EXHIBIT 99.1
EXECUTION COPY
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated as of August 12, 1998, by and between
Sunbeam Corporation, a Delaware corporation ("Sunbeam" or the "Company"),
and Coleman (Parent) Holdings Inc., a Delaware corporation ("Coleman
Parent").
For the purposes of this Agreement, Sunbeam, together with each direct
or indirect parent, subsidiary, division, or affiliated corporation or
entity, and each employee, agent, attorney, representative, administrator,
executor, receiver, officer, director, or stockholder of any such
corporation or entity, and any other person, firm, corporation or entity
now or hereafter affiliated in any manner with any of them or claiming
through or in the right of any of them and all of their respective
predecessors, successors, assigns, heirs, executors and administrators (but
excluding for all purposes under this Agreement, Xx. Xxxxxx X. Xxxxxx,
former Chief Executive Officer of Sunbeam, Xx. Xxxxxxx X. Xxxxx, former
Executive Vice President of Sunbeam, Xxxxxx Xxxxxxxx LLP, Sunbeam's
independent auditors, PriceWaterhouseCoopers, consultants to Sunbeam, and
any financial advisor to Sunbeam, and each employee, agent, attorney,
representative, administrator, executor, receiver, officer, director, or
stockholder of any such corporation or entity, and any other person, firm,
corporation or entity now or hereafter affiliated in any manner with any of
them or claiming through or in the right of any of them and all of their
respective predecessors, successors, assigns, heirs, executors and
administrators), are collectively hereinafter referred to as the "Sunbeam
Group"; and Coleman Parent, together with each direct or indirect parent,
subsidiary, division, or affiliated corporation or entity, and each
employee, agent, attorney, representative, administrator, executor,
receiver, officer, director, or stockholder of any such corporation or
entity, and any other person, firm, corporation or entity now or hereafter
affiliated in any manner with any of them or claiming through or in the
right of any of them and all of their respective predecessors, successors,
assigns, heirs, executors and administrators, are collectively hereinafter
referred to as the "Coleman Group".
W I T N E S S E T H
WHEREAS, CLN Holdings Inc., a Delaware corporation ("CLN Holdings"),
was the indirect beneficial owner of approximately 82% of the outstanding
common stock, par value $.01 per share (the "Coleman Common Stock"), of The
Xxxxxxx Company, Inc., a Delaware corporation ("Coleman"); and
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 27, 1998 (the "Holdings Merger Agreement"), by and among Sunbeam,
Laser Acquisition Corp., a Delaware corporation and, as of such date, a
wholly owned subsidiary of Sunbeam ("Laser Acquisition"), CLN Holdings, as
of such date, a wholly owned subsidiary of Coleman Parent, and Coleman
Parent, CLN Holdings was merged with and into Laser Acquisition (the
"Holdings Merger"), with the surviving corporation becoming an indirect
wholly owned subsidiary of Sunbeam, and pursuant to which Coleman Parent
received certain shares of common stock, par value $.01 per share, of
Sunbeam ("Sunbeam Common Stock"); and
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 27, 1998 (the "Coleman Merger Agreement"), by and among Sunbeam,
Camper Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Sunbeam ("Camper Acquisition"), and Coleman, Camper
Acquisition is to be merged with and into Coleman (the "Coleman Merger"),
with the surviving corporation becoming an indirect wholly owned subsidiary
of Sunbeam; and
WHEREAS, as a result of the Holdings Merger, Sunbeam acquired an
indirect approximately 82% interest in Coleman (the "Coleman Acquisition");
and
WHEREAS, Sunbeam and Coleman Parent are parties to a Registration
Rights Agreement, dated as of March 29, 1998 (the "Registration Rights
Agreement"), pursuant to which Sunbeam agreed to provide certain
registration rights to Coleman Parent; and
WHEREAS, following the dismissal by Sunbeam of certain of its
executive officers in mid-June 1998, Coleman Parent has made available to
Sunbeam certain senior officers employed by members of the Coleman Group to
serve as senior executive officers of Sunbeam (the "Senior Executives") and
has provided certain other management support to Sunbeam, and Sunbeam
desires to continue the service of the Senior Executives and such
management support; and
WHEREAS, Coleman Parent and Sunbeam believe it is desirable that
Sunbeam put in place as promptly as possible a permanent management team to
prevent jeopardizing the ongoing operations and financial viability of
Sunbeam; and
WHEREAS, Coleman Parent believes that it possesses legal and equitable
claims against Sunbeam arising out of the Coleman Acquisition and out of
what it contends were certain breaches of contract and fraudulent and
negligent or other misrepresentations and omissions made to Coleman Parent
and its representatives in connection therewith (the "Claims"), and Sunbeam
disputes such Claims; and
WHEREAS, there are also now pending or may be filed putative class
actions in which Sunbeam is named as a defendant and in which Coleman
Parent is a class member (the "Class Actions"), and Sunbeam denies
liability with respect to and intends to contest the claims that have been
asserted in the Class Actions; and
WHEREAS, the accountants who audited Sunbeam's 1997 financial
statements, assisted by another firm of accountants, are in the process of
reviewing those financial statements, and believe, as has been publicly
announced, that it will be necessary to restate those financial statements
by reflecting a variety of adjustments the magnitude of which has not yet
been determined; and
WHEREAS, Sunbeam and Coleman Parent desire to terminate the disputes
between them, and desire to assure one another that Coleman Parent will not
prosecute the Claims or any related or potential claims arising out of or
relating to the Coleman Acquisition, directly or indirectly in any
capacity, against the Sunbeam Group, so as to avoid the substantial burdens
and expense of litigation and the interference with the business and
operations of Sunbeam and with the work of its management and employees and
to obtain the continued services of certain executives and employees of the
Coleman Group, and in accordance with the terms and provisions hereof, that
Coleman Parent and Sunbeam each forever release, waive and discharge any
and all manner of actions, causes of action, proceedings, suits, claims,
demands, liens, debts, accounts, obligations, rights, costs, contracts,
agreements, promises, controversies, judgments, expenses, demands, damages
and liabilities, of any nature whatsoever, in law or in equity, whether or
not now foreseen, known, suspected, matured, accrued or claimed, and
whether or not asserted in litigation, including court costs and attorneys'
fees (each an "Action and Liability" and collectively, "Actions and
Liabilities"), which any member of the Coleman Group controlling,
controlled by or under common control with Coleman Parent (such persons,
together with Coleman Parent, the "Coleman Controlled Group") may have
against any member of the Sunbeam Group and which any member of the Sunbeam
Group controlled by Sunbeam (such persons, together with Sunbeam, the
"Sunbeam Controlled Group") may have against any member of the Coleman
Group as of the effective date hereof or prior thereto in any manner
arising out of or relating to the Coleman Acquisition, irrespective of any
present lack of knowledge on the part of either of them of any such
possible Action and Liability, but excluding any claim for breach of this
Agreement or the agreements and documents entered into or delivered
pursuant hereto;
NOW, THEREFORE, in consideration of the respective covenants,
agreements and conditions hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be bound hereby, the parties hereto agree as
follows:
1. Issuance of Warrants; Closing.
(a) On the basis of the representations, warranties, covenants
and agreements and subject to the satisfaction or waiver (to the
extent permitted) of the applicable conditions expressly set forth
herein, at the closing of the transactions contemplated by this
Section 1 (the "Closing"):
(i) Sunbeam shall issue to Coleman Parent certain warrants
to purchase shares of Sunbeam Common Stock (the "Warrants") by
duly executing and delivering to Coleman Parent a Warrant
Agreement in the form attached as Exhibit A hereto (the "Warrant
Agreement");
(ii) Sunbeam and Coleman Parent shall enter into an
amendment to the Registration Rights Agreement, in the form
attached as Exhibit B hereto (as so amended, the "Amended
Registration Rights Agreement");
(iii) Sunbeam and Coleman Parent agree to be bound by the
releases and covenants set forth in Section 2 of this Agreement;
(iv) Coleman Parent agrees to supply management services of
the Senior Executives, and to the covenants and provisions of
Section 3 of this Agreement; and
(v) Sunbeam and Coleman Parent agree to be bound by the
provisions regarding the restrictions on transfer on the shares
of Sunbeam Common Stock received by Coleman Parent in the
Holdings Merger and the Warrants set forth in Section 4 of this
Agreement.
