Exhibit 10.2
STOCKHOLDERS' AGREEMENT
among
CORNING CONSUMER PRODUCTS COMPANY,
CCPC ACQUISITION CORP.
and
CORNING INCORPORATED
dated as of
April 1, 1998
TABLE OF CONTENTS
Page
I. INTRODUCTORY MATTERS........................................................................................ 1
1.1. Defined Terms............................................................................. 1
1.2. Construction.............................................................................. 3
II. TRANSFERS.................................................................................................. 3
2.1. Limitations on Transfer................................................................... 3
2.2. Right of First Refusal.................................................................... 4
2.3. Transfers to Affiliates................................................................... 5
2.4. Tag-Along Rights.......................................................................... 5
2.5. Drag-Along Rights......................................................................... 6
III. REGISTRATION RIGHTS....................................................................................... 7
3.1. Piggyback Rights.......................................................................... 7
3.2. Demand Registration....................................................................... 8
3.3. Other Registration-Related Matters........................................................ 8
3.4. Indemnification........................................................................... 11
IV. MISCELLANEOUS.............................................................................................. 13
4.1. Additional Securities Subject to Agreement................................................ 13
4.2. Termination............................................................................... 13
4.3. Notices................................................................................... 13
4.4. Further Assurances........................................................................ 13
4.5. Non-Assignability......................................................................... 13
4.6. Amendment; Waiver......................................................................... 14
4.7. Third Parties............................................................................. 14
4.8. Governing Law............................................................................. 14
4.9. Specific Performance...................................................................... 14
4.10. Entire Agreement.......................................................................... 14
4.11. Titles and Headings....................................................................... 14
4.12. Severability.............................................................................. 14
4.13. Counterparts.............................................................................. 14
4.14. Reporting Requirements.................................................................... 14
4.15. Representations........................................................................... 15
i
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of April 1, 1998 (this
"Agreement"), among Corning Consumer Products Company, a Delaware corporation
(the "Company"), CCPC Acquisition Corp. ("Xxxxxx"), and Corning Incorporated
("Corning").
RECITALS:
A. The Company, Borden, Borden, Inc., a New Jersey
corporation, and Corning are parties to a Recapitalization Agreement, dated as
of March 2, 1998 (the "Recapitalization Agreement"), pursuant to which, among
other things, the Company was recapitalized (the "Recapitalization");
B. Immediately following the Recapitalization, Xxxxxx held
22,080,000 shares of Common Stock and Corning held 1,920,000 shares of Common
Stock; and
C. The parties hereto wish to provide for certain matters
relating to their respective holdings of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
I. INTRODUCTORY MATTERS
1.1. Defined Terms. In addition to the terms defined elsewhere
herein, the following terms have the following meanings when used herein with
initial capital letters:
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control
with, such specified Person; provided, that (i) officers, directors or
employees of the Company will not be deemed to be Affiliates of a
stockholder of the Company for purposes hereof solely by reason of
being officers, directors or employees of the Company, and (ii) the
Corning Glass Museum and the Corning Foundation will be deemed to be
Affiliates of Corning.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Assumption Agreement" means a writing reasonably satisfactory
in form and substance to Xxxxxx whereby a Transferee of shares of
Common Stock becomes a party to, and agrees to be bound by, to the same
extent as its transferor by the terms of, this Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" means a day other than a Saturday, Sunday,
federal or New York State holiday or other day on which commercial
banks in New York City are authorized or required by law to close.
"Common Stock" means the shares of common stock, no par
value per share, of the Company.
"IPO" means the completion of an initial Public Offering and
the sale to the public of Common Stock by the Company.
"Permitted Transferees" means any Person to whom shares of
Common Stock are Transferred in a Transfer in accordance with Sections
2.2 or 2.3 or otherwise not in violation of this Agreement and who is
required to, and does, enter into an Assumption Agreement, and includes
any Person to whom a Permitted Transferee of Corning (or a Permitted
Transferee of a Permitted Transferee) so further Transfers shares of
Common Stock and who is required to, and does, become bound by the
terms of this Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or
other legal entity of any nature whatsoever.
"Public Offering" means the sale of shares of any class of the
Common Stock to the public pursuant to an effective registration
statement (other than a registration statement on Form S-4 or S-8 or
any similar or successor form) filed under the Securities Act.
