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EXHIBIT 4.1
WARRANTHOLDERS RIGHTS AGREEMENT
THIS WARRANTHOLDERS RIGHTS AGREEMENT, dated as of July 26,
1999, between THOMASTON XXXXX, INC., a Georgia corporation (together with its
successors, the "COMPANY"); and WACHOVIA BANK, N.A., a national banking
association ("WACHOVIA"), SUNTRUST BANK, ATLANTA, a Georgia banking corporation
("SUNTRUST") and BANK OF AMERICA, N.A., a national bank ("BOFA") (Wachovia,
SunTrust and BOFA, and their respective successors and assigns, herein sometimes
called, collectively, the "WARRANTHOLDERS").
WHEREAS, on the date hereof, Warrantholders have purchased and
are the beneficial owners of the Warrants (as defined herein); and
WHEREAS, the Company wish to provide to the Warrantholders the
rights described herein in respect of the Warranties.
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Unless otherwise defined herein, the
following terms used in this Agreement shall have the meanings specified below.
"AFFILIATE" means, with respect to any Person, any of (i) a
director or executive officer of such Person, (ii) a spouse, parent, sibling or
descendant of such Person (or a spouse, parent, sibling or descendant of any
director or executive officer of such Person) and (iii) any other Person that,
directly or indirectly, controls, or is controlled by or is under common control
with such Person. For the purpose of this definition, "control" (including the
terms "controlling", "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
agency or otherwise.
"BHC ACT" means the Bank Holding Company Act of 1956, as
amended.
"COMMISSION" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
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"COMMON STOCK" means, individually and collectively, (i) all
those shares of Class A non-voting Common Stock of Company, $1.00 par value per
share, and (ii) all those shares of Class B voting Common Stock of Company,
$1.00 par value per share; each as constituted on the date hereof.
"CONVERSION SHARES" means (i) any shares of Common Stock
issued upon the exercise of any Warrants and (ii) any securities issued with
respect to any of such shares referred to in clause (i) by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise; provided that any of
such securities shall cease to be Conversion Shares when such securities shall
have (x) been disposed of pursuant to a Public Sale or (y) ceased to be
outstanding.
"CREDIT AGREEMENT" means the Amended and Restated Credit and
Security Agreement dated as of July 26, 1999, among Company, the Warrantholders
and SunTrust, as Administrative Agent for the Lenders, as amended from time to
time.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or
any successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
"EXERCISE PERIOD" means a period (a) beginning on the earlier
of (i) December 31, 1999 or (ii) the occurrence of any "Bankruptcy Default" (as
that term is defined in the Credit Agreement), and (b) ending on December 31,
2004.
"EXERCISE PRICE" means $1.00, in the aggregate (and not per
share), for any and all shares of Common Stock issued pursuant to the Warrant.
"INITIATING HOLDERS" has the meaning set forth in Section 3.1
hereof.
"OTHER SHARES" has the meaning set forth in Section 3.1.
"PERSON" means a corporation, an association, a partnership, a
limited liability company, an organization, a business, an individual, a trust,
a government or a subdivision thereof or a governmental agency.
"PUBLIC SALE" means any sale of Common Stock to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(or any successor provision then in effect) adopted under the Securities Act.
"REGISTRABLE SECURITIES" means any Conversion Shares until the
date (if any) on which such Conversion Shares shall have been transferred or
exchanged and new certificates for them not bearing a legend restricting further
transfer shall have been delivered by Company and
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subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force.
"REGISTRATION EXPENSES" means all expenses incident to
Company's performance of or compliance with Sections 3.1 through 3.5 hereof,
including (i) all registration, filing and NASD fees, (ii) all fees and expenses
of complying with securities or blue sky laws, (iii) all word processing,
duplicating and printing expenses, (iv) all messenger and delivery expenses, (v)
the fees and disbursements of counsel for Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
fees and disbursements of any one counsel and any one accountant retained by the
holder or holders of more than fifty percent (50%) of the Registrable Securities
being registered (or, in the case of any registration effected pursuant to
Section 3.1, as the Initiating Holders shall have selected to represent all
holders of the Registrable Securities being registered), (vii) premiums and
other costs of policies of insurance (if any) against liabilities arising out of
the public offering of the Registrable Securities being registered if the
Company desires such insurance and (viii) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but not
including underwriting discounts and commissions and transfer taxes, if any,
provided that, in any case where Registration Expenses are not to be borne by
Company, such expenses shall not include (i) salaries of Company personnel or
general overhead expenses of Company, (ii) auditing fees, (iii) premiums or
other expenses relating to liability insurance required by underwriters of
Company or (iv) other expenses for the preparation of financial statements or
other data, to the extent that any of the foregoing either is normally prepared
by Company in the ordinary course of its business or would have been incurred by
Company had no registration taken place.