(b) The Closing shall take place on the first day when all
conditions thereto set forth herein shall be satisfied or waived or
such other date as Sunbeam and Coleman Parent may agree in writing
(the "Closing Date"), but in no event sooner than the tenth day
following the mailing of the letter to Sunbeam shareholders
contemplated by Section 7. The Closing shall take place on the
Closing Date at 10:00 a.m., New York City time, at the offices of
Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx and shall be deemed effective as of the opening of business on
the Closing Date.
(c) At the Closing, Sunbeam shall deliver or cause to be
delivered to Coleman Parent, in addition to the Warrant Agreement,
such other instruments or documents as Coleman Parent may reasonably
request.
2. Granting of Releases and Indemnification.
(a) At the Closing, simultaneously with receipt by Coleman
Parent of the Warrants, and without any further action by any of the
parties hereto, each of the following shall be fully and legally
effective:
(i) Coleman Parent shall, on behalf of itself and on behalf
of each other member of the Coleman Controlled Group, remise,
release and forever discharge the Sunbeam Group of and from all
debts, demands, actions, causes of action, suits, accounts,
covenants, contracts, agreements, damages, and any and all
claims, demands and liabilities whatsoever of every name and
nature, both in law and in equity, against any of the Sunbeam
Group or any of their predecessors, successors or assigns, which
Coleman Parent or any other member of the Coleman Controlled
Group has or ever had from the beginning of the world to the
Closing with respect to or arising out of the Coleman Acquisition
or any alleged misrepresentations and omissions and/or breach of
contract by any member of the Sunbeam Group and parties acting on
behalf of any member of the Sunbeam Group in connection with the
Coleman Acquisition, including with respect to the Actions and
Liabilities; provided that neither the foregoing release nor the
dismissals or withdrawals described in this Section 2(a) shall
apply to the rights of Coleman Parent and any other member of the
Coleman Controlled Group under Article IX of the Holdings Merger
Agreement, any breach or failure to comply with this Agreement,
the Warrant, the Amended Registration Rights Agreement or the
transactions contemplated hereby or thereby, the transactions
contemplated by the Coleman Merger Agreement (including the
Coleman Merger), which shall not be terminated or amended in any
respect hereby, or shall otherwise affect Coleman Parent's right
to enforce this Agreement, the Warrant or the Amended
Registration Rights Agreement in accordance with its or their
terms.
(ii) In the event any member of the Coleman Controlled Group
pursues a claim against any person(s) not released hereby
involving the matters that are the subject of the release set
forth in Section 2(a)(i) and it is finally judicially determined
that such person(s) are entitled directly or indirectly to
indemnification or contribution from any member of the Sunbeam
Controlled Group for any amounts they are required to pay to any
member of the Coleman Controlled Group in connection with such
claims, or to reimbursement of litigation expenses solely
attributable to such claims of any member of the Coleman
Controlled Group (each a "Sunbeam Group Indemnification
Obligation"), Coleman Parent will indemnify and hold harmless
each member of the Sunbeam Controlled Group against such Sunbeam
Group Indemnification Obligation. No member of the Sunbeam
Controlled Group will enter into any settlement of a Sunbeam
Group Indemnification Obligation without the prior written
consent of Coleman Parent, which shall not be unreasonably
withheld. Any amounts so paid by a member of the Sunbeam
Controlled Group in a settlement so consented to by Coleman
Parent shall be treated for purposes hereof as a Sunbeam Group
Indemnification Obligation.
(iii) Sunbeam, on behalf of itself and on behalf of each
other member of the Sunbeam Controlled Group, shall remise,
release and forever discharge the Coleman Group of and from all
debts, demands, actions, causes of action, suits, accounts,
covenants, contracts, agreements, damages, and any and all
claims, demands and liabilities whatsoever of every name and
nature, both in law and in equity, against any of the Coleman
Group or any of their predecessors, successors or assigns, which
Sunbeam or any member of the Sunbeam Controlled Group has or ever
had from the beginning of the world to the Closing with respect
to or arising out of the Coleman Acquisition or any alleged
misrepresentations and omissions and/or breach of contract by any
member of the Coleman Group and parties acting on behalf of any
member of the Coleman Group in connection with the Coleman
Acquisition, including with respect to the Actions and
Liabilities; provided that neither the foregoing release nor the
dismissals or withdrawals described in this Section 2(a) shall
apply to the rights of Sunbeam and any other member of the
Sunbeam Controlled Group under Article IX of the Holdings Merger
Agreement, any breach or failure to comply with this Agreement,
the Warrant, the Amended Registration Rights Agreement or the
transactions contemplated hereby or thereby, the transactions
contemplated by the Coleman Merger Agreement (including the
Coleman Merger), which shall not be terminated or amended in any
respect hereby, or shall otherwise affect Sunbeam's right to
enforce this Agreement, the Warrant or the Amended Registration
Rights Agreement in accordance with its or their terms.
(iv) In the event any member of the Sunbeam Controlled
Group pursues a claim against any person(s) not released hereby
involving the matters that are the subject of the release set
forth in Section 2(a)(iii) and it is finally judicially
determined that such person(s) are entitled directly or
indirectly to indemnification or contribution from any member of
the Coleman Controlled Group for any amounts they are required to
pay to any member of the Sunbeam Controlled Group in connection
with such claims, or to reimbursement of litigation expenses
solely attributable to such claims of any member of the Sunbeam
Controlled Group, (each, a "Coleman Group Indemnification
Obligation"), Sunbeam will indemnify and hold harmless each
member of the Coleman Controlled Group against such Coleman Group
Indemnification Obligation. No member of the Coleman Controlled
Group will enter into any settlement of a Coleman Group
Indemnification Obligation without the prior written consent of
Sunbeam, which shall not be unreasonably withheld. Any amounts
so paid by a member of the Coleman Controlled Group in a
settlement so consented to by Sunbeam shall be treated for
purposes hereof as a Coleman Group Indemnification Obligation.
(v) Sunbeam, on behalf of itself, and on behalf of each
other member of the Sunbeam Controlled Group, and Coleman Parent,
on behalf of itself and on behalf of each other member of the
Coleman Controlled Group, agree to indemnify and hold harmless
one another from and against any and all Actions and Liabilities
arising from, or in connection with, any action or proceeding,
brought by, or prosecuted by, or on the initiative of, either of
them, or by any of their predecessors, successors or assigns,
contrary to the provisions of this Agreement. It is further
agreed that this agreement of indemnity shall be deemed breached
and a cause of action shall be deemed to have accrued thereon
immediately upon the commencement of any action contrary to this
Agreement, and that in any such action this Agreement may be
pleaded by either of them as a defense, or either of them may
assert this Agreement by way of counterclaim or cross-claim in
any such action.