"Registrable Securities" means (i) any Common Stock held by
Corning immediately following the Recapitalization, (ii) any Common
Stock issued as (or issuable upon the conversion or exercise of any
warrant, right, option or other convertible security which is issued
as) a dividend or other distribution with respect to, or in exchange
for, or in replacement of, such Common Stock, and (iii) any Common
Stock issued by way of a stock split of the Common Stock referred to in
clauses (i) or (ii) or this clause (iii). For purposes of this
Agreement, any Registrable Securities will cease to be Registrable
Securities when (A) a registration statement covering such Registrable
Securities has been declared effective and such Registrable Securities
have been disposed of pursuant to such effective registration
statement, (B) all Registrable Securities may be offered and sold
pursuant to Rule 144 (or any similar provision then in effect) under
the Securities Act in a single transaction or series of transactions
over a 90-day period, (C) such Registrable Securities are sold by a
person in a transaction in which rights under the provisions of this
Agreement are not assigned in accordance with this Agreement, or (D)
such Registrable Securities cease to be outstanding.
"Registration Expenses" means any and all expenses incident to
the performance by the Company of its obligations under Sections 3.1 or
3.2, including without limitation (i) all SEC, stock exchange, National
Association of Securities Dealers, Inc. and other comparable regulatory
agencies, registration and filing fees, (ii) all fees and expenses of
the Company in complying with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters in connection
with blue sky
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qualifications), (iii) all printing, messenger and delivery expenses of
the Company, (iv) the fees and disbursements of counsel for the Company
and of its independent accountants, including without limitation the
expenses of any "cold comfort" letters required by or incident to such
performance and compliance, and (v) fees and disbursements customarily
paid by issuers of securities (but not underwriters' or sales agents'
discounts or similar compensation).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"Stockholders" means each of the holders of Common
Stock.
"Transfer" means a transfer, sale, assignment, pledge,
hypothecation or other disposition, whether directly or indirectly
pursuant to the creation of a derivative security, the grant of an
option or other right, the imposition of a restriction on disposition
or voting or transfer by operation of law.
1.2. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. Unless the
context otherwise requires: (a) "or" is disjunctive but not exclusive, (b) words
in the singular include the plural, and in the plural include the singular, and
(c) the words "hereof", "herein", and "hereunder" and words of similar import
when used in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section references are to this
Agreement unless otherwise specified.
II. TRANSFERS
2.1. Limitations on Transfer. (a) Prior to the IPO, Corning
and its Permitted Transferees may not Transfer any shares of Common Stock other
than (i) in connection with a Public Offering effected in accordance with
Section 3.1(a), (ii) in accordance with Sections 2.3, 2.4, or 2.5 or (iii) in
accordance with Section 2.2.
(b) In the event of any purported Transfer by Corning or any
of its Permitted Transferees of any shares of Common Stock in violation of the
provisions of this Agreement, such purported Transfer will be void and of no
effect and the Company will not give effect to such Transfer.
(c) Each certificate representing shares of Common Stock
issued to Corning or any of its Permitted Transferees will bear a legend on the
face thereof substantially to the following effect (with such additions thereto
or changes therein as the Company may be advised by counsel are required by law
or necessary to give full effect to this Agreement, the "Legend"):
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A STOCKHOLDERS' AGREEMENT AMONG THE COMPANY, CCPC
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ACQUISITION CORP. AND CORNING INCORPORATED, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT.
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
The Legend will be removed by the Company by the delivery of substitute
certificates without such Legend in the event of (i) a Transfer permitted by
this Agreement and in which the Transferee is not required to enter into an
Assumption Agreement or (ii) the termination of Article II pursuant to the terms
hereof, provided however, that the second paragraph of Legend will only be
removed if at such time it is no longer required for purposes of applicable
securities laws.
