferred Shares shall vote
their Series C Preferred Shares in favor of any Business Combination upon which,
in accordance with applicable law or the Certificate of Rights and Preferences,
Xxxxxxxx or such holders shall have the right to vote as a single class not
aggregated with holders of the Common Stock; provided, however, that the
Business Combination agreements must provide (A) either for (i) such rights,
preferences and privileges for the Series C Preferred Shares pursuant to the
provisions of this Agreement and the Certificate of Rights and Preferences or
(ii) the redemption of any unexercised and unexpired Xxxxxxxx Rights as provided
in this Section 11, and the payment in exchange for the Series C Preferred
Shares pursuant to a Business Combination Restriction Notice under Section 6(F)
of the Certificate of Rights and Preferences and (B) such rights, preferences
and privileges for the Warrant as set forth in the Warrant and this Agreement.
Notwithstanding the foregoing, this Section 11 shall not be construed to
obligate Xxxxxxxx or its assigns to vote their Common Shares in favor of any
Business Combination.
12. Covenants of Xxxxxxxx. Xxxxxxxx hereby covenants and agrees
with Champion that:
(a) Neither Xxxxxxxx, nor any of its affiliates,
will at any time offer or sell any Investment Securities other than
pursuant to registration under the Securities Act or pursuant to an
available exemption therefrom.
(b) Neither Xxxxxxxx, nor any of its affiliates,
shall engage an underwriter for an underwritten public offering of
Common Shares, unless such underwriter shall be reasonably satisfactory
to Champion.
20
(c) Neither Xxxxxxxx, nor any of its affiliates,
shall engage in short sales of securities issued by Champion. This
Section 12(c) supersedes Section 12(c) of the Prior Agreement.
(d) Xxxxxxxx, in its capacity as sole holder of
all of the shares of Series B-1 Preferred Stock outstanding, hereby
consents (1) to the amendment and restatement of the Certificate of
Rights and Preferences of Series B-1 Cumulative Convertible Preferred
Stock of the Company in accordance with the terms hereof and (2) to the
issuance of the Series C Preferred Shares and the Warrant in accordance
with the terms hereof.
13. Legend. Subject to Section 5, Xxxxxxxx understands that the
certificates or other instruments representing the Investment
Securities shall bear a restrictive legend in the following form (and a
stop transfer order may be placed against transfer of such certificates
or other instruments):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT COVERING SUCH SECURITIES, OR (2) THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 OR (3) THE SALE IS MADE IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION UNDER THE SECURITIES ACT AND THE COMPANY
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,
TRANSFER OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT.
The legend set forth above shall be removed and Champion shall
issue a certificate without such legend to any holder of Investment Securities
if, unless otherwise required by state securities laws, (a) such shares are sold
pursuant to Rule 144 or an effective Registration Statement under the Securities
Act, or (b) such holder provides Champion with an opinion of counsel reasonably
satisfactory to Champion that such shares may be publicly sold pursuant to an
exemption from such registration requirements without restriction.
14. Conditions Precedent to Xxxxxxxx'x Obligations. The
obligations of Xxxxxxxx hereunder are subject to the performance by Champion of
its obligations hereunder and to the satisfaction of the following additional
conditions precedent, unless expressly waived in writing by Xxxxxxxx:
(a) On each Closing Date, (i) the
representations and warranties made by Champion in this Agreement shall
be true and correct, except those representations and warranties which
address matters only as of a particular date, which shall be true and
correct as of such date; (ii) Champion shall have complied fully with
all of the covenants
21
and agreements in this Agreement; and (iii) Xxxxxxxx shall have
received (A) on the Initial Closing Date a certificate of the Chief
Financial Officer of Champion dated such date and to such effect and
(B) on each Subsequent Closing Date a certificate of the Chief
Executive Officer and the Chief Financial Officer of Champion dated
such date and to such effect.
(b) On each Closing Date, Champion shall have
delivered to Xxxxxxxx an opinion of Xxxxxx Xxxxxxx PLLC reasonably
satisfactory to Xxxxxxxx, dated the date of delivery, confirming in
substance the matters covered in paragraphs (a), (b), (c), (d), (e),
(f) and subsection (i) of (g) of Section 4 hereof and to the effect
that the offer and sale of the Investment Securities to Xxxxxxxx
hereunder do not require registration under the Securities Act.