"REGULATION Y HOLDER" means any Warrant Securityholder that is
a bank holding company within the meaning of the BHC Act, or a subsidiary
thereof subject to Regulation Y under the BHC Act.
"REGULATORY CHANGE" means, with respect to any Regulation Y
Holder, (i) any change on or after the date hereof in United States federal or
state or foreign laws or regulations (including the BHC Act and Regulation Y
thereunder); (ii) the adoption on or after the date hereof of any interpretation
or ruling applying to such Regulation Y Holder, individually or as a member of a
class, under any United States federal or state or foreign laws or regulations
by any court or governmental or regulatory authority charged with the
interpretation or administration thereof; or (iii) the modification on or after
the date hereof of any agreement or commitment with any such governmental or
regulatory authority that is applicable to or binding upon such Regulation Y
Holder.
"RESTRICTED SECURITIES" means the Warrants, the Conversion
Shares and any securities obtained upon exchange for or upon conversion or
transfer of or as a distribution on Warrants, the Conversion Shares or any such
securities; provided that particular securities shall cease to be Restricted
Securities when such securities shall have (x) been disposed of pursuant to a
Public Sale, (y) been otherwise transferred or exchanged and new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by Company and subsequent disposition of them shall not require
registration or qualification of them under the
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Securities Act or any similar state law then in force or (z) ceased to be
outstanding. Whenever any particular securities cease to be Restricted
Securities, the holder thereof shall be entitled to receive from the issuer
thereof or its transfer agent, without expense (other than transfer taxes, if
any), new securities of like tenor not bearing a legend of the character set
forth in Section 2.2.
"SECURITIES ACT" means the Securities Act of 1933, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such similar Federal statute.
WARRANT SECURITYHOLDER" means at any time any Warrantholder or
any holder of Conversion Shares.
"WARRANTHOLDERS" has the meaning set forth in the introductory
paragraph.
"WARRANTS" means the warrant to acquire specified percentages
of the Common Stock issued to the Warrantholders on the date hereof by Company,
as such Warrants may be transferred or otherwise assigned, but only to the
extent not theretofore exercised, redeemed or expired in accordance with their
respective terms.
All references herein to "DAYS" shall mean calendar days
unless otherwise specified.
ARTICLE II
TRANSFER OF SHARES;
PAYMENTS TO WARRANT SECURITYHOLDERS
SECTION 2.1 GENERAL. Except as otherwise expressly provided in
this Agreement, the Credit Agreement or by applicable law, each Warrant
Securityholder may transfer Restricted Securities at any time to any Person.
Notwithstanding anything to the contrary contained in this Agreement, the Credit
Agreement or any other document or agreement that is collateral to the Credit
Agreement, so long as the Company is a going concern, the Restricted Securities
shall not be transferable to any Person whose business interests are primarily
in the textile industry without the prior written consent of the Company, which
consent may be withheld or denied in the Company's absolute and sole discretion.
SECTION 2.2 RESTRICTIONS ON TRANSFER; LEGEND ON CERTIFICATES.
(a) Except as otherwise provided in this Agreement, Restricted Securities shall
not be transferable except (i) pursuant to an effective registration statement
under the Securities Act, (ii) pursuant to Rule 144 or 144A (or any successor
provisions) under the Securities Act, (iii) to an Affiliate of the holder of
Restricted Securities, from an Affiliate of such holder to such holder or
between Affiliates of such holder (if any such Affiliate to whom shares of
Restricted Securities have been transferred by a holder thereof ceases to be an
Affiliate of such holder of Restricted Securities, such
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Restricted Securities shall immediately be transferred back to the transferor
thereof), or (iv) pursuant to a transaction that is otherwise exempt from the
registration requirements of the Securities Act.