2.2. Right of First Refusal. (a) Each of Corning and its
Permitted Transferees agrees that, if such Stockholder (the "Offeree") receives
a bona fide offer (a "Transfer Offer") to purchase all or any portion of the
Common Stock (the "Transfer Stock") then owned by such Offeree from any Person
(the "Offeror") other than an affiliate of such Offeree which such Offeree
wishes to accept, such Offeree shall cause the Transfer Offer to be reduced to
writing and shall provide a written notice (the "Transfer Notice") of such
Transfer Offer to the Company and Xxxxxx; provided that, there shall not be more
than four Permitted Transferees pursuant to this Section 2.2. The Transfer
Notice shall also contain an irrevocable offer to sell the Transfer Stock to the
Company and, if the Company shall decline to accept such offer, Xxxxxx (in the
manner set forth below) at a price equal to the price contained in, and upon
substantially the same terms and conditions as the terms and conditions
contained in, the Transfer Offer and shall be accompanied by a true and complete
copy of the Transfer Offer (which shall identify the Offeror, the Transfer
Stock, the price contained in the Transfer Offer and the other material terms
and conditions of the Transfer Offer). At any time within 30 days after the date
of the receipt by the Company and Xxxxxx of the Transfer Notice, the Company
shall have the option to exercise its right to purchase (or assign its right to
one of its subsidiaries) or, if the Company and its subsidiaries shall decline
to exercise such option, Xxxxxx shall have the right to exercise such option to
purchase (or assign its right to any party) all of the Common Stock covered by
the Transfer Offer at the same price and on such substantially the same terms
and conditions as the Transfer Offer. If such election is made, within 60 days
after the date of the receipt by the Company and Xxxxxx of the Transfer Notice,
the Company or Xxxxxx or one of their aforementioned assignees shall deliver a
certified bank check or checks in the appropriate amount to such Offeree against
delivery of certificates or other instruments representing the Common Stock so
purchased, appropriately endorsed by such Offeree. If the Company or Xxxxxx or
one of their aforementioned assignees has not given notice of its intention to
exercise such right to purchase within such 30 day period or has not tendered
the purchase price for such Common Stock in the manner set forth above within
such 60 day period, such Offeree shall
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be free for a period of 90 days from the end of such 30 day or 60 day period, as
the case may be, to transfer the Transfer Stock to the Offeror on terms which
are no more favorable in any material respect to the transferee than the terms
and conditions set forth in the Transfer Notice. If for any reason such Offeree
does not transfer the Transfer Stock to the Offeror on such terms and conditions
or if such Offeree wishes to sell the Transfer Stock on terms which are more
favorable in any material respect to the transferee than those set forth in the
Transfer Notice, the provisions of this Section 2.2 shall again be applicable to
the Transfer Stock.
(b) The closing of the purchase of the Transfer Stock upon
exercise of the option pursuant to Section 2.2(a) shall take place at the
principal office of the Company on a date specified by the buyer no later than
the last day of the 60 day period after the giving of the Transfer Notice.
2.3. Transfers to Affiliates. Corning and its Permitted
Transferees may Transfer any or all of the shares of Common Stock held by any of
them to any of their respective Affiliates who duly executes and delivers an
Assumption Agreement, provided that in connection therewith the Company has been
furnished with an opinion in form and substance reasonably satisfactory to the
Company of counsel reasonably satisfactory to the Company that such Transfer is
exempt from or not subject to the provisions of Section 5 of the Securities Act
and any other applicable securities laws.
2.4. Tag-Along Rights. (a) So long as this Agreement remains
in effect, with respect to any proposed Transfer by Xxxxxx of shares of Common
Stock to any Person not an Affiliate of Xxxxxx, other than in a Public Offering,
whether pursuant to a stock sale, a tender or exchange offer or a similar
transaction (any such transaction, a "Xxxxxx Sale"), Xxxxxx will have the
obligation, and each of Corning and its Permitted Transferees will have the
right, to require the proposed Transferee or acquiring Person to purchase from
each of Corning and its Permitted Transferees who exercises its rights under
Section 2.4(b) (a "Tagging Stockholder") a number of shares of Common Stock up
to the product (rounded up to the nearest whole number) of (i) the quotient
determined by dividing (A) the aggregate number of shares of Common Stock owned
by such Tagging Stockholder by (B) the aggregate number of shares of Common
Stock owned by Xxxxxx, the Tagging Stockholder and any other Stockholder
entitled to participate in such transaction, and (ii) the total number of shares
of Common Stock proposed to be directly or indirectly Transferred to the
Transferee or acquiring Person in the contemplated Xxxxxx Sale (a "Proposed
Transferee"), at the same price per share of Common Stock and upon the same
terms and conditions (including, without limitation, time of payment and form of
consideration) as to be paid and given to Xxxxxx; provided, that in order to be
entitled to exercise its right to sell shares of Common Stock to the Proposed
Transferee pursuant to this Section 2.4, each Tagging Stockholder must agree to
make to the Proposed Transferee the same representations, warranties, covenants,
indemnities and agreements as Xxxxxx agrees to make in connection with the
proposed Xxxxxx Sale; and provided, further, that no Tagging Stockholder shall
be required to make representations, warranties or covenants or provide
indemnification with respect to any matter other than its ownership of the
shares of Common Stock to be transferred, its ability to transfer such shares
free and clear of all encumbrances and its authority and due authorization to
transfer such shares. Each Tagging Stockholder will be responsible for its
proportionate share of the costs incurred in connection with the Xxxxxx Sale to
the extent not paid or reimbursed by the Company or the Proposed Transferee.
