AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT ("Agreement"), dated March 13, 1997, is between
Swing-N-Slide Corp., a Delaware corporation (the "Company"), and
GreenGrass Holdings, a Delaware general partnership ("Purchaser").
WHEREAS, pursuant to a Transaction Agreement, dated January 4,
1996, between the Company and Purchaser, as amended by Amendment No. 1
thereto (the "Transaction Agreement"), Purchaser purchased 3,510,000
shares of the Company's common stock, par value $.01 per share ("Initial
Common Stock") and invested, in accordance with the Transaction Agreement,
$5,000,000 through the purchase of the Company's authorized 10%
Convertible Debentures due 2004 (the "Debenture"); and
WHEREAS, pursuant to the Transaction Agreement, the Company and
Purchaser entered into a Registration Rights Agreement dated February 15,
1996;
WHEREAS, pursuant to an Investment Agreement, dated March 13,
1997, between the Company and Purchaser, Purchaser will purchase, in
accordance with the Investment Agreement, shares of the Company's common
stock, par value $.01 per share ("Additional Common Stock"), and a
$2,500,000 Bridge Note ("Bridge Note") and shall be granted, in accordance
with the Investment Agreement, a Warrant for 50,000 shares of Company's
common stock, par value $.01 per share ("Warrant"); and
WHEREAS, the Company and Purchaser wish to amend the
Registration Rights Agreement to include the securities of Company issued
pursuant to the Investment Agreement and to make certain other
modifications therein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) The term "Commission" shall have the meaning assigned
thereto in Section 2(a) of this Agreement.
(b) The term "Demand Notice" shall have the meaning assigned
thereto in Section 2(a) of this Agreement.
(c) The term "Demand Registration" shall have the meaning
assigned thereto in Section 2(a) of this Agreement.
(d) The term "Demand Request Notice" shall have the meaning
assigned thereto in Section 2(a) of this Agreement.
(e) The term "Demanding Shareholders" shall have the meaning
assigned thereto in Section 2(a) of this Agreement.
(f) The term "LLC Investor Designee" means GreenGrass Capital
LLC, GreenGrass Capital II, LLC, GreenGrass Holdings any member of
GreenGrass Capital LLC as designated by GreenGrass Capital LLC and any
member of GreenGrass Capital II, LLC as designated by GreenGrass Capital
II, LLC.
(g) The term "LLC Investor Party" means each of GreenGrass
Capital LLC, GreenGrass Capital II, LLC and GreenGrass Management LLC, a
Delaware limited liability company.
(h) The term "LLC Permitted Transferee" means any transferee of
an LLC Investor Designee.
(i) The term "Maximum Number" shall have the meaning assigned
thereto in Section 5(a) of this Agreement.
(j) The term "Person" means any unincorporated organization,
association, corporation, individual, sole proprietorship, partnership,
joint venture, trust institution, entity, party or government (including
any instrumentality, division, agency, body or department thereof).
(k) The term "Piggyback Registration" shall have the meaning
assigned thereto in Section 3(a) of this Agreement.
(l) The term "Registrable Securities" shall have the meaning
assigned thereto in Section 2(b) of this Agreement.
(m) The term "Registration Statement" shall have the meaning
assigned thereto in Section 2(a) of this Agreement.
(n) The term "Securities Act" means the Securities Act of 1933,
as amended.
(o) The term "Shareholders" means each initial party to this
Agreement, other than the Company, and Persons to whom Shares are
hereafter Transferred and who are required to join in and agree to be
bound by this Agreement as a condition of such Transfer.
(p) The term "Shares" means, collectively, all shares of
Initial Common Stock, all shares issued pursuant to the Debenture, all
shares of Additional Common Stock, all shares of common stock of the
Company to be issued under the Bridge Note and all shares of common stock
of the Company issuable upon exercise of the Warrant.
(q) The term "Transfer" means any transfer, sale, assignment,
irrespective of whether any of the foregoing are effected voluntarily or
involuntarily, by operation of law or otherwise, or whether inter vivos or
upon death.
Section 2. Demand Registrations.