(b) Unless otherwise expressly provided herein, each
certificate for Restricted Securities and each certificate issued in exchange
for or upon transfer of any thereof shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SHARES REPRESENTED HEREBY WERE OFFERED AND SOLD IN A NON-PUBLIC
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF FEDERAL AND
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED BY THE HOLDER HEREOF EXCEPT IN A TRANSACTION IN
COMPLIANCE WITH SUCH REGISTRATION REQUIREMENTS OR EXEMPT THEREFROM.
TRANSFER OF THE SHARES REPRESENTED HEREBY IS FURTHER RESTRICTED BY THE
TERMS OF A CERTAIN WARRANTHOLDERS RIGHTS AGREEMENT, DATED JULY 26,
1999, BETWEEN THOMASTON XXXXX, INC. AND THE CERTIFICATE HOLDER, AMONG
OTHERS (THE "RIGHTS AGREEMENT"), A COPY OF WHICH MAY BE INSPECTED AT
THE PRINCIPAL OFFICE OF THOMASTON XXXXX, INC."
(c) Any other provision of this Agreement to the contrary
notwithstanding, no transfer of any Restricted Securities other than pursuant to
a Public Sale may be made to any Person unless such Person shall have agreed in
writing that such Person, as a holder of Restricted Securities, and the
Restricted Securities it acquires shall be bound by and be entitled to the
benefits of all the provisions of this Agreement applicable to such Restricted
Securities (and upon such agreement such Person shall be entitled to such
benefits). Any purported transfer of Restricted Securities without compliance
with the applicable provisions of this Agreement shall be void and of no effect,
and the purported transferee shall have no rights as a Warrantholder or
Stockholder (as applicable) or under this Agreement. In the event of such
non-complying transfer, Company shall not transfer any such Restricted
Securities on its books or recognize the purported transferee as a shareholder
or warrantholder, as the case may be, for any purpose, until all applicable
provisions of this Agreement have been complied with.
SECTION 2.3 RESTRICTIONS ON TRANSFER BY REGULATION Y HOLDERS.
No Regulation Y Holder may transfer any Warrant or any Conversion Shares;
provided that such Regulation Y Holder may transfer such Warrant or Conversion
Shares (i) to Company, (ii) to the public in an offering registered under the
Securities Act, (iii) in a transaction pursuant to Rule 144 or Rule 144A (or any
successor provisions) under the Securities Act or otherwise exempt from the
registration requirements of the Securities Act in which no single purchaser
receives from the Regulation Y Holder an interest (treating any such Warrant as
exercised) equivalent to more than five percent (5%) of the outstanding voting
Common Stock, (iii) to an Affiliate of the holder of Restricted Securities, from
an Affiliate of such holder to such holder or between Affiliates of such holder
(if any such Affiliate to whom shares of Restricted Securities have been
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transferred by a holder thereof ceases to be an Affiliate of such holder of
Restricted Securities, such Restricted Securities shall immediately be
transferred back to the transferor thereof), or (v) in a single transaction to a
third party who acquires at least a majority of the Common Stock without regard
to the transfer of such Warrant or Conversion Shares. In the event of a
Regulatory Change, the effect of which is to permit such Regulation Y Holder to
transfer such Warrant or Conversion Shares in any other manner, the foregoing
proviso shall be deemed modified to permit a transfer of such Warrant or
Conversion Shares in such other manner.
SECTION 2.5 NO INCONSISTENT AGREEMENTS. Company has not
entered into and will not enter into any registration rights agreement or
similar arrangements the performance by Company of the terms of which would in
any manner conflict with, restrict or be inconsistent with the performance by
Company of its obligations under this Agreement.