(c) On the Initial Closing Date, Xxxxxxxx shall
have received a letter from PricewaterhouseCoopers LLP to the effect
that, as of such date, it consents to the inclusion in this Agreement
of the Auditor Report. On each Subsequent Closing Date, Xxxxxxxx shall
receive a report of PricewaterhouseCoopers LLP, together with the
accompanying consolidated financial statement and schedules of Champion
and results of Champion's operations and cash flows, as such report
appears in the most recent Form 10-K filed by Champion with the SEC.
15. Conditions Precedent to Champion's Obligations. The
obligations of Champion hereunder are subject to the performance by Xxxxxxxx of
its obligations hereunder and to the satisfaction (unless expressly waived in
writing by Champion) of the additional conditions precedent that, on each
Closing Date: (i) the representations and warranties made by Xxxxxxxx in this
Agreement shall be true and correct; (ii) Xxxxxxxx shall have complied fully
with all the covenants and agreements in this Agreement; and (iii) Champion
shall have received on each such date a certificate of an appropriate officer of
Xxxxxxxx dated such date and to such effect.
16. Fees and Expenses. Each of Xxxxxxxx and Champion agrees to
pay its own expenses incident to the performance of its obligations hereunder,
including, but not limited to the fees, expenses and disbursements of such
party's counsel, except as is otherwise expressly provided in this Agreement.
17. Non-Performance.
(a) If Champion, at any time, shall fail to
deliver the Investment Securities to Xxxxxxxx required to be delivered
pursuant to this Agreement, in accordance with the terms and conditions
of this Agreement, for any reason other than the failure of any
condition precedent to Champion's obligations hereunder or the failure
by Xxxxxxxx to comply with its obligations hereunder, then Champion
shall:
(i) indemnify and hold Xxxxxxxx
harmless against any loss, claim or damage (including without
limitation, incidental and consequential damages) arising from
or as a result of such failure by Champion; and
(ii) reimburse Xxxxxxxx for all of its
reasonable out-of-pocket expenses, including fees and
disbursements of its counsel, incurred by
22
Xxxxxxxx in connection with this Agreement and the
transactions contemplated herein and therein.
(b) If Xxxxxxxx, at any time, shall fail to make
the payments to Champion required to be delivered pursuant to this
Agreement, in accordance with the terms and conditions of this
Agreement, for any reason other than the failure of any condition
precedent to Xxxxxxxx'x obligations hereunder or the failure by
Champion to comply with its obligations hereunder, then Xxxxxxxx shall:
(i) indemnify and hold Champion
harmless against any loss, claim or damage (including without
limitation, incidental and consequential damages) arising from
or as a result of such failure by Xxxxxxxx; and
(ii) reimburse Champion for all of its
reasonable out-of-pocket expenses, including fees and
disbursements of its counsel, incurred by Champion in
connection with this Agreement and the transactions
contemplated herein and therein.
18. Indemnification.
(a) Indemnification of Xxxxxxxx. Champion hereby
agrees to indemnify Xxxxxxxx and each of its officers, directors,
employees, agents and affiliates and each person that controls (within
the meaning of Section 20 of the Exchange Act) any of the foregoing
persons (each a "Xxxxxxxx Indemnified Party") against any claim,
demand, action, liability, damages, loss, cost or expense (including,
without limitation, reasonable legal fees and expenses) (a
"Proceeding"), that it may incur in connection with any of the
transactions contemplated hereby arising out of or based upon:
(i) any untrue or alleged untrue
statement of a material fact in a SEC Filing by Champion or
any of its affiliates or any person acting on its or their
behalf or omission or alleged omission to state therein any
material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not
misleading by Champion or any of its affiliates or any person
acting on its or their behalf;
(ii) any of the representations or
warranties made by Champion herein being untrue or incorrect
at the time such representation or warranty was made; and
(iii) any breach or non-performance by
Champion of any of its covenants, agreements or obligations
under this Agreement, the Certificate of Rights and
Preferences or the Warrant;
and Champion hereby agrees to reimburse each Xxxxxxxx Indemnified Party for any
reasonable legal or other expenses incurred by such Xxxxxxxx Indemnified Party
in investigating or defending any such Proceeding; provided, however, that the
foregoing indemnity shall not apply to any Proceeding to the extent that it
arises out of, or is based upon, the gross negligence or willful misconduct of
Xxxxxxxx in connection therewith. Furthermore, the foregoing indemnity rights
23
will not take effect unless and until the total amount of the indemnification in
the aggregate is ten thousand dollars ($10,000) or greater.