(vi) This Agreement shall inure to the benefit of and shall
be binding upon Sunbeam and Coleman Parent, and to the benefit of
and shall be binding upon each person or entity in the Sunbeam
Group and the Coleman Group.
(b) Coleman Parent agrees that it shall opt out, as to and only
as to any claims against any member of the Sunbeam Group, of any class
that may be certified in any of the Class Actions or in any other
action that may be certified as a class action with respect to or
arising out of any other matter released hereby.
3. Provision of Management Services.
(a) The parties hereto acknowledge that Coleman Parent has
caused other members of the Coleman Group to make available to Sunbeam
the services of certain employees and Senior Executives and has
encouraged such persons to continue to provide services to Sunbeam as
employees of Sunbeam.
(b) Coleman Parent agrees that it shall, and it shall use its
reasonable efforts to cause the other members of the Coleman Group to,
continue to, for a minimum period of 36 months from the date hereof,
make available to Sunbeam the services of Coleman Group's employees
who are Senior Executives, or who become Senior Executives, for so
long as they remain employees of a member of the Coleman Group and
otherwise to continue to provide advice and assistance to Sunbeam in
connection with the business and operations of Sunbeam consistent with
that provided to date; provided, however, that, other than pursuant to
the employment arrangements currently in place between such employees
and members of the Coleman Group, no member of the Coleman Group shall
be required bear any incremental expense with respect to any Senior
Executive in order to comply with the foregoing.
(c) Sunbeam agrees to pay the compensation of any such persons
who become employees of Sunbeam in accordance with the terms of the
employment arrangements entered into by Sunbeam with such persons.
This Agreement shall not prevent any of the Senior Executives from
continuing to perform services for members of the Coleman Group to the
extent that the provision of such services does not materially
interfere with the performance of services by the Senior Executive for
Sunbeam under his employment arrangements with Sunbeam.
(d) Coleman Parent agrees to use its reasonable efforts to cause
the other members of the Coleman Group to continue, for a period of 36
months from the date hereof, to provide assistance and support to
Sunbeam on a basis consistent with the manner in which such assistance
and support are generally provided to other companies in which members
of the Coleman Group have a substantial interest (and without the
payment of additional consideration by Sunbeam to Coleman Parent,
other than with respect to the reimbursement of out-of-pocket expenses
paid to third parties) and of a similar nature to those which have
been so provided to Sunbeam from time to time from mid-June 1998
through the date hereof, including as to the following matters:
(i) financings, and dealings with financing sources and the
capital markets;
(ii) investor and public relations;
(iii) acquisitions, divestitures and other extraordinary
transactions;
(iv) executive benefits and compensation and other personnel
matters; and
(v) compliance, litigation, insurance, regulatory and other
legal matters.
4. Restrictions on Transfer of Securities. Coleman Parent
hereby agrees not to, directly or indirectly, for a period of three
(3) years from the date hereof, Transfer (as such term is defined in
Section 7.1 of the Holdings Merger Agreement) (A) any shares of
Sunbeam Common Stock received pursuant to the terms of the Holdings
Merger Agreement or (B) any of the Warrants or the Warrant Shares (as
defined in the Warrant Agreement), in either case in whole or in part,
other than to one of its Affiliates (as such term is defined in the
Holdings Merger Agreement) who agrees in writing to be bound by the
terms of this Section 4, except that (A) the holder or holders of such
shares of Sunbeam Common Stock may at any time or from time to time
Transfer so many of such shares of Sunbeam Common Stock as represent
in the aggregate seventy-five percent (75%) of such shares of Sunbeam
Common Stock, and (B) the holder or holders of the Warrants or the
Warrant Shares may at any time or from time to time Transfer so many
of the Warrants or the Warrant Shares as represent in the aggregate
fifty (50%) of the Warrant Shares Amount (as defined in the Warrant
Agreement). The provisions of this Section 4 shall not be applicable,
and Coleman Parent shall be free to Transfer any and all shares of
Sunbeam Common Stock, Warrants and Warrant Shares, (i) following any
change of control of Sunbeam or (ii) in connection with any
transaction in which the holders of all of the outstanding shares of
Sunbeam Common Stock have the opportunity to Transfer at least 50% of
their shares of Sunbeam Common Stock on the same terms. The
provisions of this Section 4 shall supersede any and all other
restrictions on Transfer that Coleman Parent or any of its Affiliates
may have agreed to with Sunbeam or any of its Affiliates.
5. Representations and Warranties of Sunbeam. Sunbeam hereby
represents and warrants to Coleman Parent as follows:
(a) Due Authorization. This Agreement has been duly authorized
by all necessary corporate action on the part of Sunbeam, and no other
corporate actions or proceedings on the part of Sunbeam (including any
action on the part of its stockholders) are necessary to authorize
this Agreement or the transactions contemplated hereby. This
Agreement has been duly executed by a duly authorized officer of
Sunbeam and constitutes a valid and binding agreement of Sunbeam
enforceable against it in accordance with its terms. The Audit
Committee of the Board of Directors of Sunbeam (the "Audit Committee")
has expressly approved the transactions contemplated hereby as
contemplated by Paragraph 312 ("Paragraph 312") of the New York Stock
Exchange ("NYSE") Listed Company Manual and has determined that delay
in securing shareholder approval of the transactions contemplated
hereby would seriously jeopardize the financial viability of the
Company. Upon application duly made by Sunbeam, the NYSE has advised
that it has accepted Sunbeam's reliance on the exception to the
shareholder approval policy of Paragraph 312 as contained therein in
connection with the transactions contemplated hereby (the
"Exception").
(b) Due Organization. Sunbeam is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to enter into and
perform this Agreement and to carry on its business as it is now being
conducted.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any governmental or regulatory authority is
necessary for the consummation by Sunbeam of the transactions
contemplated hereby, other than as may be required under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act with respect to the exercise
of the Warrants. Neither the execution and delivery of this Agreement
by Sunbeam nor the consummation by Sunbeam of the transactions
contemplated hereby, nor compliance by Sunbeam with any of the
provisions hereof, will (i) conflict with or result in any breach of
any provisions of the certificate of incorporation or by-laws of
Sunbeam; (ii) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration) under,
any of the terms, conditions or provisions of any material contract or
of any material license, franchise, permit, concession, certificate of
authority, order, approval, application or registration of, from or
with any governmental authority to which Sunbeam is a party or by
which it or any of its properties or assets may be bound; or (iii)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Sunbeam or any of its properties or assets.
(d) Validity of Warrants and Underlying Shares. At the Closing,
the issuance of the Warrants will have been duly authorized and, upon
their issuance pursuant to the terms of this Agreement, the Warrants
will be validly issued and will not be subject to any preemptive or
similar right other than the rights and obligations under the Warrant
Agreement. All shares of Sunbeam Common Stock to be issued upon the
exercise of the Warrants, when issued, will be duly authorized and
validly issued, fully paid and nonassessable and will not be subject
to any preemptive or similar right.