SECTION 2.6 REPORTING. The Company and the Warrantholders
acknowledge and agree that, solely for federal income tax purposes, (i) the
Warrants together with the "Loan" (as that term is defined in the Credit
Agreement) constitute an investment unit, and (ii) the aggregate issue price of
the "Loan" is Fourteen Million Nine Hundred Ninety Thousand Dollars
($14,990,000), and the aggregate purchase price of the Warrants is Ten Thousand
Dollars ($10,000), allocated among the Warrantholders based on their "Pro Rata
Shares" (as that term is defined in the Credit Agreement). Neither the Company
nor any Warrantholder shall voluntarily take any action inconsistent with the
foregoing clauses (i) and (ii) for federal income tax reporting purposes.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1 REGISTRATION ON REQUEST. (a) At any time or from
time to time, upon the written request of the holder or holders of a majority of
all outstanding Conversion Shares and Warrants (such majority determined, for
purposes of this Section 3.1, by calculating the number of Conversion Shares for
which such Warrants are then exercisable) (the "INITIATING HOLDERS"), requesting
that Company effect the registration under the Securities Act of all or part of
such Initiating Holders' Registrable Securities and specifying the intended
method of disposition thereof, Company will promptly give written notice of such
requested registration to all holders of Warrants and Registrable Securities,
and thereupon Company will use its best efforts to effect the registration under
the Securities Act of:
(i) the Registrable Securities which Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request;
(ii) all other Registrable Securities the holders of which
shall have made a written request to Company for registration thereof
within thirty (30) days after the giving of such written notice by
Company (which request shall specify the intended method of disposition
of such Registrable Securities); and
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(iii) all shares of Common Stock which Company may elect to
register in connection with the offering of Registrable Securities
pursuant to this Section 3.1, whether for its own account or for the
account of a holder of Common Stock,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional shares of Common Stock, if any, to be so registered, provided that
the Company shall not be required to comply with more than one registration
request pursuant to this Section 3.1, except that in the event less than fifty
percent (50%) of the Registrable Shares requested to be registered by the
Initiating Holders are registered pursuant to such requested registration, the
Initiating Holders shall be entitled to request one, and only one, additional
registration pursuant to this Section 3.1 (the "Follow Up Registration").
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not be required to pay any Registration Expenses in connection
with such Follow Up Registration, and neither the Initiating Holders in
particular, nor the Warrant Securityholders as a class in general, shall have
the right to request any additional registrations other than the initial
registration request and one Follow Up Registration request, if any.
(b) Registrations under this Section 3.1 shall be on such
appropriate registration form of the Commission (i) as shall be selected by
Company and (ii) as shall permit the disposition of such Registrable Securities
in accordance with the intended method or methods of disposition specified in
their request for such registration. Company agrees to include in any such
registration statement all information which holders of Registrable Securities
being registered shall reasonably request.
(c) Company will pay all Registration Expenses in
connection with one registration requested pursuant to this Section 3.1. The
Registration Expenses (and underwriting discounts and commissions and transfer
taxes, if any, allocable to the Registrable Shares requested to be registered by
the Initiating Holders) in connection with the Follow Up Registration, if any,
requested under this Section 3.1 shall be paid for by the Initiating Holders
requesting such registration.
(d) A registration requested pursuant to this Section 3.1
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective; provided that a registration which
does not become effective after Company has filed a registration statement with
respect thereto solely by reason of the refusal to proceed by the Initiating
Holders (other than a refusal to proceed based upon the advice of counsel
relating to a matter with respect to Company) shall be deemed to have been
effected by Company at the request of the Initiating Holders unless the
Initiating Holders shall have elected to pay all Registration Expenses in
connection with such registration, (ii) if, after it has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason, other than by reason of some act or omission by any Warrantholder or
Warrant Securityholder, or (iii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied, other than by reason of some act or
omission by any Warrantholder or Warrant Securityholder.
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(e) If a requested registration pursuant to this Section
3.1 involves an underwritten offering, the underwriter or underwriters thereof
shall be selected by the holders of at least a majority (by a number of shares)
of the Registrable Securities as to which registration has been requested.
(f) If a requested registration pursuant to this Section
3.1 involves an underwritten offering, and the managing underwriter shall advise
Company (with a copy of any such notice to each holder of Registrable Securities
requesting registration) that, in its opinion, the number of securities
requested to be included in such registration (including securities proposed to
be sold for the account of Company) exceeds the number which can be sold in such
offering within a price range acceptable to the Initiating Holders, Company will
include in such registration, to the extent of the number which Company is so
advised can be sold in such offering, (i) first, Registrable Securities
requested to be included in such registration by the holder or holders of
Registrable Securities, pro rata among such holders requesting such registration
on the basis of the number of such securities requested to be included by such
holders, (ii) second, all shares proposed to be included by Company in such
registration and (iii) third, all shares other than Registrable Shares (any such
shares with respect to any registration, "OTHER SHARES") requested to be
included in such registration by the holder or holders thereof.