(b) Indemnification of Champion. Xxxxxxxx hereby
agrees to indemnify Champion and each of its officers, directors,
employees, agents and affiliates and each person that controls (within
the meaning of Section 20 of the Exchange Act) any of the foregoing
persons (each a "Champion Indemnified Party") against any Proceeding,
that it may incur in connection with any of the transactions
contemplated hereby arising out of or based upon:
(i) any untrue or alleged untrue
statement of a material fact included in an SEC filing by
Champion with the express written consent of Xxxxxxxx therefor
by Xxxxxxxx or any of its affiliates or any person acting on
its or their behalf or omission or alleged omission to state
any such material fact necessary in order to make the
statements, in the light of the circumstances under which they
were made, not misleading by Xxxxxxxx or any of its affiliates
or any person acting on its or their behalf;
(ii) any of the representations or
warranties made by Xxxxxxxx herein being untrue or incorrect
at the time such representation or warranty was made; and
(iii) any breach or non-performance by
Xxxxxxxx of any of its covenants, agreements or obligations
under this Agreement;
and Xxxxxxxx hereby agrees to reimburse each Champion Indemnified Party for any
reasonable legal or other expenses incurred by such Champion Indemnified Party
in investigating or defending any such Proceeding; provided, however, that the
foregoing indemnity shall not apply to any Proceeding to the extent that it
arises out of, or is based upon, the gross negligence or willful misconduct of
Champion in connection therewith. Furthermore, the foregoing indemnity rights
will not take effect unless and until the total amount of the indemnification in
the aggregate is ten thousand dollars ($10,000) or greater.
(c) Conduct of Claims.
(i) Whenever a claim for
indemnification shall arise under this Section 18, the party
seeking indemnification (the "Indemnified Party"), shall
notify the party from whom such indemnification is sought (the
"Indemnifying Party") in writing of the Proceeding and the
facts constituting the basis for such claim in reasonable
detail;
(ii) Such Indemnifying Party shall have
the right to retain the counsel of its choice in connection
with such Proceeding and to participate at its own expense in
the defense of any such Proceeding; provided, however, that
counsel to the Indemnifying Party shall not (except with the
consent of the relevant Indemnified Party) also be counsel to
such Indemnified Party. In no event shall the Indemnifying
Party be liable for fees and expenses of more than
24
one counsel (in addition to any local counsel) separate from
its own counsel for all Indemnified Parties in connection with
any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances; and
(iii) No Indemnifying Party shall,
without the prior written consent of the Indemnified Parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification
could be sought under this Section unless such settlement,
compromise or consent (A) includes an unconditional release of
each Indemnified Party from all liability arising out of such
litigation, investigation, proceeding or claim and (B) does
not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
Indemnified Party.
19. Survival of the Representations, Warranties, etc. The
respective representations, warranties, and agreements made herein by or on
behalf of the parties hereto shall remain in full force and effect, regardless
of any investigation made by or on behalf of the other party to this Agreement
or any officer, director or employee of, or person controlling or under common
control with, such party and will survive delivery of and payment for any
Investment Securities issuable hereunder.
20. Notices. All communications hereunder shall be in writing and
delivered as set forth below.
(a) If sent to Xxxxxxxx, all communications
shall be delivered by hand, sent by reputable overnight courier or
transmitted and confirmed by facsimile to Xxxxxxxx, unless otherwise
notified in writing of a substitute address, at:
Xxxxxxxx International, Ltd.
c/o A. S. & K. Services Ltd.
Xxxxx Xxxxx, 00 Xxxxx Xxxxxx
Xxxxxxxx XX XX
Bermuda
Attention: Xxxxxxxx Xxxxxx, Corporate Administrator
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
25
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If sent to Champion, all communications
shall be delivered by hand, sent by reputable overnight courier or
transmitted and confirmed by facsimile to Champion, unless otherwise
notified in writing of a substitute address, at:
Champion Enterprises, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx PLLC
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: D. Xxxxxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the extent that any funds shall be delivered to Champion by wire transfer,
unless otherwise instructed by Champion, such funds should be delivered in
accordance with the following wire instructions:
Champion Enterprises, Inc.
Account Number: 1076-118940
ABA Number: 000000000
Bank: Comerica Bank
Account Name: Champion Enterprises, Inc.
21. Miscellaneous.
(a) The parties may execute and deliver this
Agreement as a single document or in any number of counterparts,
manually, by facsimile or by other electronic means, including
contemporaneous xerographic or electronic reproduction by each party's
respective attorneys. Each counterpart shall be an original, but a
single document
26
or all counterparts together shall constitute one instrument that shall
be the agreement. This Agreement shall become effective when each party
executes and delivers this Agreement to the other party.