(a) Subject to the remaining provisions of this Agreement, from
and after the date hereof, each LLC Investor Designee may deliver a
written notice to the Company (a "Demand Notice") requesting that the
Company register all or part of the Registrable Securities (as defined in
Section 2(b) below) held by any or all of the LLC Investor Parties (the
"Demanding Shareholders") (any such registration being referred to as a
"Demand Registration"). Each Demand Notice shall state (i) the names of
the Demanding Shareholders, (ii) the aggregate number of Registrable
Shares held by each Demanding Shareholder and (iii) with respect to each
Demanding Shareholder, the number of Registrable Shares that such
Demanding Shareholder is requesting that the Company register pursuant to
such Demand Notice. Upon receipt of a Demand Notice given pursuant to
this Section 2(a), the Company shall, as soon as possible, (x) deliver
written notice to each of the other Shareholders (a "Demand Request
Notice") stating that the Company has received a Demand Notice and setting
forth the identity of the Demanding Shareholders, (y) use its best efforts
to file with the Securities and Exchange Commission (the "Commission") a
registration statement in an appropriate form covering all Registrable
Securities specified in such Demand Notice (such registration and any
registration statement referred to in Section 3 being referred to herein
as a "Registration Statement") and (z) use its best efforts to cause such
Registration Statement to become effective under the Securities Act.
Notwithstanding any other provisions of this Agreement, there shall not be
more than four (4) Demand Registrations pursuant to this Agreement, and
all of the LLC Investor Designees, collectively, shall be entitled to such
four (4) Demand Registrations.
(b) For purposes of this Agreement, the term "Registrable
Securities" shall mean any Shares (now owned or hereafter acquired) held
by any Shareholder or LLC Permitted Transferee.
(c) Any registration initiated by an LLC Investor Designee as a
Demand Registration pursuant to this Section 2 shall not, for purposes of
this Section 2, count as a Demand Registration (i) unless and until such
Registration Statement shall have been filed with the Commission, become
effective (unless such Registration Statement fails to become effective as
a result of the Demanding Shareholders not including Registrable
Securities therein) and remain effective for the shorter of (x) such
period as it shall take to sell all such Registrable Securities covered by
such Registration Statement and not withdrawn from registration or (y) 90
days following the date of effectiveness, as such period may be extended
pursuant to Section 3(b), or (ii) if the Demanding Shareholders have
elected to withdraw such Demand Registration pursuant to Section 5(b) as a
result of any allocations made pursuant to Section 5.
(d) The Company shall be entitled to postpone for a reasonable
period of time (not to exceed one hundred eighty (180) days) the filing or
effectiveness of any Registration Statement filed pursuant to a Demand
Registration, if (i) at the time it receives a Demand Notice with respect
to such Demand Registration, the Company is conducting or is about to
conduct an offering of Shares or any other securities of the Company or
any of its Subsidiaries (whether a primary or a secondary offering) and
the Company is advised by its investment banker (whether or not such
offering is being underwritten) that such offering would be materially
adversely affected by such Demand Registration, and the Company delivers
written evidence of such advice to the holders of the Registrable
Securities requesting such Demand Registration or (ii) the Board of
Directors of the Company shall determine in good faith that such Demand
Registration will materially adversely interfere with a pending or
contemplated material financing, merger, sale of assets, recapitalization
or other material transaction involving the Company, and the Company
delivers a certificate of an executive officer of the Company confirming
such determination to the holders of the Registrable Securities requesting
such Demand Registration. If any Demand Registration is postponed
pursuant to this Section 2(d), the holders of the Registrable Securities
requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will
not count as a Demand Registration.
Section 3. Piggyback Registrations.
(a) If, at any time, the Company determines to file with the
Commission a registration statement covering any equity securities to be
issued or sold by the Company (other than in connection with an employee
benefit plan or a litigation settlement) or any shareholders of the
Company, the Company shall (at least sixty (60) days prior to the filing
of such proposed Registration Statement) notify each Shareholder in
writing of the proposed Registration Statement, such notification to
describe in detail the proposed registration (including those
jurisdictions where registration is required under state securities laws).