SECTION 3.2 INCIDENTAL REGISTRATION. (a) If Company at any
time proposes to register any of its securities under the Securities Act (other
than (x) by a registration on Form S-4 or S-8 or any successor or similar forms
or (y) pursuant to Section 3.1) whether for its own account or for the account
of the holder or holders of any Other Shares, it will each such time give prompt
written notice to all Warrant Securityholders of its intention to do so and of
such holders' rights under this Section 3.2. Upon the written request of any
such holder made within twenty (20) days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such holder and the intended method of disposition thereof), Company will
use its best efforts to effect the registration under the Securities Act of all
Registrable Securities which Company has been so requested to register by the
holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the securities which Company proposes to
register; provided that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, Company shall
determine for any reason either not to register or to delay registration of such
securities, Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any Warrant
Securityholder or Warrant Securityholders entitled to do so to request that such
registration be effected as a registration under Section 3.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
3.2 shall relieve Company of its obligation to effect any registration upon
request under Section 3.1, nor shall any such registration hereunder be deemed
to have been effected pursuant to Section
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3.1. Company will pay all Registration Expenses in connection with each
registration of Registrable Securities pursuant to this Section 3.2.
(b) If Company at any time proposes to register any of
its securities under the Securities Act as contemplated by Section 3.2 and such
securities are to be distributed by or through one or more underwriters, Company
will, if requested by any holder of Registrable Securities as provided in this
Section 3.2, use its best efforts to arrange for such underwriters to include
all the Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters, provided that if the managing
underwriter of such underwritten offering shall inform Company and holders of
the Registrable Securities requesting such registration and all other holders of
any other shares of Common Stock which shall have exercised, in respect of such
underwritten offering, registration rights comparable to the rights under this
Section 3.2 by letter of its belief that inclusion in such distribution of all
or a specified number of such securities proposed to be distributed by such
underwriters would interfere with the successful marketing of the securities
being distributed by such underwriters (such letter to state the basis of such
belief and the approximate number of such Registrable Securities and such Other
Shares proposed so to be registered which may be distributed without such
effect), then Company may, upon written notice to all holders of such
Registrable Securities and holders of such Other Shares, reduce pro rata (if and
to be extent stated by such managing underwriter to be necessary to eliminate
such effect) the number of such Registrable Securities and Other Shares the
registration of which shall have been requested by each holder thereof so that
the resultant aggregate number of such Registrable Securities and Other Shares
so included in such registration, together with the number of securities to be
included in such registration for the account of Company, shall be equal to the
number of shares stated in such managing underwriter's letter.
SECTION 3.3 REGISTRATION PROCEDURES. (a) If and whenever
Company is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 3.1 and 3.2, Company shall, as
expeditiously as possible:
(i) prepare and (within ninety (90) days after the end of
the period within which requests for registration may be given to
Company or in any event as soon thereafter as possible; provided that,
in the case of a registration pursuant to Section 3.1, such filing to
be made within ninety (90) days after the initial request of an
Initiating Holder of Registrable Securities or in any event as soon
thereafter as possible) file with the Commission the requisite
registration statement to effect such registration (including such
audited financial statements as may be required by the Securities Act)
and thereafter use its best efforts to cause such registration
statement to become and remain effective; provided further that Company
may discontinue any registration of its securities which are not
Registrable Securities at any time prior to the effective date of the
registration statement relating thereto; provided further that before
filing such registration statement or any amendments thereto, Company
will furnish to the counsel selected by the holders of Registrable
Securities which are to be included in such registration copies of all
such documents proposed to be filed, which documents will be subject to
the review of such counsel; provided further that the Company may
postpone filing a registration statement relating to a registration
pursuant to Section 3.1 or 3.2 of this Agreement for a reasonable
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period (not in excess of sixty (60) days after such filing would
otherwise be required under this subparagraph 3.3(a)(i) and provided
that a new sixty (60) day period shall be deemed to commence upon the
occurrence of any new event that would entitle the Company to postpone
filing a registration statement pursuant to this subclause), if in the
Company's judgment such filing would require the disclosure of material
information that the Company has a bona fide business purpose for
preserving as confidential.