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(b) Xxxxxx will give notice to each Tagging Stockholder of
each proposed Xxxxxx Sale at least twenty Business Days prior to the proposed
consummation of such Xxxxxx Sale, setting forth the number of shares of Common
Stock proposed to be so Transferred, the name and address of the Proposed
Transferee, the proposed amount and form of consideration (and if such
consideration consists in part or in whole of property other than cash, Xxxxxx
will provide such information, to the extent reasonably available to Xxxxxx,
relating to such consideration as the Tagging Stockholder may reasonably request
in order to evaluate such non-cash consideration) and other terms and conditions
of payment offered by the Proposed Transferee, and a representation that the
Proposed Transferee has been informed of the tag-along rights provided for in
this Section 2.4. Xxxxxx will deliver or cause to be delivered to each Tagging
Stockholder copies of all transaction documents relating to the proposed Xxxxxx
Sale as the same become available. The tag-along rights provided by this Section
2.4 must be exercised by each Tagging Stockholder within five Business Days
following receipt of the notice required by the preceding sentence by delivery
of a written notice to Xxxxxx indicating the desire of such Tagging Stockholder
to exercise its, her or his rights and specifying the number of shares of Common
Stock it, she or he desires to sell. The Tagging Stockholder will be entitled
under this Section 2.4 to Transfer to the Proposed Transferee the number of
shares of Common Stock calculated in accordance with Section 2.4(a).
(c) If any Tagging Stockholder exercises his, her or its
rights under Section 2.4(a), the closing of the purchase of the Common Stock
with respect to which such rights have been exercised will take place
concurrently with the closing of the sale of Xxxxxx'x Common Stock to the
Proposed Transferee.
2.5. Drag-Along Rights. (a) So long as this Agreement remains
in effect, if Xxxxxx receives an offer from a Person other than an Affiliate of
Xxxxxx (a "Third Party") to purchase (other than in a Public Offering) at least
a majority of the shares of Common Stock then outstanding and such offer is
accepted by Xxxxxx, then each of Corning and its Permitted Transferees hereby
agrees that, if requested by Xxxxxx, it will Transfer to such Third Party on the
same terms and conditions (including, without limitation, time of payment and
form of consideration) as to be paid and given to Xxxxxx, the number of shares
of Common Stock equal to the number of shares of Common Stock owned by it
multiplied by the percentage of the then outstanding shares of Common Stock to
which the Third Party offer is applicable.
(b) Xxxxxx will give notice (the "Drag-Along Notice") to each
of Corning and its Permitted Transferees of any proposed Transfer giving rise to
the rights of Xxxxxx set forth in Section 2.5(a) as soon as practicable
following Xxxxxx'x acceptance of the offer referred to in Section 2.5(a). The
Drag-Along Notice will set forth the number of shares of Common Stock proposed
to be so Transferred, the name of the proposed Transferee or acquiring Person,
the proposed amount and form of consideration (and if such consideration
consists in part or in whole of property other than cash, Xxxxxx will provide
such information, to the extent reasonably available to Xxxxxx, relating to such
consideration as Corning and its Permitted Transferees may reasonably request in
order to evaluate such non-cash consideration), the number of shares of Common
Stock sought and the other terms and conditions of the offer; provided that none
of Corning or any Permitted Transferee shall be obligated to accept pursuant to
this Section 2.5 any consideration other than cash, cash equivalents, marketable
securities, securities with registration rights similar to those contemplated in
Section 3.1 or securities which may be Transferred pursuant to Rules 144 or
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145 (or any successor rules) under the Securities Act. Xxxxxx will notify
Corning and its Permitted Transferees at least ten Business Days in advance of
entering into a definitive agreement in connection with such offer. In any such
agreement, Corning and its Permitted Transferees will be required (i) to make or
agree to the same representations, warranties and indemnities as Xxxxxx so long
as they are made severally and not jointly (provided that Corning and its
Permitted Transferees will not be required to make representations, warranties
or covenants or provide indemnification with respect to any matter other than
their respective ownership of the shares of Common Stock to be transferred,
their respective ability to transfer such shares free and clear of all
encumbrances and their respective authority and due authorization to transfer
such shares), and (ii) to pay their proportionate share of the costs incurred in
connection with such Xxxxxx Sale to the extent not paid or reimbursed by the
Company or the Transferee or acquiring Person. If the Transfer referred to in
the Drag-Along Notice is not consummated within 90 days from the date of the
Drag-Along Notice, Xxxxxx must deliver another Drag-Along Notice in order to
exercise its rights under this Section 2.5 with respect to such Transfer or any
other Transfer.