If one or more of the Shareholders requests the Company in writing, within
thirty (30) days of the receipt of such notification from the Company, to
include in such Registration Statement any of such Shareholder's Shares,
then, subject to the remaining provisions hereof, the Company will use its
best efforts to include those Shares in the Registration Statement and to
have the Registration Statement declared effective (any such registration
being referred to as a "Piggyback Registration"). Each such request by a
Shareholder shall specify the number of Shares intended to be offered and
sold by such Shareholder, shall express such Shareholder's present intent
to offer such Shares for distribution, shall describe the nature or method
of the proposed offer and sale thereof and shall contain the undertaking
of such Shareholder to provide all such information and materials and take
all such action as may be requested in order to permit the Company to
comply with all applicable requirements of the Commission and to obtain
acceleration of the effective date of such Registration Statement. The
Company, at its sole option, may elect not to proceed with the
Registration Statement which is the subject of such notice.
(b) The Company shall use its best efforts to maintain the
effectiveness of a Registration Statement filed pursuant to Section 2 or
this Section 3 for a period of ninety (90) days from its effective date
and to cause the Registration Statement to remain current (including the
filing of necessary supplements or post-effective amendments) during the
period commencing on the initial effective date of such Registration
Statement and ending on the date on which such Registration Statement
shall have remained effective for ninety (90) days; provided, however,
that such ninety (90) day period shall be extended for a period of time
equal to the period the Shareholder shall refrain from selling any Shares
included in such Registration Statement at the request of an underwriter
of Shares (other than an underwriter chosen by such Shareholder) or
pursuant to the terms of Section 3(f) hereof.
(c) Whenever the Company is required pursuant to Sections 2 and
3(a) to register Shares under the Securities Act, the Company will furnish
to each participating Shareholder such number of copies of any prospectus
(including any preliminary or summary prospectus) and any amendment or
supplement to the prospectus and such other documents as such Shareholder
may reasonably request in order to effect the offering and sale of the
Shares to be offered and sold by such Shareholder, but only while the
Company is required under the provisions hereof to cause the Registration
Statement to remain current.
(d) The Company's obligations to effect registration of Shares
for Shareholders pursuant to Sections 2 or 3 shall include such
qualification under applicable blue sky or other state securities laws as
may be necessary to enable the Shareholders on whose behalf such
registration is to be effected to offer and sell the Shares which are the
subject matter of their requests; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not then qualified or to
qualify as a broker dealer or to file any general consent to service of
process.
(e) In the event that the offering of Registrable Securities is
to be made by or through an underwriter, the Company shall enter into a
customary underwriting agreement with a managing underwriter or
underwriters.
(f) The Company and the Shareholder whose shares are being
registered shall enter into a customary indemnification agreement in form
satisfactory to each.
(g) If the Company has delivered preliminary or final
prospectuses to the selling shareholders and after having done so the
prospectus is amended to comply with the requirements of the Securities
Act, the Company shall promptly notify the selling shareholders and, if
requested, the selling shareholders shall immediately cease making offers
of Registrable Securities and return all prospectuses to the Company. The
Company shall promptly provide the selling shareholders with revised
prospectuses and, following receipt of the revised prospectuses, the
selling shareholders shall be free to resume making offers of the
Registrable Securities.
Section 4. Manner of Offering.
(a) All offerings of Registrable Securities by Shareholders in
a Piggyback Registration shall be made pursuant to a prescribed plan of
distribution reasonably satisfactory to the Company; however, if any
Shares to be sold pursuant to such Piggyback Registration are to be sold
on a firm commitment basis through underwriters, the Company may require
all Shareholders selling Shares pursuant to such Piggyback Registration to
sell their shares on such basis through such underwriters.
(b) The Company shall not be required to offer securities on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act,
or otherwise.
Section 5. Allocations.