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until the earlier of (x) in the case of a
registration pursuant to Section 3.1, the expiration of one hundred
twenty (120) days after such registration statement becomes effective,
or (y) in the case of a registration pursuant to Section 3.2, the
expiration of ninety (90) days after such registration statement
becomes effective;
(iii) furnish to each seller of Registrable Securities
covered by such registration statement and each underwriter, if any, of
the securities being sold by such seller such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller and underwriter, if any, may reasonably
request in order to facilitate the public sale or other disposition of
the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under blue sky or similar laws of such
jurisdictions as any seller thereof and any underwriter of the
securities being sold by such seller shall reasonably request, to keep
such registrations or qualifications in effect for so long as such
registration statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable such seller
and underwriter to consummate the disposition in such jurisdictions of
the securities owned by such seller, except that Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for
the requirements of this subdivision (iv) be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
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(vi) furnish to each seller of Registrable Securities a
signed counterpart, addressed to such seller and the underwriters, if
any, of
(x) an opinion of counsel for Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, an
opinion dated the date of the closing under the underwriting
agreement), reasonably satisfactory in form and substance to
such seller, and
(y) a "comfort" letter, dated the effective date
of such registration statement (and, if such registration
includes an underwritten public offering, a letter dated the
date of the closing under the underwriting agreement), signed
by the independent public accountants who have certified
Company' financial statements included in such registration
statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities;
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and confirm such
advice in writing promptly thereafter:
(A) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has
been filed, and, with respect to the registration statement or
any post-effective amendment thereto, when the same has become
effective;
(B) of any request by the Commission for
amendments or supplements to the registration statement or the
prospectus or for additional information;
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration or
the initiation of any proceedings by any Person for that
purpose; and
(D) of the receipt by Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
Company's discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
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the light of the circumstances then existing, and at the request of any
such seller promptly prepare and furnish to such seller and each
underwriter, if any, a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
(ix) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the registration statement
at the earliest possible moment;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar quarter
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(xi) make available for inspection by a representative of
the holders of Registrable Securities participating in the offering,
any underwriter participating in any disposition pursuant to the
registration and any attorney or accountant retained by such selling
holders or underwriter (each, an "INSPECTOR"), all financial and other
records, pertinent corporate documents and properties of Company (the
"RECORDS"), and cause Company' officers, directors and employees to
supply all information reasonably requested by any such Inspector in
connection with such registration; provided that Company shall not be
required to comply with this subdivision (xi) if there is a reasonable
likelihood, in the judgment of Company, that such delivery could result
in the loss of any attorney-client privilege related thereto; and
provided further that Records which Company determines, in good faith,
to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors (other than to
any holder of Registrable Securities participating in the offering)
unless (x) such Records have become generally available to the public
or (y) the disclosure of such Records may be necessary or appropriate
(A) to comply with any law, rule, regulation or order applicable to any
such Inspectors or holder of Registrable Securities, (B) in response to
any subpoena or other legal process or (C) in connection with any
litigation to which such Inspectors or any holder of Registrable
Securities is a party (provided that Company is provided with
reasonable notice of such proposed disclosure and a reasonable
opportunity to seek a protective order or other appropriate remedy with
respect to such Records);
(xii) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such Registration Statement;
(xiii) use its best efforts to list all Registrable
Securities covered by such registration statement on any securities
exchange on which any of the Common Stock is
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then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system,
use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national
market system security" within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers
to register as such with respect to such Registrable Securities with
the NASD; and
(xiv) use its best efforts to provide a CUSIP number for
the Registrable Securities, not later than the effective date of the
registration.
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish Company such information regarding
such seller and the distribution of such securities as Company may from time to
time reasonably request in writing for purposes of preparing the relevant
registration statement and amendments and supplements thereto.
(b) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice from
Company of the occurrence of any event of the kind described in subdivision
(viii) of Section 3.3(a), such holder will forthwith discontinue such holder's
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(viii) of Section 3.3(a). In the event Company shall give any such notice, the
periods specified in subdivision (ii) of Section 3.3(a) shall be extended by the
length of the period from and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received such notice to the date on which each such seller has received the
copies of the supplemented or amended prospectus contemplated by subdivision
(viii) of Section 3.3(a).
(c) If any such registration or comparable statement
refers to any holder of Registrable Securities by name or otherwise as the
holder of any securities of Company, then such holder shall have the right to
require, in the event that such reference to such holder by name or otherwise is
not required by the Securities Act or any similar federal statute then in force,
the deletion of the reference to such holder.