(e) Capitalization. The authorized capital stock of Sunbeam
consists of 500,000,000 shares of Sunbeam Common Stock, and 2,000,000
shares of preferred stock, par value $.01 per share, of Sunbeam. As
of the date hereof, (i) 100,860,129 shares of Sunbeam Common Stock
were issued and outstanding (excluding any shares of Sunbeam Common
Stock issued upon the exercise of Sunbeam Stock Options (as defined
below) since August 6, 1998); (ii) 7,199,452 shares of Sunbeam Common
Stock were issuable upon the consummation of the Coleman Merger
Agreement; (iii) 13,242,050 shares of Sunbeam Common Stock were
issuable in accordance with the terms of the Zero Coupon Convertible
Senior Subordinated Debentures due 2018 of the Company; and (iv) no
shares of Sunbeam preferred stock were issued and outstanding. As of
the date hereof, not more than 9,000,000 shares of Sunbeam Common
Stock were issuable upon exercise of vested and unvested employee and
non-employee stock options (the "Sunbeam Stock Options") outstanding
under all stock option plans of Sunbeam or granted pursuant to
employment agreements (although Sunbeam is contesting the validity of
certain of such Sunbeam Stock Options). As of the date hereof, no
shares of Sunbeam Common Stock were held as treasury shares. All of
the issued and outstanding shares of Sunbeam Common Stock are validly
issued, fully paid and nonassessable and free of preemptive rights.
As of the date hereof, except as set forth above, there are no shares
of capital stock of Sunbeam issued or outstanding or, except as set
forth above, any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments obligating
Sunbeam to issue, transfer, sell, redeem, repurchase or otherwise
acquire any shares of its capital stock or securities, or the capital
stock or securities of Sunbeam. There are no notes, bonds, debentures
or other indebtedness of Sunbeam having the right to vote (or
convertible into or exchangeable for securities having the right to
vote) on any matters upon which stockholders of Sunbeam may vote.
(f) Brokers. Other than Blackstone Financial Group, which has
acted as financial advisor to the Special Committee of the Sunbeam
Board, no broker, investment banker or other person is entitled to any
broker's, finder's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Sunbeam or any member of the
Sunbeam Group.
6. Representations and Warranties of Coleman Parent. Coleman Parent
hereby represents and warrants to Sunbeam as follows:
(a) Due Authorization. This Agreement has been duly authorized
by all necessary corporate action on the part of Coleman Parent, and
no other corporate actions or proceedings on the part of the Coleman
Parent (including any action on the part of its stockholders) are
necessary to authorize this Agreement or the transactions contemplated
hereby. This Agreement has been duly executed by a duly authorized
officer of Coleman Parent and constitutes a valid and binding
agreement of Coleman Parent enforceable against it in accordance with
its terms.
(b) Due Organization. Xxxxxxx Parent is a corporation duly
organized, validly existing and in good standing under the laws of
State of Delaware and has the requisite corporate power to enter into
and perform this Agreement.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any governmental or regulatory authority is
necessary for the consummation by Xxxxxxx Parent of the transactions
contemplated hereby, other than as may be required under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act with respect to the exercise
of the Warrants. Neither the execution and delivery of this Agreement
by Xxxxxxx Parent nor the consummation by Xxxxxxx Parent of the
transactions contemplated hereby, nor compliance by Xxxxxxx Parent
with any of the provisions hereof, will (i) conflict with or result in
any breach of any provisions of the certificate of incorporation or
by-laws of Xxxxxxx Parent; (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
material contract or of any material license, franchise, permit,
concession, certificate of authority, order, approval, application or
registration of, from or with any governmental authority to which
Xxxxxxx Parent is a party or by which it or any of its properties or
assets may be bound; or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Xxxxxxx Parent or
any of its properties or assets.
(d) Acquisition of Warrants for Investment. Xxxxxxx Parent is
acquiring the Warrants (and will acquire any Warrant Shares upon
exercise of the Warrants) for its own account for investment purposes
only and not with a view toward or for a sale in connection with, any
distribution thereof, or with any present intention of distributing or
selling any of such in violation of federal or state securities laws.
(e) Brokers. No broker, investment banker or other person is
entitled to any broker's, finder's or other similar fee or commission
in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Xxxxxxx Parent or any
member of the Xxxxxxx Group.
7. Covenants.
(a) Within one day following the date hereof, Sunbeam shall
cause to be mailed to all shareholders of Sunbeam a letter informing
them of the transactions contemplated hereby as contemplated and
required by Paragraph 312 of the NYSE Listed Company Manual and
indicating that the Audit Committee has expressly approved the
Exception in light of the Audit Committee's determination that delay
in securing shareholder approval of the transactions contemplated
hereby would seriously jeopardize the financial viability of the
Company and that the NYSE has accepted the Company's reliance on the
Exception .
(b) The anti-dilution provisions of the Warrant shall be given
retroactive effect to the date hereof.
8. Specific Performance. The parties acknowledge that money damages
are an inadequate remedy for breach of this Agreement. Therefore, the
parties agree that each of them has the right, in addition to (and not in
lieu of) any other right they may have under this Agreement or otherwise,
to specific performance of this Agreement in the event of any breach hereof
by any other party.
9. Conditions to the Obligations of both Parties. The obligations
of each of Sunbeam and Xxxxxxx Parent to effect the transactions
contemplated hereby shall be conditioned on the non-existence of any order,
decree or injunction of a court of competent jurisdiction which restrains
the consummation of the transactions contemplated by this Agreement.
10. Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) by mutual agreement of the Boards of Directors of Xxxxxxx
Parent and Sunbeam; or
(b) by Xxxxxxx Parent if the Warrants to be issued to Xxxxxxx
Parent pursuant hereto have not been issued or will not be issued at
the Closing or if there has been a material violation or breach by
Sunbeam of any agreement, representation or warranty contained in this
Agreement which has rendered the satisfaction of any condition to the
obligations of Xxxxxxx Parent impossible and such violation or breach
has not been waived by Xxxxxxx Parent; or
(c) by Sunbeam if there has been a material violation or breach
by Xxxxxxx Parent of any agreement, representation or warranty
contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of Sunbeam impossible and such violation
or breach has not been waived by Sunbeam.
In the event of termination and abandonment of this Agreement by
Xxxxxxx Parent or Sunbeam or both of them pursuant to the terms of this
Section 10, written notice thereof shall forthwith be given to the other
party and this Agreement shall terminate and the transactions contemplated
hereby shall be abandoned, without further action by any of the parties
hereto.
11. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby will be paid by the
party incurring such costs and expenses.
12. Tax Matters. Xxxxxxx Parent shall in good faith provide to
Sunbeam information concerning the tax treatment under the Internal Revenue
Code of 1986, as amended (the "Code"), of the transactions contemplated
hereby. Sunbeam shall report such transactions for all tax purposes
consistent with such information and take no position with any taxing
authority inconsistent therewith. Xxxxxxx Parent and Sunbeam shall report
the Holdings Merger as a reorganization within the meaning of Code Section
368(a) for all tax purposes.
13. Best Efforts. Each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each corporation which is a
party to this Agreement shall take all such necessary action.
14. Parties in Interest; Assignments. This Agreement is binding upon
and is solely for the benefit of the parties hereto, the Sunbeam Group and
the Xxxxxxx Group and their respective successors and legal
representatives.
15. Entire Agreement. This Agreement and the agreements to be
entered into and delivered pursuant hereto constitutes the entire agreement
between Sunbeam and Xxxxxxx Parent with respect to the subject matter
hereof, and it is expressly understood and agreed that this Agreement may
not be altered, amended, modified, or otherwise changed in any respect or
particular whatsoever, except by a writing duly executed by authorized
representatives of both Sunbeam and Xxxxxxx Parent. No party to this
Agreement has relied upon any representation or warranty, written or oral,
except as expressly included herein.