(b) This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their respective successors and
assigns and, with respect to Section 18 hereof, shall inure to the
benefit of their respective officers, directors, employees, agents,
affiliates and controlling persons, and no other person shall have any
right or obligation hereunder. Champion may not assign this Agreement.
Notwithstanding anything to the contrary in this Agreement, Xxxxxxxx
may assign, pledge, hypothecate or transfer any of the rights and
associated obligations contemplated by this Agreement (including, but
not limited to, the Series C Preferred Shares, the Warrant and the
Common Shares), in whole or in part, at its sole discretion (including,
but not limited to, assignments, pledges, hypothecations and transfers
in connection with financing or hedging transactions with respect to
this Agreement, the Series C Preferred Shares, the Warrant and the
Common Shares), provided that any such assignment, pledge,
hypothecation or transfer must comply with applicable federal and state
securities laws, and provided further that the rights contained in
Section 9 hereof may not be assigned, pledged, hypothecated or
transferred. No person acquiring Common Stock from Xxxxxxxx pursuant to
a public market purchase shall thereby obtain any of the rights
contained in this Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties hereto with respect to the
subject matter of this Agreement. Except as provided in this Section
21(b), this Agreement is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
Notwithstanding the provisions of this Section 21(b) set forth above
and Section 6 herein, Xxxxxxxx shall not assign, pledge, hypothecate or
transfer any of the rights or associated obligations contemplated by
this Agreement (including, but not limited to, the Series C Preferred
Shares, the Warrant and the Common Shares), in whole or in part, to any
entity set forth on Schedule 21(b) hereto; provided that this
restriction shall not apply to (i) any such assignment, pledge,
hypothecation or transfer in connection with a Business Combination (as
defined in the Certificate of Rights and Preferences) that is approved
at any time by the requisite vote of the Company's shareholders or
Board of Directors or (ii) the tender of Common Stock in any publicly
announced tender offer.
(c) This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New
York, and each of the parties hereto hereby submits to the
non-exclusive jurisdiction of any state or federal court in the State
of New York and any court hearing any appeal therefrom, over any suit,
action or proceeding against it arising out of or based upon this
Agreement (a "Related Proceeding"). Each of the parties hereto hereby
waives any objection to any Related Proceeding in such courts whether
on the grounds of venue, residence or domicile or on the ground that
the Related Proceeding has been brought in an inconvenient forum.
(d) Each party represents and acknowledges that,
in the negotiation and drafting of this Agreement and the other
instruments and documents required or contemplated hereby, it has been
represented by and relied upon the advice of counsel of
27
its choice. Each party hereby affirms that its counsel has had a
substantial role in the drafting and negotiation of this Agreement and
such other instruments and documents. Therefore, each party agrees that
no rule of construction to the effect that any ambiguities are to be
resolved against the drafter shall be employed in the interpretation of
this Agreement and such other instruments and documents.
(e) Without prejudice to other rights or
remedies hereunder (including any specified interest rate), and except
as otherwise expressly set forth herein, interest shall be due on any
amount that is due pursuant to this Agreement and has not been paid
when due, calculated for the period from and including the due date to
but excluding the date on which such amount is paid at the prime rate
of U.S. money center banks as published in The Wall Street Journal (or
if The Wall Street Journal does not exist or publish such information,
then the average of the prime rates of three U.S. money center banks
agreed to by the parties) plus two percent (2%).
(f) Xxxxxxxx and Champion stipulate that the
remedies at law of the parties hereto in the event of any default or
threatened default by either party in the performance of or compliance
with any of the terms of this Agreement, the Certificate of Rights and
Preferences and the Warrant are not and will not be adequate and that,
to the fullest extent permitted by law, such terms may be specifically
enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
(g) Any and all remedies set forth in this
Agreement, the Certificate of Rights and Preferences and the Warrant:
(i) shall be in addition to any and all other remedies Xxxxxxxx or
Champion may have at law or in equity, (ii) shall be cumulative, and
(iii) may be pursued successively or concurrently as each of Xxxxxxxx
and Champion may elect. The exercise of any remedy by Xxxxxxxx or
Champion shall not be deemed an election of remedies or preclude
Xxxxxxxx or Champion, respectively, from exercising any other remedies
in the future.