III. REGISTRATION RIGHTS
3.1. Piggyback Rights. (a) Each time the Company is planning
to file a registration statement under the Securities Act in connection with the
sale of Common Stock by (i) the Company (other than in connection with an IPO or
a registration statement on Forms S-4 or S-8 or any similar or successor form)
or (ii) Xxxxxx (the Company or Xxxxxx in such case, the "Initiating Party"), the
Company will give prompt written notice thereof to Corning and its Permitted
Transferees at least 15 Business Days prior to the anticipated filing date of
such registration statement. Upon the written request of Corning and any
Permitted Transferee made within 10 Business Days after the receipt of any such
notice from the Company, which request will specify the Registrable Securities
(such securities, together with any other shares of Common Stock requested to be
included in such registration statement by any other Person pursuant to similar
registration rights, the "Piggy-Back Shares") intended to be disposed of by
Corning or such Permitted Transferee in such offering, the Company will use
reasonable efforts to effect the registration under the Securities Act of all
Piggy-Back Shares which the Company has been so requested to register by Corning
or such Permitted Transferee to the extent required to permit the disposition of
the Piggy-Back Shares to be registered; provided, that (x) 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, any Initiating Party determines for any reason not to proceed with
the proposed registration, the Company may at its election give written notice
of such determination to each holder of Piggy-Back Shares and thereupon will be
relieved of its obligation to register any Piggy-Back Shares in connection with
such registration, and (y) if such registration involves an underwritten
offering, each such holder must sell its shares to the underwriters on the same
terms and conditions as apply to the Initiating Parties.
(b) If a registration pursuant to this Section 3.1 involves an
underwritten offering and the managing underwriter or underwriters advise the
Company in writing that, in their opinion, (i) the number of securities which
the Initiating Party intends to include in such registration, together with the
Piggy-Back Shares, exceeds the largest number of such securities which can be
sold in such offering without having an adverse effect on such offering
(including, but not limited to, the price at which such securities can be sold)
or (ii) the inclusion of the Piggy-Back Shares in such registration would have
an adverse effect on
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such offering, then the Company will include in such registration (A) first,
100% of the securities proposed to be sold by the Company and (B) second, to the
extent that the number of securities requested to be included in such
registration can, in the opinion of such managing underwriter, be sold without
having the adverse effect referred to above, the number of securities which
Xxxxxx and the holders of Piggy-Back Shares have requested to be included in
such registration, such amount to be allocated pro rata among Xxxxxx and all
such holders on the basis of the relative number of securities then held by
Xxxxxx and each such holder (provided that any securities thereby allocated to
Xxxxxx or any such holder that exceed the request of Xxxxxx or such holder will
be reallocated among Xxxxxx and the remaining requesting holders in like
manner).
3.2. Demand Registration. From and after 180 days following
the completion of the IPO, Corning and/or any Permitted Transferee (the
"Requesting Holders") may request in a written notice (the "Request") that the
Company effect the registration under the Securities Act of all or any part of
the Registrable Securities owned by the Requesting Holders if at such time such
Registrable Securities represent more than 5% of the outstanding Common Stock;
provided that if such shares represent less than 5% of the outstanding Common
Stock solely because of issuances of additional shares of Common Stock following
the date hereof, the Company shall be required to register all the Registrable
Securities then owned by the Requesting Holders if at such time such Registrable
Securities represent more than 3% of the outstanding Common Stock. Following the
receipt of the Request, the Company will, as expeditiously as practicable, use
reasonable efforts to effect the registration under the Securities Act of any or
all Registrable Securities of the Requesting Holders as are specified in the
Request and will cause such registration statement to remain effective for a
period of not less than 180 days; provided, however, that the Company will not
be required to effect more than one registration pursuant to this Section 3.2.