16. Amendments. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
17. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or other standard form of telecommunication, or by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to Xxxxxxx Parent:
Xxxxxxx (Parent) Holdings Inc.
c/o MacAndrews & Forbes Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Sunbeam:
Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other
parties in writing in accordance herewith.
18. Governing Law; Forum.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to
its conflict of law rules.
(b) The parties hereto irrevocably and unconditionally consent
to submit to the exclusive jurisdiction of the courts of the State of
Delaware and/or of the United States of America located in the State
of Delaware for any actions, suits or proceedings out of or relating
to this Agreement and the transactions contemplated hereby.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute but one agreement.
20. Effect of Headings. The descriptive headings contained herein
are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
21. Interpretation. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of
this Agreement unless otherwise indicated. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation". The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter
genders of such term. References to a person are also to its permitted
successors and assigns and, in the case of an individual, to his heirs and
estate, as applicable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
XXXXXXX (PARENT) HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxx
_______________________________
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and General Counsel
SUNBEAM CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_________________________________
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Special
Committee
EXHIBIT A
SUNBEAM CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF SUNBEAM CORPORATION
ISSUE DATE: AUGUST__, 1998
WARRANT NO. W-1 23,000,000 WARRANT SHARES
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASEABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
OR DISPOSED OF UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH REGISTRATION,
QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER ANY
SUCH LAWS.
FOR VALUE RECEIVED, SUNBEAM CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that Xxxxxxx (Parent) Holdings Inc., its
successor or permitted assigns (the "Holder"), is entitled, subject to the
provisions of this Warrant, to purchase from the Company, at the times
specified herein, a number of the fully paid and non-assessable shares of
Common Stock of the Company, par value $.01 per share (the "Common Stock"),
equal to the Warrant Share Amount (as hereinafter defined) at a purchase
price per share equal to the Exercise Price (as hereinafter defined).
SECTION 1. DEFINITIONS. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to
close.
"CERTIFICATE OF INCORPORATION" means the Restated Certificate of
Incorporation of the Company.
"CLOSING PRICE" on any day means (1) if the shares of Common Stock
then are listed and traded on the New York Stock Exchange, Inc. ("NYSE"),
the Closing Price on such day as reported on the NYSE Composite
Transactions Tape; (2) if shares of Common Stock then are not listed and
traded on the NYSE, the Closing Price on such day as reported by the
principal national securities exchange on which the shares of Common Stock
are listed and traded; (3) if the shares of Common Stock then are not
listed and traded on any such securities exchange, the last reported sale
price on such day on the National Market of The National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"); or (4) if
the shares of Common Stock then are not traded on the NASDAQ National
Market, the average of the highest reported bid and the lowest reported
asked price on such day as reported by NASDAQ.
"COMMON SHARE EQUIVALENT" means, with respect to any security of the
Company and as of a given date, a number which is, (i) in the case of a
share of Common Stock, one, (ii) in the case of all or a portion of any
right, warrant or other security which may be exercised for a share or
shares of Common Stock, the number of shares of Common Stock receivable
upon exercise of such security (or such portion of such security), and
(iii) in the case of any security convertible or exchangeable into a share
or shares of Common Stock, the number of shares of Common Stock that would
be received if such security were converted or exchanged on such date.
"COMMON STOCK" shall have the meaning set forth in the first paragraph
hereof.
"COMPANY" shall have the meaning set forth in the first paragraph
hereof.
"CONVERTIBLE SECURITIES" shall have the meaning set forth in Section
7(d).
"DETERMINATION DATE" shall have the meaning set forth in Section 7(f).
"EXERCISE PRICE" means a price per Warrant Share equal to $7.00.
"EXPIRATION DATE" means 5:00 p.m. New York City time on August __,
2003 [the fifth anniversary of the date of this Warrant].
"FAIR MARKET VALUE" as at any date of determination means, as to
shares of the Common Stock, if the Common Stock is publicly traded at such
time, the average of the daily Closing Prices of a share of Common Stock
for the ten (10) consecutive trading days ending on the most recent trading
day prior to the date of determination. If the shares of Common Stock are
not publicly traded at such time, and as to all things other than the
Common Stock, Fair Market Value shall be determined in good faith by an
independent nationally recognized investment banking firm selected by the
Company and acceptable to a majority of the Holders and which shall have no
other substantial relationship with the Company.
"HOLDER" shall have the meaning set forth in the first paragraph
hereof.
"OPTIONS" shall have the meaning set forth in Section 7(d).
"PERSON" means an individual, partnership, corporation, limited
liability company, trust, joint stock company, association, joint venture,
or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
"WARRANT SHARE AMOUNT" means 23,000,000 (Twenty Three Million) shares
of Common Stock as such number may be adjusted pursuant to Sections 7 and
8.
"WARRANT SHARES" means the shares of Common Stock deliverable upon
exercise of this Warrant, as adjusted from time to time.
SECTION 2. EXERCISE OF WARRANT. (a) The Holder is entitled to
exercise this Warrant in whole or in part at any time, or from time to
time, until the Expiration Date or, if such day is not a Business Day, then
on the next succeeding day that shall be a Business Day. To exercise this
Warrant, the Holder shall deliver to the Company this Warrant, including
the Warrant Exercise Subscription Form forming a part hereof duly executed
by the Holder, together with payment of the applicable Exercise Price.
Upon such delivery and payment, the Holder shall be deemed to be the holder
of record of the number of Warrant Shares equal to the Warrant Share Amount
(or, in the case of a partial exercise of this Warrant, a ratable number of
such shares), notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares shall
not then be actually delivered to the Holder.
(b) At the option of the Holder, the Exercise Price may be paid in
cash (including by wire transfer of immediately available funds) or by
certified or official bank check or bank cashier's check payable to the
order of the Company or by any combination of such cash or check. At the
option of the Holder, the Exercise Price may in the alternative be paid in
whole or in part by reducing the number of shares of Common Stock issuable
to the Holder by a number of shares of Common Stock that have a Fair Market
Value equal to the Exercise Price which otherwise would have been paid (so
that the net number of shares of Common Stock issued in respect of such
exercise shall equal the number of shares of Common Stock that would have
been issuable had the Exercise Price been paid entirely in cash, less a
number of shares of Common Stock with a Fair Market Value equal to the
portion of the Exercise Price paid in kind); provided that this option
shall be available only with respect to the exercise of this Warrant with
respect to not more than one-half of the total number of Warrant Shares.
The Company shall pay any and all documentary, or similar issue or transfer
taxes payable in respect of the issue or delivery of the Warrant Shares.
The Company shall not, however, be required to pay any transfer tax which
may be payable in respect of any transfer involved in the issue or delivery
of Warrants or Warrant Shares (or other securities or assets) in a name
other than that in which the Warrants so exercised were registered, and no
such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of such transfer tax or has
established, to the satisfaction of the Company, that such transfer tax has
been paid.
(c) If the Holder exercises this Warrant in part, this Warrant shall
be surrendered by the Holder to the Company and a new Warrant of the same
tenor and for the unexercised number of Warrant Shares shall be executed by
the Company. The Company shall register the new Warrant in the name of the
Holder or in such name or names of its transferee pursuant to Section 6 as
may be directed in writing by the Holder and deliver the new Warrant to the
Person or Persons entitled to receive the same.