SECTION 3.4 UNDERWRITTEN OFFERINGS. (a) If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 3.1, Company will enter into
an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to Company, each such holder
and the underwriters, and to contain such representations and warranties by
Company and such other terms as are generally prevailing in agreements of such
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 3.5. The holders of the Registrable Securities will
cooperate with Company in the negotiation of the underwriting agreement.
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(b) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities not to sell, make any short sale of,
loan, grant any option for the purchase of, effect any public sale or
distribution of or otherwise dispose of any equity securities of Company, during
the ten days prior to and the ninety (90) days after the effective date of any
underwritten registration pursuant to Section 3.1 or 3.2 has become effective,
except as part of such underwritten registration, whether or not such holder
participates in such registration, and except as otherwise permitted by the
managing underwriter of such underwriting (if any). Each holder of Registrable
Securities agrees that Company may instruct its transfer agent to place stop
transfer notations in its records to enforce this Section 3.4(b).
(c) Company agrees (x) not to sell, make any short sale
of, loan, grant any option for the purchase of, effect any public sale or
distribution of or otherwise dispose of its equity securities or securities
convertible into or exchangeable or exercisable for any of such securities
during the ten (10) days prior to and the ninety (90) days after the effective
date of any registration pursuant to Section 3.1 or 3.2 has become effective,
except (i) as part of such registration, (ii) pursuant to registrations on Form
S-4 or S-8 or any successor or similar forms thereto or (iii) as otherwise
permitted by the managing underwriter of such offering (if any), and (y) to use
all reasonable efforts to cause each holder of its equity securities or any
securities convertible into or exchangeable or exercisable for any of such
securities, in each case purchased from Company at any time after the date of
this Agreement (other than in a public offering) to agree not to sell, make any
short sale of, loan, grant any option for the purchase of, effect any public
sale or distribution of or otherwise dispose of such securities during such
period except as part of such underwritten registration; provided that no holder
of Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to Company or the
underwriters other than representations and warranties regarding such holder,
such holder's Registrable Securities and such holder's intended method of
distribution.
(d) No Person may participate in any underwritten
offering hereunder unless such Person (i) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved,
subject to the terms and conditions hereof, by the Person or a majority of the
Persons entitled to approve such arrangements and (ii) completes and executes
all agreements, questionnaires, indemnities and other documents (other than
powers of attorney) required under the terms of such underwriting arrangements.
SECTION 3.5 INDEMNIFICATION. (a) Company agrees to indemnify
and hold harmless each holder of Registrable Securities whose Registrable
Securities are covered by any registration statement, its directors and officers
and each other Person, if any, who controls such holder within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
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Company will reimburse each such indemnified party for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided that
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to Company by or on behalf of such holder specifically for use in the
preparation thereof. In addition, Company shall indemnify any underwriter of
such offering and each other Person, if any, who controls any such underwriter
within the meaning of the Securities Act in substantially the same manner and to
substantially the same extent as the indemnity herein provided to each
Indemnified Party. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any such
director, officer, underwriter or controlling person and shall survive the
transfer of such securities by such holder.
(b) Each prospective seller of Registrable Securities
hereunder shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 3.5) Company, each
director of Company, each officer of Company and each other person, if any, who
controls Company within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereof, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to Company by
or on behalf of such seller specifically for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Any such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such seller. The amount payable by any
prospective seller of a Registrable Security with respect to the indemnification
set forth in this subsection (b) in connection with any such offering of
securities shall not exceed the amount of net proceeds received by such
prospective seller from such offering.