The Company will select the managing underwriter of any underwritten offering
effected under this Section 3.2, which will be reasonably acceptable to the
Requesting Holders.
3.3. Other Registration-Related Matters. (a) If the Board
determines that the registration and distribution of Registrable Securities (A)
could impede, delay or interfere with any pending material financing,
acquisition, corporate reorganization or other significant transaction involving
the Company or (B) could require disclosure of non-public material information,
the disclosure of which could adversely affect the Company, the Company will
promptly give the Requesting Holders written notice of such determination and
will be entitled to postpone the filing or effectiveness of a registration
statement for a reasonable period of time not to exceed 180 calendar days in any
calendar year (a "Section 3.3(a) Period"); provided, however, that in connection
therewith the Company will be required to deliver to the Requesting Holders a
general statement, signed by the chief financial officer of the Company,
describing in reasonable detail the reasons for such postponement or restriction
on use and an estimate of the anticipated delay. The Company will promptly
notify the Requesting Holders of the expiration or earlier termination of a
Section 3.3(a) Period.
(b) The Company may require any Person that is selling shares
of Common Stock in a Public Offering pursuant to Sections 3.1 or 3.2 (each a
"Holder") to furnish to the Company in writing such information regarding such
Person and the distribution of the shares of Common Stock which are included in
a Public Offering as may from time to time reasonably be requested in writing in
order to comply with the Securities Act.
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(c) The Company will pay all Registration Expenses in
connection with each registration or proposed registration of Registrable
Securities pursuant to Sections 3.1 or 3.2. Notwithstanding the foregoing, (y)
the fees or expenses of counsel to the Holders or of any other expert hired
directly by the Holders will be the sole responsibility of the Holders and (z)
the Holders will be responsible for their respective pro rata shares (determined
by reference to the number of shares included in the applicable registration) of
all underwriting discounts and commissions and transfer taxes.
(d) No later than ten days before the first filing of a
registration statement pursuant to Section 3.2 and before filing any other
registration statement or prospectus, or any amendments or supplements thereto,
in connection with any registration or proposed registration of Registrable
Securities pursuant to Sections 3.1 or 3.2, the Company will furnish to counsel
of the Holders copies of all documents proposed to be filed.
(e) The Company will furnish to each Holder such number of
copies of the applicable registration statement and of each amendment or
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities by such Holder.
(f) The Company will use reasonable efforts to register or
qualify Registrable Securities covered by a registration statement under such
other securities or blue sky laws of such jurisdictions as each Holder
reasonably requests, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, except that the Company will not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this Section 3.3(f), it would not 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.
(g) The Company will use reasonable efforts to cause the
Registrable Securities covered by a registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary to enable the Holder thereof to consummate the disposition thereof.
(h) The Company will notify each Holder of Registrable
Securities covered by a registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act promptly
after the Company becomes aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such Holder, prepare and
furnish to such Holder a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will 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 than existing.
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(i) The Company will enter into such customary agreements
(including an underwriting agreement in customary form) and take such other
actions as sellers of a majority of securities covered by a registration
statement or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities.
(j) The Company will make available for inspection by any
Holder of Registrable Securities covered by a registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such Holder or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney, accountant or
agent in connection with such registration statement.
(k) The Company will obtain a "cold comfort" letter or letters
from the Company's independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters as the sellers
of a majority of the securities covered by the registration statement reasonably
requests.
(l) Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.3(h), such Holder will forthwith discontinue disposition of securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the amended or supplemented
prospectus contemplated by Section 3.3(h) and, if so directed by the Company,
such Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event the Company gives any such notice, the period for
which the Company will be required to keep the registration statement effective
will be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 3.3(h) to and including
the date when each Holder has received the copies of the supplemented or amended
prospectus contemplated by Section 3.3(h).
(m) Each Holder will, in connection with an offering of the
Company's securities, upon the request of the Company or of the underwriters
managing any underwritten offering of the Company's securities, agree in writing
not to effect any sale, disposition or distribution of Registrable Securities
(other than those included in the registration or in a private sale to a third
party that is otherwise in accordance with the terms of this Agreement if such
third party agrees to be bound by this Agreement, including this clause (m))
without the prior written consent of the managing underwriter for such period of
time (not to exceed 180 days) from the effective date of such registration as
the Company or the underwriters may specify.