(a) In the event that the managing underwriter for any Demand
Registration or Piggyback Registration (or, the Company, in the case of
any offering not being underwritten) determines that it is able to proceed
with the proposed offering only with respect to a smaller number (the
"Maximum Number") of Shares than the total number of Shares proposed to be
offered by the LLC Investor Parties (in the case of Demand Registration)
or proposed to be offered by the Company and all others entitled to
registration rights in connection with such offering (in the case of a
Piggyback Registration), then (i) in the case of a Demand Registration,
the aggregate number of Shares that may be offered by the LLC Investor
Parties shall equal the Maximum Number, which shall be allocated among the
LLC Investor Parties pro rata in accordance with the number of Registrable
Shares owned by each LLC Investor Party which are proposed to be included
in such Demand Registration, and (ii) in the case of Piggyback
Registration, the aggregate number of Shares owned by the LLC Investor
Parties and the total number of Shares proposed to be offered by all other
holders offering Shares to be included in such Registration Statement
shall equal the Maximum Number less the number of Shares proposed to be
offered by the Company, such difference to be allocated pro rata in
accordance with the number of Shares proposed to be offered by each such
party.
(b) In the event that the number of Shares to be offered by the
Demanding Shareholders in any Demand Registration is to be reduced as a
result of the application of Section 2(a) hereof, a majority in interest
of the Demanding Shareholders may withdraw such Demand Registration.
Section 6. Lock-Ups. After receipt of any Demand Request
Notice pursuant to Section 2 hereof, no holder of Registrable Securities
shall sell or offer to sell any securities of the Company until the
earlier of the effective date of the Registration Statement in respect of
which such notice was given or ninety (90) days after the date such notice
was given. To the extent requested by the managing underwriter in respect
of an offering of securities of the Company (whether or not holders of
Registrable Securities are including any of such securities therein), each
holder of Registrable Securities shall agree to refrain from selling or
offering to sell, any securities of the Company for up to one hundred
twenty (120) days after the effective date of any registration statement
in connection with the public offering of its equity securities (other
than any registrations on Forms S-4 or S-8 or any form substituting
therefor).
Section 7. Expenses. All expenses incurred in connection with
any Demand Registration or Piggyback Registration, including, without
limitation, all Commission registration fees, blue sky filing fees and
expenses, printing expenses (excluding the printing of any agreements,
memoranda or other documents pertaining solely to the sale of Shares by
Shareholders) and fees and disbursements of experts used by the Company in
connection with such registration, shall, subject to requirements of any
applicable regulatory agency, be borne by the Company. Each participating
Shareholder shall bear the fees and disbursements of its own legal
counsel, underwriting or brokerage discounts and commissions, and transfer
taxes, on the sale of its Shares.
Section 8. Other Registration Rights. Nothing contained in
this Agreement shall limit the Company's right to (i) grant to any Person
the right to require the Company to register on demand any Shares or other
securities of the Company, (ii) grant any piggyback or other registration
rights to any Person with respect to Shares or any other securities of the
Company, including, without limitation, Piggyback Registration rights
relating to Demand Registrations, or (iii) include, for the Company's own
account, Shares or any other securities of the Company in any Demand
Registration, provided, however, that no such rights granted to any Person
may be superior to, or conflict with, the rights granted the LLC Investor
Designees or the other Shareholders herein. Notwithstanding anything to
the contrary contained in this Agreement, the Company may grant
registration rights to the holders of warrants issued pursuant to those
certain Securities Purchase Agreements, dated March 13, 1997, by and among
the Company, Newco, Inc. and the purchasers named therein, and no
registration rights granted pursuant to this Agreement shall be superior
to or in any way limit the registration rights granted to the holders of
such warrants.
Section 9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof.
Any amendments to this Agreement must be made in writing and duly executed
by each of the parties entitled to adopt said amendment as provided herein
or by an authorized representative or agent of each such party.
(b) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their heirs,
representatives, successors and permitted assigns.
(c) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(d) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
(e) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
(f) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and
schedules hereto will be governed by the internal law of Delaware (without
regard to any rules or principles of conflict of laws that might result in
the application of the laws of another jurisdiction).
(g) Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this
Agreement will be in writing and will be deemed to have been given when
delivered personally or mailed by certified or registered mail, return
receipt requested and postage prepaid, to the recipient. Such notices,
demands and other communications will be sent to each holder of
Registrable Securities at the address set forth in the records of the
Company with respect to such holder and to the Company at its principal
executive office or, in each case, to such other address or to the
attention of such other person as the recipient party has specified by
prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
SWING-N-SLIDE CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President/C.E.O.
GREENGRASS HOLDINGS
By: GreenGrass Capital LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx,
Attorney-in-Fact