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 3.5, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 3.5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
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satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) If the indemnification provided for in the preceding
subdivisions of this Section 3.5 is unavailable to an indemnified party in
respect of any expense, loss, claim, damage or liability referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such expense, loss, claim, damage or liability (i) in such proportion
as is appropriate to reflect the relative benefits received by Company on the
one hand and the holder or underwriter, as the case may be, on the other from
the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of Company on the one hand
and of the holder or underwriter, as the case may be, on the other in connection
with the statements or omissions which resulted in such expense, loss, damage or
liability, as well as any other relevant equitable considerations. The relative
benefits received by Company on the one hand and the holder or underwriter, as
the case may be, on the other in connection with the distribution of the
Registrable Securities shall be deemed to be in the same proportion as the total
net proceeds received by Company from the initial sale of the Registrable
Securities by Company to the purchaser bear to the gain realized by the selling
holder or the underwriting discounts and commissions received by the
underwriter, as the case may be. The relative fault of Company on the one hand
and of the holder or underwriter, as the case may be, on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission to state a material fact relates
to information supplied by Company, by the holder or by the underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided that the foregoing
contribution agreement shall not inure to the benefit of any indemnified party
if indemnification would be unavailable to such indemnified party by reason of
the proviso contained in the first sentence of subdivision (a) of this Section
3.5, and in no event shall the obligation of any indemnifying party to
contribute under this subdivision (d) exceed the amount that such indemnifying
party would have been obligated to pay by way of indemnification if the
indemnification provided for under subdivisions (a) or (b) of this Section 3.5
had been available under the circumstances.
Company and the holders of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this subdivision
(d) were determined by pro rata allocation (even if the holders and any
underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph and subdivision (c) of this
Section 3.5. The
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amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no
holder of Registrable Securities or underwriter shall be required to contribute
any amount in excess of the amount by which (i) in the case of any such holder,
the net proceeds received by such holder from the sale of Registrable Securities
or (ii) in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 3.6 RULE 144; RULE 144A. If Company shall have filed a
registration statement pursuant to Section 12 of the Exchange Act or a
registration statement pursuant to the Securities Act, Company will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder and will take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 NOTICES. All notices and other communications
provided for hereunder shall be dated and in writing and shall be deemed to have
been given (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section and telephonic confirmation of receipt
thereof is obtained or (ii) if given by mail, prepaid overnight courier or any
other means, when received at the address specified in this Section or when
delivery at such address is refused. Such notices shall be addressed to the
appropriate party to the attention of the person who executed this Agreement at
the address or telecopy number set forth under such party's signature below (or
to the attention of such other person or to such other address or telecopy
number as such party shall have furnished to each other party in accordance with
this Section 4.1).
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SECTION 4.2 BINDING NATURE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
SECTION 4.3 DESCRIPTIVE HEADINGS. The descriptive headings of
the several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 4.4 SPECIFIC PERFORMANCE. Without limiting the rights
of each party hereto to pursue all other legal and equitable rights available to
such party for the other parties' failure to perform their obligations under
this Agreement, the parties hereto acknowledge and agree that the remedy at law
for any failure to perform their obligations hereunder would be inadequate and
that each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 4.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA AND OF ANY GEORGIA STATE COURT SITTING IN XXX XXXX XX XXXXXXX XXX XXXXX
XX XXXXXXX FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 4.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 4.7 SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
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SECTION 4.8 ENTIRE AGREEMENT. This Agreement is intended by
the parties hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein. This Agreement
supersedes all prior agreement and understandings, written or oral, between the
parties with respect to such subject matter.
SECTION 4.9 AMENDMENT AND WAIVER. Any provision of this
Agreement may be amended if, but only if, such amendment is in writing and is
signed by Company and Stockholders and Warrantholders owning, or having Warrants
exercisable for, at least a majority of shares of Common Stock either then
outstanding or issuable upon the exercise of all outstanding Warrants, provided
that no such amendment may adversely affect the rights of any Warrant
Securityholder unless signed by such Warrant Securityholder. Any provision may
be waived if, but only if, such waiver is in writing and is signed by the party
or parties waiving such provision and for whose benefit such provision is
intended.
SECTION 4.10 NO THIRD PARTY BENEFICIARIES. Nothing in this
Agreement shall convey any rights upon any person or entity which is not a party
or an assignee of a party to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered under seal as of the date first above written.
THOMASTON XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxxx, President and
Chief Executive Officer
Attest: /s/ A. Xxxxxxx Xxx
-----------------------------------
A. Xxxxxxx Xxx, Vice President-Finance
Address for Notices:
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Vice President-Finance
Facsimile: (000) 000-0000
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WACHOVIA BANK, N.A.
By: /s/
------------------------
Name:
-----------------
Title:
----------------
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SUNTRUST BANK, ATLANTA
By: /s/
------------------------
Name:
-----------------
Title:
----------------
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BANK OF AMERICA, N.A.
By: /s/
------------------------
Name:
-----------------
Title:
----------------
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