(d) Upon surrender of this Warrant in conformity with the foregoing
provisions, the Company shall, subject to the expiration of any applicable
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act,
transfer to the Holder of this Warrant appropriate evidence of ownership of
the shares of Common Stock or other securities or property (including any
money) to which the Holder is entitled, registered or otherwise placed in,
or payable to the order of, the name or names of the Holder or such
transferee as may be directed in writing by the Holder, and shall deliver
such evidence of ownership and any other securities or property (including
any money) to the Person or Persons entitled to receive the same, together
with an amount in cash in lieu of any fraction of a share as provided in
Section 5, subject to any required withholding.
SECTION 3. RESTRICTIVE LEGEND. Each certificate representing shares
of Common Stock issued pursuant to this Warrant, unless at the time of
exercise such shares are registered under the Securities Act, shall bear a
legend substantially in the form of the legend set forth on the first page
of this Warrant.
SECTION 4. RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise
of this Warrant such number of its authorized but unissued shares of Common
Stock or other securities of the Company from time to time issuable upon
exercise of this Warrant as will be sufficient to permit the exercise in
full of this Warrant. The Company hereby represents and agrees that all
such shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and non-assessable, free and clear of
all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive or similar
rights, except to the extent imposed by or as a result of the status, act
or omission of, the Holder.
SECTION 5. FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant and in lieu of delivery of any such fractional share upon any
exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the Fair Market Value thereof;
provided, however, that, in the event that the Company combines or
reclassifies the outstanding shares of its Common Stock into a smaller
number of shares, it shall be required to issue fractional shares to the
Holder if the Holder exercises all or any part of its Warrants, unless the
Holder has consented in writing to such reduction and provided the Company
with a written waiver of its right to receive fractional shares in
accordance with this Section 5.
SECTION 6. TRANSFER, EXCHANGE OR ASSIGNMENT OF WARRANT. (a) Each
taker and holder of this Warrant by taking or holding the same, consents
and agrees that the registered holder hereof may be treated by the Company
and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby.
(b) Subject to the requirements of state and federal securities laws,
the Holder of this Warrant shall be entitled, without obtaining the consent
of the Company to assign and transfer this Warrant, at any time in whole or
from time to time in part, to any Person or Persons. Subject to the
preceding sentence, upon surrender of this Warrant to the Company, together
with the attached Warrant Assignment Form duly executed, the Company shall,
without charge, execute and deliver a new Warrant in the name of the
assignee or assignees named in such instrument of assignment and, if the
Holder's entire interest is not being assigned, in the name of the Holder
and this Warrant shall promptly be canceled.
(c) Upon receipt by the Company of evidence satisfactory to it (in
the exercise of its reasonable discretion) of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnification or security reasonably required by the
Company, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver a new Warrant of like tenor and date.
(d) The Company shall pay all expenses, taxes (other than transfer
taxes) and other charges payable in connection with the preparation,
issuance and delivery of Warrants hereunder.
SECTION 7. ANTI-DILUTION PROVISIONS. So long as any Warrants are
outstanding, the Warrant Share Amount shall be subject to change or
adjustment as follows:
(a) Common Stock Dividends, Subdivisions, Combinations. In case the
Company shall (i) pay or make a dividend or other distribution to all
holders of its Common Stock in shares of Common Stock, (ii) subdivide or
split the outstanding shares of its Common Stock into a larger number of
shares, or (iii) combine the outstanding shares of its Common Stock into a
smaller number of shares (which shall not in any event be done without the
express written approval of Holders of a majority of the outstanding
Warrants), then in each such case the Warrant Share Amount shall be
adjusted to equal the number of such shares to which the holder of this
Warrant would have been entitled upon the occurrence of such event had this
Warrant been exercised immediately prior to the happening of such event or,
in the case of a stock dividend or other distribution, prior to the record
date for determination of shareholders entitled thereto. An adjustment
made pursuant to this Section 7(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any,
for such event.
(b) Reorganization or Reclassification. In case of any capital
reorganization or any reclassification of the capital stock of the Company
(whether pursuant to a merger or consolidation or otherwise), or in the
event of any similar transaction, this Warrant shall thereafter be
exercisable for the number of shares of stock or other securities or
property receivable upon such capital reorganization or reclassification of
capital stock or other transaction, as the case may be, by a holder of the
number of shares of Common Stock into which this Warrant was exercisable
immediately prior to such capital reorganization or reclassification of
capital stock; and, in any case, appropriate adjustment (as determined in
good faith by the Board of Directors of the Company) shall be made for the
application of the provisions herein set forth with respect to the rights
and interests thereafter of the Holder of this Warrant to the end that the
provisions set forth herein shall thereafter be applicable, as nearly as
reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this
Warrant. An adjustment made pursuant to this Section 7(b) shall become
effective immediately after the effective date of such event retroactive to
the record date, if any, for such event.
(c) Distributions of Assets or Securities Other than Common Stock.
In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock shares of any class of its capital stock (other
than Common Stock), or other debt or equity securities or evidences of
indebtedness of the Company, or options, rights or warrants to purchase any
of such securities, cash or other assets, then in each such case the
Warrant Share Amount shall be adjusted by multiplying the Warrant Share
Amount immediately prior to the date of such dividend or distribution by a
fraction, of which the numerator shall be the Fair Market Value per share
of Common Stock at the record date for determining shareholders entitled to
such dividend or distribution, and of which the denominator shall be such
Fair Market Value per share less the Fair Market Value of the portion of
the securities, cash, other assets or evidences of indebtedness so
distributed applicable to one share of Common Stock. An adjustment made
pursuant to this Section 7(c) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for
such event.
(d) Below Market Issuances of Common Stock and Convertible
Securities. In case the Company shall issue Common Stock (or options,
rights or warrants to purchase shares of Common Stock (collectively,
"Options") or other securities convertible into or exchangeable or
exercisable for shares of Common Stock (such other securities,
collectively, "Convertible Securities")) at a price per share (or having an
effective exercise, exchange or conversion price per share together with
the purchase price thereof) less than the Fair Market Value per share of
Common Stock on the date such Common Stock (or Options or Convertible
Securities), is sold or issued (provided that no sale of securities
pursuant to an underwritten public offering shall be deemed to be for less
than Fair Market Value), then in each such case the Warrant Share Amount
shall thereafter be adjusted by multiplying the Warrant Share Amount
immediately prior to the date of issuance of such Common Stock (or Options
or Convertible Securities) by a fraction, the numerator of which shall be
(x) the sum of (i) the number of Common Share Equivalents represented by
all securities outstanding immediately prior to such issuance and (ii) the
number of additional Common Share Equivalents represented by all securities
so issued multiplied by (y) the Fair Market Value of a share of Common
Stock immediately prior to the date of such issuance, and the denominator
of which shall be (x) the product of (A) the Fair Market Value of a share
of Common Stock immediately prior to the date of such issuance and (B) the
number of Common Share Equivalents represented by all securities
outstanding immediately prior to such issuance plus (y) the aggregate
consideration received by the Company for the total number of securities so
issued plus, (z) in the case of Options or Convertible Securities, the
additional consideration required to be received by the Company upon the
exercise, exchange or conversion of such securities; provided that no
adjustment shall be required in respect of issuances of Common Stock (or
options to purchase Common Stock) pursuant to stock option or other
employee benefit plans in effect on the date hereof, or approved by the
Board of Directors of the Company after the date hereof. Notwithstanding
anything herein to the contrary, (1) no further adjustment to the Warrant
Share Amount shall be made upon the issuance or sale of Common Stock
pursuant to (x) the exercise of any Options or (y) the conversion or
exchange of any Convertible Securities, if in each case the adjustment in
the Warrant Share Amount was made as required hereby upon the issuance or
sale of such Options or Convertible Securities or no adjustment was
required hereby at the time such Option or Convertible Security was issued,
and (2) no adjustment to the Warrant Share Amount shall be made upon the
issuance or sale of Common Stock upon the exercise of any Options existing
on the original issue date hereof, without regard to the exercise price
thereof. Notwithstanding the foregoing, no adjustment to the Warrant Share
Amount shall be made pursuant to this paragraph upon the issuance or sale
of Common Stock, Options, or Convertible Securities in a bona fide arm's-
length transaction to any Person or group that, at the time of such
issuance or sale, is not an Affiliate of the Company (including any
possible issuance of Common Stock, Options, or Convertible Securities to
the public stockholders of The Xxxxxxx Company, Inc. ("Coleman") in
connection with the acquisition of their shares of Coleman common stock
pursuant to the Agreement and Plan of Merger, dated as of February 27, 1998
(the "Coleman Merger Agreement"), by and among Sunbeam, Camper Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Sunbeam, and
Coleman, or otherwise). An adjustment made pursuant to this Section 7(d)
shall become effective immediately after such Common Stock, Options or
Convertible Securities are sold.