(h) Champion agrees that the parties have
negotiated in good faith and at arms' length concerning the
transactions contemplated herein, and that Xxxxxxxx would not have
agreed to the terms of this Agreement without each and every of the
terms, conditions, protections and remedies provided herein and the
Certificate of Rights and Preferences and the Warrant. Except as
specifically provided otherwise in this Agreement, the Certificate of
Rights and Preferences and the Warrant, Champion's obligations to
indemnify and hold Xxxxxxxx harmless in accordance with Section 18 of
this Agreement are obligations of Champion that Champion promises to
pay to Xxxxxxxx when and if they become due. Champion shall record any
such obligations on its books and records in accordance with U.S.
generally accepted accounting principles. Except as specifically
provided otherwise in this Agreement, the Certificate of Rights and
Preferences and the Warrant, Xxxxxxxx'x obligations to indemnify and
hold Champion harmless in accordance with Section 18 of this Agreement
are obligations of Xxxxxxxx that Xxxxxxxx promises to pay to Champion
when and if they become due. Xxxxxxxx shall record any such obligations
on its books and records in accordance with U.S. generally accepted
accounting principles.
28
(i) This Agreement may be amended, modified or
supplemented in any and all respects, but only by a written instrument
signed by Xxxxxxxx and Champion expressly stating that such instrument
is intended to amend, modify or supplement this Agreement.
(j) Each of the parties will cooperate with the
others and use its best efforts to prepare all necessary documentation,
to effect all necessary filings, and to obtain all necessary permits,
consents, approvals and authorizations of all governmental bodies and
other third-parties necessary to consummate the transactions
contemplated by this Agreement.
(k) For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender and neuter gender of such term; (ii) accounting terms not
otherwise defined herein have the meanings assigned to them in
accordance with U.S. generally accepted accounting principles; (iii)
references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement, unless the context shall otherwise
require; (iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions; (v) the words "herein", "hereof",
"hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular provision; (vi) the term "include"
or "including" shall mean without limitation; (vii) the table of
contents to this Agreement and all section titles or captions contained
in this Agreement or in any Schedule or Exhibit annexed hereto or
referred to herein are for convenience only and shall not be deemed a
part of this Agreement and shall not affect the meaning or
interpretation of this Agreement; (viii) any agreement, instrument or
statute defined or referred to herein means such agreement, instrument
or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable
successor statues and references to all attachments thereto and
instruments incorporated therein; and (ix) references to a person are
also to its permitted successors and assigns and, in the case of an
individual, to his or her heirs and estate, as applicable.
(l) If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law or public policy all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect. If
the final judgment of a court of competent jurisdiction or other
authority declares that any term or provision hereof is invalid, void
or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area
or applicability of the term or provision, to delete specific words or
phrases, or to replace any invalid, void or unenforceable term or
provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or
unenforceable term or provision. Upon such determination that any term
or other
29
provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the
fullest extent possible.
(m) Time shall be of the essence in this
Agreement.
[SIGNATURE PAGE FOLLOWS]
30
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, all as of the day and year first above written.
CHAMPION ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXXXXX INTERNATIONAL, LTD., by its duly
authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------
Title: Deputy CEO
--------------------------------
31
ANNEX A
[FORM OF CERTIFICATE OF RIGHTS AND PREFERENCES OF
SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK OF
CHAMPION ENTERPRISES, INC.]
A-1
ANNEX B
[FORM OF XXXXXXXX NOTICE]
_____________, __
Champion Enterprises, Inc.
Xxxxx 000
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
Xxxxxxxx International, Ltd. ("Xxxxxxxx") hereby elects to
exercise the Xxxxxxxx Rights (as defined in the Agreement (the "Agreement")
dated as of March 29, 2002 by and between Xxxxxxxx and Champion Enterprises,
Inc. Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Agreement.
In accordance with the terms of Section 3 of the Agreement,
the Additional Issuance Price shall be ______________________ and the Subsequent
Closing Date shall be __________.
XXXXXXXX INTERNATIONAL, LTD., by its
duly authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: ____________________________________
Name: __________________________________
Title:__________________________________
By:_____________________________________
Name: __________________________________
Title: _________________________________
B-1
AGREED AND ACKNOWLEDGED:
CHAMPION ENTERPRISES, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
B-2
ANNEX C
[FORM OF REDEMPTION NOTICE]
_____________, __
Champion Enterprises, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
Xxxxxxxx International, Ltd. ("Xxxxxxxx") hereby elects to
exercise the Redemption Rights (as defined in the Agreement (the "Agreement")
dated as of March 29, 2002 by and between Xxxxxxxx and Champion Enterprises,
Inc. as to __________ shares of the Series C Cumulative Convertible Preferred
Stock of Champion Enterprises, Inc. Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Agreement.