3.4. Indemnification. (a) Indemnification by the Company. In
the event of any registration of any securities of the Company under the
Securities Act pursuant to Sections 3.1 or 3.2, the Company hereby indemnifies
and agrees to hold harmless, to the extent permitted by law, each Holder of
Registrable Securities covered by such registration statement, each Affiliate of
such Holder and their respective directors and officers or general and limited
partners (and the directors, officers, affiliates and controlling Persons
thereof),
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each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such Holder or any
such underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses to which such Indemnified Party may
become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Party is a party thereto) arise
out of or are based upon (i) 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, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(ii) 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
in the light of the circumstances then existing, and the Company will reimburse
such Indemnified Party for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, that the Company will not be liable to any
Indemnified Party 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 any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, in any such
preliminary, final or summary prospectus, or any amendment or supplement thereto
in reliance upon and in conformity with written information with respect to such
Indemnified Party furnished to the Company by such Indemnified Party for use in
the preparation thereof; and provided, further, that the Company will not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 3.4 with respect to any preliminary prospectus or the
final prospectus or the final prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, claim, damage or liability of such
underwriter or controlling Person results from the fact that such underwriter
sold Registrable Securities to a Person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented, whichever
is most recent, if the Company has previously furnished copies thereof to such
underwriter. Such indemnity will remain in full force and effect regardless of
any investigation made by or on behalf of such Holder or any Indemnified Party
and will survive the Transfer of such securities by such Holder.
(b) Indemnification by the Holders and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed in accordance with Sections 3.1 or 3.2, that
the Company shall have received an undertaking reasonably satisfactory to it
from the Holder of such Registrable Securities or any prospective underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.4(a)) the Company, all other Holders or any prospective
underwriter, as the case may be, and any of their respective Affiliates,
directors, officers and controlling Persons, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with written
information with respect to such Holder or underwriter furnished to the Company
by such Holder or underwriter expressly for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a
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document incorporated by reference into any of the foregoing. Such indemnity
will remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the Holders, or any of their respective
affiliates, directors, officers or controlling Persons and will survive the
Transfer of such securities by such Holder.
(c) Notices of Claims. Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 3.4, 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 the
indemnified party to give notice as provided herein will not relieve the
indemnifying party of its obligations under Section 3.4(a) or 3.4(b), 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 will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably 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 will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. If, in such
indemnified party's reasonable judgment, having common counsel would result in a
conflict of interest between the interests of such indemnified and indemnifying
parties, then such indemnified party may employ separate counsel reasonably
acceptable to the indemnifying party to represent or defend such indemnified
party in such action, it being understood, however, that the indemnifying party
will not be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time for all such indemnified parties (and not
more than one separate firm of local counsel at any time for all such
indemnified parties) in such action. No indemnifying party will consent to entry
of any judgment or enter into any settlement 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 of such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that
specified in this Section 3.4 (with appropriate modifications) will be given by
the Company and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities Act.
(e) Contribution. If recovery is not available under the
foregoing indemnification provisions of this Section 3.4 for any reason other
than as expressly specified therein, the parties required to provide to
indemnification by the terms thereof will contribute to liabilities and expenses
of the indemnified party except to the extent that contribution is not permitted
under Section 11(f) of the Securities Act. In determining the amount of
contribution to which the respective parties are entitled, consideration will be
given to the relative benefits received by each party from the offering of the
Registrable Securities (taking into account the portion of the proceeds realized
by each), the parties' relative knowledge and access to information concerning
the matter with respect to which the
12
claim was asserted, the opportunity to correct and prevent any misstatement or
omission and any other equitable considerations appropriate under the
circumstances.
(f) Non-Exclusivity. The obligations of the parties under this
Section 3.4 will be in addition to any liability which any party may otherwise
have to any other party.
IV. MISCELLANEOUS
4.1. Additional Securities Subject to Agreement. Each of
Corning and its Permitted Transferees agrees that any other equity securities of
the Company which it hereafter acquires by means of a stock split, stock
dividend, or distribution will be subject to the provisions of this Agreement to
the same extent as if held on the date hereof.
4.2. Termination. The provisions of this Agreement specified
below will terminate and be of no further force and effect (other than with
respect to prior breaches) as follows: (i) with respect to Sections 2.1, 2.2,
2.3, 2.4, 2.5, and 4.14 upon completion of an IPO; (ii) with respect to Sections
3.1, 3.2 and 3.3, at such time as Corning owns no Registrable Securities; (iii)
with respect to Section 3.4, upon the expiration of the applicable statutes of
limitations; and (iv) with respect to all other Sections of this Agreement, at
such time as all Sections of this Agreement other than such other Sections have
terminated.