(e) Below Market Distributions or Issuances of Preferred Stock or
Other Securities. In case the Company shall issue non-convertible and non-
exchangeable preferred stock (or other debt or equity securities or
evidences of indebtedness of the Company (other than Common Stock or
Options or Convertible Securities) or options, rights or warrants to
purchase any of such securities) at a price per share (or other similar
unit) less than the Fair Market Value per share (or other similar unit) of
such preferred stock (or other security) on the date such preferred stock
(or other security) is sold (provided that no sale of preferred stock or
other security pursuant to an underwritten public offering shall be deemed
to be for less than its fair market value), then in each such case the
Warrant Share Amount shall thereafter be adjusted by multiplying the
Warrant Share Amount immediately prior to the date of issuance of such
preferred stock (or other security) by a fraction, the numerator of which
shall be the product of (i) the number of Common Share Equivalents
represented by all securities outstanding immediately prior to such
issuance and (ii) the Fair Market Value of a share of Common Stock
immediately prior to the date of such issuance, and the denominator of
which shall be (x) the product of (A) the number of Common Share
Equivalents represented by all securities outstanding immediately prior to
such issuance and (B) the Fair Market Value of a share of the Common Stock
immediately prior to the date of such issuance minus (y) the difference
between (1) the aggregate Fair Market Value of such preferred stock (or
other security) and (2) the aggregate consideration received by the Company
for such preferred stock (or other security). Notwithstanding the
foregoing, no adjustment to the Warrant Share Amount shall be made pursuant
to this paragraph upon the issuance or sale of preferred stock (or other
securities of the Company other than common Stock or Options or Convertible
Securities) in a bona fide arm's-length transaction to any Person or group
that, at the time of such issuance or sale, is not an Affiliate of the
Company (including any possible issuance of preferred stock (or other
securities of the Company other than common Stock or Options or Convertible
Securities) to the public stockholders of Coleman in connection with the
acquisition of their shares of Coleman common stock pursuant to the Coleman
Merger Agreement, or otherwise). An adjustment made pursuant to this
Section 7(e) shall become effective immediately after such preferred stock
(or other security) is sold.
(f) Above Market Repurchases of Common Stock. If at any time or from
time to time the Company or any Subsidiary thereof shall repurchase, by
self-tender offer or otherwise, any shares of Common Stock of the Company
(or any Options or Convertible Securities) at a purchase price in excess of
the Fair Market Value thereof, on the Business Day immediately prior to the
earliest of (i) the date of such repurchase, (ii) the commencement of an
offer to repurchase, or (iii) the public announcement of either (such date
being referred to as the "Determination Date"), the Warrant Share Amount
shall be determined by multiplying the Warrant Share Amount immediately
prior to such Determination Date by a fraction, the numerator of which
shall be the product of (1) the number of Common Share Equivalents
represented by all securities outstanding immediately prior to such
Determination Date minus the number of Common Share Equivalents represented
by the securities repurchased or to be purchased by the Company or any
Subsidiary thereof in such repurchase and (2) the Fair Market Value of a
share of Common Stock immediately prior to such Determination Date, and the
denominator of which shall be (x) the product of (A) the number of Common
Share Equivalents represented by all securities outstanding immediately
prior to the Determination Date and (B) the Fair Market Value of a share of
Common Stock immediately prior to such Determination Date minus (y) the sum
of (1) the aggregate consideration paid by the Company in connection with
such repurchase and (2) in the case of Options or Convertible Securities,
the additional consideration required to be received by the Company upon
the exercise, exchange or conversion of such securities. Notwithstanding
the foregoing, no adjustment to the Warrant Share Amount shall be made
pursuant to this paragraph upon the repurchase, by self-tender offer or
otherwise, of Common Stock (or any Options or Convertible Security) in a
bona fide arm's-length transaction from any Person or group that, at the
time of such repurchase, is not an Affiliate of the Company.
(g) Above Market Repurchases of Preferred Stock or Other Securities.
If at any time or from time to time the Company or any Subsidiary thereof
shall repurchase, by self-tender offer or otherwise, any shares of non-
convertible and non-exchangeable preferred stock (or other debt or equity
securities or evidences of indebtedness of the Company (other than Common
Stock or Options or Convertible Securities) or options, rights or warrants
to purchase any of such securities), at a purchase price in excess of the
Fair Market Value thereof, on the Business Day immediately prior to the
Determination Date, the Warrant Share Amount shall be determined by
multiplying the Warrant Share Amount immediately prior to the Determination
Date by a fraction, the numerator of which shall be the product of (i) the
number of Common Share Equivalents represented by all securities
outstanding immediately prior to such Determination Date and (ii) the Fair
Market Value of a share of Common Stock immediately prior to such
Determination Date, and the denominator of which shall be (x) the product
of (A) the number of Common Share Equivalents represented by all securities
outstanding immediately prior to such Determination Date and (B) the Fair
Market Value of a share of Common Stock immediately prior to such
Determination Date minus (y) the difference between (1) the aggregate
consideration paid by the Company in connection with such repurchase and
(2) the aggregate Fair Market Value of such preferred stock (or other
security). Notwithstanding the foregoing, no adjustment to the Warrant
Share Amount shall be made pursuant to this paragraph upon the repurchase,
by self-tender offer or otherwise, of non-convertible and non-exchangeable
preferred stock (or other securities of the Company other than Common Stock
or Options or Convertible Securities) in a bona fide arm's-length
transaction from any Person or group that, at the time of such repurchase,
is not an Affiliate of the Company.
(h) Readjustment of Warrant Share Amount. If (i) the purchase price
provided for in any Option or the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities or the rate
at which any Convertible Securities, in each case as referred to in
paragraphs (b) and (f) above, are convertible into or exchangeable for
Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against dilution upon an event which results
in a related adjustment pursuant to this Section 7), or (ii) any of such
Options or Convertible Securities shall have irrevocably terminated, lapsed
or expired, the Warrant Share Amount then in effect shall forthwith be
readjusted (effective only with respect to any exercise of this Warrant
after such readjustment) to the Warrant Share Amount which would then be in
effect had the adjustment made upon the issuance, sale, distribution or
grant of such Options or Convertible Securities been made based upon such
changed purchase price, additional consideration or conversion rate, as the
case may be (in the case of any event referred to in clause (i) of this
paragraph (h)) or had such adjustment not been made (in the case of any
event referred to in clause (ii) of this paragraph (h)).