XXXXXXXX INTERNATIONAL, LTD., by its
duly authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
C-1
AGREED AND ACKNOWLEDGED:
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
X-0
XXXXX X
[XXXX XX XXXXXXXX NOTICE]
Xxxxxxxx International, Ltd.
C/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx") and the Redemption Notice dated
__________. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement.
Champion hereby elects to redeem __________ shares of Series C
Cumulative Convertible Preferred Stock pursuant to Section 1(d) of the Agreement
and Section 6(B) of the Certificate of Rights and Preferences with:
IF CASH ELECTION STATE AMOUNT OF CASH
________________CASH
IF COMMON STOCK ELECTION STATE AMOUNT OF COMMON STOCK AND BASIS FOR CALCULATION
________________REGISTERED COMMON STOCK
________________UNREGISTERED COMMON STOCK
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
D-1
ANNEX E
[FORM OF DELIVERY NOTICE]
[date]
Xxxxxxxx International, Ltd.
C/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Agreement.
Attached are copies of the front and back of (i) the [ ]
original stock certificates, each representing [ ] shares of Series C Preferred
Stock, and (ii) the Warrant purchased by Xxxxxxxx on the date hereof and,
together with a copy of the overnight courier air xxxx which will be used to
ship such stock certificates and the Warrant. We have the executed original
stock certificates, the Warrant, and the other documents required to be
delivered in connection with the Initial Closing Date. Upon our confirmation of
the payment of the [$ ] aggregate purchase price therefor, we will send the
original stock certificates and the Warrant, each registered under the name
["Bear Xxxxxxx Securities Corp., as Custodian for Bear Xxxxxxx International
Limited, Pledgee of Xxxxxxxx International, Ltd."], by overnight courier to the
following address:
[Bear Xxxxxxx Securities Corp.
0 Xxxxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Cashiers, 4th Floor
Xxxxxxx Xxxx, Prime Broker Services
Telephone: 000-000-0000
F/B/X Xxxxxxxx International, Ltd.
Account #102-26934]
and we will send the other original documents by overnight courier to the
following address:
[Xxxxxxxx International, Ltd.
c/o A.S.& K. Services Ltd.
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx XX XX
E-1
Bermuda
Attention: Xxxxxxxx Xxxxxx, Corporate Administrator
Telephone: 000-000-0000]
with a copy to:
[Xxxxxxxx International Limited
c/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx]
Attached hereto as Exhibit 1 is a true, correct and complete
copy of the most recent report of PricewaterhouseCoopers LLP to the Board of
Directors and Shareholders of Champion, together with the accompanying
consolidated financial statements and schedules of Champion, as such report
appears in the most recent Annual Report on Form 10-K filed by Champion with the
SEC, as well as all Quarterly Reports on Form 10-Q filed by Champion with the
SEC since the date of such Form 10-K, together with all amendments thereto.
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
X-0
X-0
ANNEX F
[AUDITOR REPORT]
F-1
ANNEX G
[FORM OF PREFERRED STOCK CONVERSION NOTICE]
[date]
Champion Enterprises, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention:
Telephone:
Facsimile:
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Agreement.
Xxxxxxxx hereby elects to convert _________ shares of Series C
Preferred Stock into ________ shares of Common Stock at a Conversion Price (as
defined in the Certificate of Rights and Preferences) of ____________. In
accordance with Section 6 of the Certificate of Rights and Preferences, such
shares of Common Stock shall be registered under the name ["Bear Xxxxxxx
Securities Corp., as Custodian for Bear Xxxxxxx International Limited, Pledgee
of Xxxxxxxx International, Ltd."] and delivered to Xxxxxxxx in certificated form
at the address specified below:
[Bear Xxxxxxx Securities Corp.
0 Xxxxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Cashiers, 4th Floor
Xxxxxxx Xxxx, Prime Broker Services
Telephone: 000-000-0000
F/B/X Xxxxxxxx International, Ltd.
Account #102-26934]
G-1
XXXXXXXX INTERNATIONAL, LTD., by its
duly authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
AGREED AND ACKNOWLEDGED:
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
G-2
ANNEX H
[FORM OF PREFERRED STOCK CONVERSION DELIVERY NOTICE]
[date]
Xxxxxxxx International, Ltd.
c/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Agreement.
This notice confirms that _________ shares of Series C
Preferred Stock have been converted by Xxxxxxxx into ________ shares of Common
Stock at a Conversion Price (as defined in the Certificate of Rights and
Preferences) of ____________. Attached are copies of the front and back of the
____ original stock certificates, each representing ______ shares of Common
Stock, together with a copy of the overnight courier air xxxx which will be used
to ship such stock certificates. We will send the original stock certificates,
registered under the name ["Bear Xxxxxxx Securities Corp., as Custodian for Bear
Xxxxxxx International Limited, Pledgee of Xxxxxxxx International, Ltd."], by
overnight courier to the following address:
[Bear Xxxxxxx Securities Corp.