4.3. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the addresses set forth in Section 11.02 of the
Recapitalization Agreement (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 4.3).
4.4. Further Assurances. The parties hereto will sign such
further documents, cause such meetings to be held, resolutions passed, exercise
their votes and do and perform and cause to be done such further acts and things
as may be necessary in order to give full effect to this Agreement and every
provision hereof.
4.5. Non-Assignability. This Agreement will inure to the
benefit of and be binding on the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by any party hereto
without the express prior written consent of the other parties, and any
attempted assignment, without such consents, will be null and void; provided,
however, that Xxxxxx may assign or delegate its rights hereunder to any
Affiliate of Xxxxxx so long as such Affiliate executes and delivers to the
Company an Assumption Agreement satisfactory to the Company.
4.6. Amendment; Waiver. This Agreement may be amended,
supplemented or otherwise modified only by a written instrument executed by the
parties hereto. No waiver by any party of any of the provisions hereof will be
effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including without limitation, any investigation by or on
behalf of any party, will be deemed to constitute a waiver by the party taking
such action of compliance with any covenants or agreements contained herein. The
13
waiver by any party hereto of a breach of any provision of this Agreement will
not operate or be construed as a waiver of any subsequent breach.
4.7. Third Parties. This Agreement does not create any rights,
claims or benefits inuring to any person that is not a party hereto nor create
or establish any third party beneficiary hereto.
4.8. Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the principles of conflict of laws thereof.
4.9. Specific Performance. Without limiting or waiving in any
respect any rights or remedies of the parties hereto under this Agreement now or
hereinafter existing at law or in equity or by statute, each of the parties
hereto will be entitled to seek specific performance of the obligations to be
performed by the other in accordance with the provisions of this Agreement.
4.10. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof.
4.11. Titles and Headings. The section headings contained in
this Agreement are for reference purposes only and will not affect the meaning
or interpretation of this Agreement.
4.12. Severability. If any provision of this Agreement is
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement will not be affected and
will remain in full force and effect.
4.13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original and all
of which together will be deemed to be one and the same instrument.
4.14. Reporting Requirements. (a) So long as the Company is
not subject to the reporting requirements under Section 12 or 15 of the
Securities Exchange Act of 1934, as amended, as promptly as practicable, but in
no event later than 90 days after the end of each fiscal year ending after the
date hereof or 30 days after the end of each fiscal quarter ending after the
date hereof, as the case may be, the Company shall furnish to Corning true and
correct copies of (i) in the case of any such fiscal year, the audited
consolidated balance sheets and the related audited consolidated statements of
income and cash flows of the Company and its subsidiaries as of the last day of
and for the fiscal year then ended, together with the accompanying report of the
Company's auditors thereon, and (ii) to the extent available, in the case of
each fiscal quarter, the unaudited consolidated balance sheets and related
unaudited consolidated statements of income and cash flows of the Company and
its subsidiaries for the fiscal quarter then ended, which financial statements
shall be prepared in accordance with United States generally accepted accounting
principles (in each case, together with any notes relating thereto).
(b) In the event that the Company is not preparing financial
statements described in clause (ii) of paragraph (a) above, then as promptly as
practicable, the Company will deliver to Corning true and complete copies of
such other regularly-prepared financial
14
statements, reports and analyses as may be prepared by the Company or any
subsidiary thereof relating to the business or operations of the Company or any
subsidiary thereof.
(c) Corning agrees to keep confidential all nonpublic
information made available to Corning pursuant to this Section 4.14; provided,
however, that Corning will not be required to maintain as confidential any such
information that (a) becomes generally available to the public other than as a
result of a disclosure by Corning or (b) is required to be disclosed pursuant to
the terms of a valid subpoena or order by governmental authority or other legal
requirement.
4.15. Representations. Each of the parties hereto represents
that this Agreement has been duly executed and delivered by such party and
constitutes a legal, valid and binding obligation of such party enforceable
against it in accordance with the terms of this Agreement.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
CORNING CONSUMER PRODUCTS COMPANY
By:
-----------------------------
Name:
Title:
CCPC ACQUISITION CORP.
By:
-----------------------------
Name:
Title:
CORNING INCORPORATED
By:
-----------------------------
Name:
Title:
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