0 Xxxxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Cashiers, 4th Floor
Xxxxxxx Xxxx, Prime Broker Services
Telephone: 000-000-0000
F/B/X Xxxxxxxx International, Ltd.
Account #102-26934]
H-1
with a copy to:
[Xxxxxxxx International, Ltd.
c/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx]
[If Preferred Stock certificates tendered by Xxxxxxxx are not being fully
converted, insert the following - Also attached are copies of the front and back
of the original stock certificate representing ______ shares of Series C
Preferred Stock, representing the unconverted portion of the tendered Series C
Preferred Stock certificates, together with a copy of the overnight courier air
xxxx which will be used to ship such stock certificate. We will send the
original stock certificate by overnight courier to Xxxxxx Brothers Inc. at the
address set forth in the previous paragraph.]
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
H-2
ANNEX I
[FORM OF EXCESS RIGHTS NOTICE]
_____________, __
Champion Enterprises, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
Xxxxxxxx International, Ltd. ("Xxxxxxxx") hereby elects to
exercise its right to convert/redeem some or all of its Series C Preferred
Shares (as defined in the Agreement (the "Agreement")) dated as of March 29,
2002 by and between Champion Enterprises, Inc. ("Champion") and Xxxxxxxx and, in
lieu of receipt of ________ Common Shares upon [conversion][redemption] of
_______ Series C Preferred Shares, hereby requests creation of Excess Rights
with a stated value of $________ in accordance with the terms of the Agreement.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement.
XXXXXXXX INTERNATIONAL, LTD., by its
duly authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
I-1
AGREED AND ACKNOWLEDGED:
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
I-2
ANNEX J
[FORM OF TWO YEAR CONVERSION NOTICE]
[date]
Xxxxxxxx International, Ltd.
c/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx") and the Certificate of Rights and
Preferences of the Series C Cumulative Convertible Preferred Stock (the
"Certificate"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement and the Certificate.
In compliance with Section 6(A)(i) of the Certificate,
Champion hereby elects to convert ______ shares of Series C Cumulative Preferred
Stock, which represents, all but not less than all of the shares of Series C
Cumulative Preferred Stock. In compliance with Section 6(A)(i) of the
Certificate, Champion hereby represents that the Company has sufficient
Registered Common Stock to deliver to the Holder or Holders upon the closing of
such conversion.
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
J-1
ANNEX K
[FORM OF BUSINESS COMBINATION RESTRICTION NOTICE]
[date]
Xxxxxxxx International, Ltd.
c/x Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Agreement (the "Agreement") dated as
of March 29, 2002 by and between Champion Enterprises, Inc. ("Champion") and
Xxxxxxxx International, Ltd. ("Xxxxxxxx") and the Certificate of Rights and
Preferences of the Series C Cumulative Convertible Preferred Stock (the
"Certificate"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement and the Certificate.
Champion hereby represents that public disclosure has been
made of a Business Combination. [It hereby elects, pursuant to Section 6(F) of
the Certificate of Rights and Preferences to redeem all outstanding Series C
Preferred Shares for cash in the amount of $_____________. It hereby further
elects, pursuant to Section 11 of the Agreement to redeem all outstanding
Xxxxxxxx Rights for cash in the amount of $_______________.]
CHAMPION ENTERPRISES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
K-1
ANNEX L
[FORM OF WARRANT]
L-1
ANNEX M
[FORM OF AMENDED AND RESTATED
CERTIFICATE OF RIGHTS AND PREFERENCES OF
SERIES B-1 CUMULATIVE CONVERTIBLE PREFERRED STOCK OF
CHAMPION ENTERPRISES, INC.]
L-2
ANNEX N
[FORM OF CERTIFICATE OF RIGHTS AND PREFERENCES OF
SERIES X-0, X-0, ETC. CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF CHAMPION ENTERPRISES, INC.]
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE......................................................1
2. INITIAL CLOSING........................................................3
3. SUBSEQUENT CLOSING.....................................................4
4. REPRESENTATIONS AND WARRANTIES OF CHAMPION.............................4
5. REGISTRATION PROVISIONS................................................9
6. "MARKET STAND-OFF" AGREEMENT..........................................12
7. CONVERSION AND REDEMPTION OF PREFERRED SHARES.........................13
8. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX............................15
9. RIGHT OF FIRST OFFER..................................................16
10. COVENANTS OF CHAMPION..............................................18
11. CONSOLIDATION, MERGER, ETC.........................................19
12. COVENANTS OF XXXXXXXX..............................................20
13. LEGEND.............................................................21
14. CONDITIONS PRECEDENT TO XXXXXXXX'X OBLIGATIONS.....................21
15. CONDITIONS PRECEDENT TO CHAMPION'S OBLIGATIONS.....................22
16. FEES AND EXPENSES..................................................22
17. NON-PERFORMANCE....................................................22
18. INDEMNIFICATION....................................................23
19. SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, ETC...................25
20. NOTICES............................................................25
21. MISCELLANEOUS......................................................26
ANNEXES
FORM OF CERTIFICATE OF RIGHTS AND
PREFERENCES OF SERIES C CUMULATIVE CONVERTIBLE
PREFERRED STOCK OF CHAMPION ENTERPRISES, INC..........................A-1
FORM OF XXXXXXXX NOTICE......................................................C
FORM OF REDEMPTION NOTICE ...................................................C
FORM OF CHAMPION NOTICE....................................................D-1
FORM OF DELIVERY NOTICE...............................................E-1, E-2
AUDITOR REPORT.............................................................F-1
FORM OF PREFERRED STOCK CONVERSION NOTICE.............................G-1, G-2
-i-
FORM OF PREFERRED STOCK CONVERSION DELIVERY NOTICE....................H-1, H-2
FORM OF EXCESS RIGHTS NOTICE...............................................I-1
FORM OF TWO YEAR CONVERSION NOTICE.........................................J-1
FORM OF BUSINESS COMBINATION RESTRICTION NOTICE............................K-1
FORM OF WARRANT............................................................L-1
FORM OF AMENDED AND RESTATED CERTIFICATE OF
RIGHTS AND PREFERENCES OF SERIES B-1 CUMULATIVE CONVERTIBLE
PREFERRED STOCK OF CHAMPION ENTERPRISES, INC..........................M-1
FORM OF CERTIFICATE OF RIGHTS AND PREFERENCES OF
SERIES X-0, X-0, ETC. CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF CHAMPION ENTERPRISES, INC..........................................N-1
-ii-
INDEX OF DEFINED TERMS
PAGE
65 Day Notice................................................................14
Additional Issuance Price.....................................................4
Additional Preferred Shares...................................................1
Agreement.....................................................................1
Auditor Report................................................................9
Average Price................................................................14
Business Day..................................................................3
Certificate of Rights and Preferences.........................................1
Champion......................................................................1
Champion Indemnified Party...................................................24
Closing Date..................................................................2
Common Shares.................................................................3
Common Stock..................................................................1
Excess Rights................................................................14
Excess Rights Notice.........................................................14
Exchange Act..................................................................3
Exercisable Number...........................................................14
First Offer Shareholders.....................................................16
Xxxxxxxx......................................................................1
Xxxxxxxx Indemnified Party...................................................23
Xxxxxxxx Notice...............................................................2
Xxxxxxxx Notice Date.........................................................13
Xxxxxxxx Rights...............................................................1
Xxxxxxxx Rights Period........................................................2
Increase Notice..............................................................19
Indemnified Party............................................................24
Indemnifying Party...........................................................24
Initial Closing...............................................................1
Initial Closing Date..........................................................1
Initial Preferred Shares......................................................1
Investment Securities.........................................................3
Issuance Blockage............................................................13
Maximum Number...............................................................14
NASD..........................................................................3
Notice Period................................................................14
NYSE..........................................................................3
Offer Notice.................................................................16
Offered Shares...............................................................16
Original Number..............................................................13
Preferred Stock...............................................................7
-1-
Preferred Stock Conversion Delivery Notice...................................13
Preferred Stock Conversion Notice............................................13
Proceeding...................................................................23
Redemption Common Stock.......................................................2
Redemption Notice.............................................................2
Redemption Rights.............................................................2
Related Proceeding...........................................................27
Required Consent.............................................................13
Rights Commencement Date......................................................2
SEC...........................................................................7
Sec Filing....................................................................7
Securities Act................................................................7
Series C Preferred Shares.....................................................1
Series C Preferred Stock......................................................1
Subsequent Closing............................................................2
Subsequent Closing Date.......................................................2
Warrant.......................................................................1
Warrant Exercise Delivery Notice..............................................2
Warrant Exercise Notice.......................................................2
-2-