(i) Exercise Price Adjustment. Upon each adjustment of the Warrant
Share Amount pursuant to this Section 7, the Exercise Price of each Warrant
outstanding immediately prior to such adjustment shall thereafter be equal
to an adjusted Exercise Price per Share determined (to the nearest cent) by
multiplying the Exercise Price for the Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the Warrant Share
Amount in effect immediately prior to such adjustment and the denominator
of which shall be the Warrant Share Amount in effect immediately after such
adjustment.
(j) Consideration. If any shares of Common Stock, Options or
Convertible Securities shall be issued, sold or distributed for cash, the
consideration received in respect thereof shall be deemed to be the amount
received by the Company therefor, before deduction therefrom of any
reasonable, customary and adequately documented expenses incurred in
connection therewith. If any shares of Common Stock, Options or
Convertible Securities shall be issued, sold or distributed for a
consideration other than cash, the amount of the consideration other than
cash received by the Company shall be deemed to be the Fair Market Value of
such consideration, before deduction of any reasonable, customary and
adequately documented expenses incurred in connection therewith. If any
shares of Common Stock, Options or Convertible Securities shall be issued
in connection with any merger in which the Company is the surviving
corporation, the amount of consideration therefor shall be deemed to be the
Fair Market Value of such portion of the assets and business of the non-
surviving corporation as shall be attributable to such Common Stock,
Options or Convertible Securities, as the case may be. If any Options
shall be issued in connection with the issuance and sale of other
securities of the Company, together comprising one integral transaction in
which no specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued without
consideration.
(k) No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Company, but will at all times in good faith assist in the carrying out
of all the provisions of this Section 7 and in the taking of all such
action as may be necessary or appropriate in order to protect the
conversion rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will not increase the par value
of any shares of Common Stock receivable on the exercise of the Warrants
above the amount payable therefor on such exercise.
(l) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Warrant Share Amount pursuant to this
Section 7, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish
to the Holder a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is based. The Company shall, upon the written request at any time of the
Holder, furnish or cause to be furnished to Holder a like certificate
setting forth (1) such adjustments and readjustments and (2) the number of
shares of Common Stock and the amount, if any, of other property which at
the time would be received upon the exercise of this Warrant.
(m) Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Section 7, the Company shall take any action
which may be necessary, including obtaining regulatory approvals or
exemptions, in order that the Company may thereafter validly and legally
issue as fully paid and nonassessable all shares of Common Stock which the
Holders are entitled to receive upon exe rcise thereof.
(n) Notice of Adjustment. Upon the record date or effective date, as
the case may be, of any action which requires or might require an
adjustment or readjustment pursuant to this Section 7, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at
its principal executive office and with its stock transfer agent or its
warrant agent, if any, an officers' certificate showing the adjusted number
of Warrant Shares determined as herein provided, setting forth in
reasonable detail the facts requiring such adjustment and the manner of
computing such adjustment. Each such officers' certificate shall be signed
by the chairman, president or chief financial officer of the Company and by
the secretary or any assistant secretary of the Company. Each such
officers' certificate shall be made available at all reasonable times for
inspection by the Holder or any Holder of a Warrant executed and delivered
pursuant to Section 6(b) and the Company shall, forthwith after each such
adjustment, mail a copy, by first-class mail, of such certificate to the
Holder or any such holder.
(o) Payments in Lieu of Adjustment. The Holder shall, at its option,
be entitled to receive, in lieu of the adjustment pursuant to Section 7(c)
otherwise required thereof, on (but not prior to) the date of exercise of
the Warrants, the evidences of indebtedness, other securities, cash,
property or other assets which such Holder would have been entitled to
receive if it had exercised its Warrants for shares of Common Stock
immediately prior to the record date with respect to such distribution.
The Holder may exercise its option under this Section 7(o) by delivering
to the Company a written notice of such exercise simultaneously with its
notice of exercise of this Warrant.
SECTION 8. CONSOLIDATION, MERGER OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock) or any sale or transfer
of all or substantially all of the assets of the Company to the Person
formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, the Holder shall have the right
thereafter to exercise this Warrant for the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock for which this
Warrant may have been exercised immediately prior to such consolidation,
merger, sale or transfer. Adjustments for events subsequent to the
effective date of such a consolidation, merger, sale or transfer of assets
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. In any such event, effective provisions
shall be made in the certificate or articles of incorporation of the
resulting or surviving corporation, in any contract of sale, merger,
conveyance, lease, transfer or otherwise so that the provisions set forth
herein for the protection of the rights of the Holder shall thereafter
continue to be applicable; and any such resulting or surviving corporation
shall expressly assume the obligation to deliver, upon exercise, such
shares of stock, other securities, cash and property. The provisions of
this Section 8 shall similarly apply to successive consolidations, mergers,
sales, leases or transfers.
SECTION 9. WARRANT AGENT. At the written request of the Holders of a
majority of the outstanding Warrants, the Company shall as soon as is
reasonably practicable:
(i) appoint a warrant agent to act as agent for the Company in
connection with the issuance, transfer and exchange of the Warrants
and shall enter into an agreement with such warrant agent
reflecting the terms and conditions of such appointment, which
terms and conditions shall be customary for such appointments, and
such other matters as are customarily included in such agreements
so as to facilitate the transfer and registration of the Warrants;
and
(ii) use its reasonable best efforts to cause the Warrants to be
eligible to be publicly traded, including, without limitation,
amending this Warrant to provide terms and conditions necessary and
appropriate for the Warrants to be publicly traded.
SECTION 10. NOTICES. Any notice, demand or delivery authorized by
this Warrant shall be in writing and shall be given to the Holder or to the
Company, as the case may be, at its address (or facsimile number) set forth
below, or such other address (or facsimile number) as shall have been
furnished to the party giving or making such notice, demand or delivery:
If to the Company: Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
with copies to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
and to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Holder: Coleman (Parent) Holdings Inc.
c/o MacAndrews & Forbes Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
with copies to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number
specified herein and the intended recipient confirms the receipt of such
telecopy, or (ii) if given by any other means, when received at the address
specified herein.
SECTION 11. RIGHTS OF THE HOLDER. Prior to the exercise of any
Warrant, the Holder shall not, by virtue hereof, be entitled to any rights
of a shareholder of the Company, including, without limitation, the right
to vote, to receive dividends or other distributions, to exercise any
preemptive right or to receive any notice of meetings of shareholders or
any notice of any proceedings of the Company except as may be specifically
provided for herein.
SECTION 12. GOVERNING LAW. THIS WARRANT AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF DELAWARE, AND THE PERFORMANCE THEREOF SHALL BE
GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13. AMENDMENTS; WAIVERS. Any provision of this Warrant may
be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Holder and the
Company, or in the case of a waiver, by the party against whom the waiver
is to be effective. No failure or delay by either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 14. Interpretation. When a reference is made in this Warrant
to a Section such reference shall be to a Section of this Warrant unless
otherwise indicated. Whenever the words "include", "includes" or
"including" are used in this Warrant, they shall be deemed to be followed
by the words "without limitation". The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Warrant shall
refer to this Warrant as a whole and not to any particular provision of
this Warrant. The definitions contained in this Warrant are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such term. References to
a person are also to its permitted successors and assigns and, in the case
of an individual, to his heirs and estate, as applicable.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed by its duly authorized officer and to be dated as of the date first
above written.
SUNBEAM CORPORATION
By:___________________________________
Name:
Title:
ATTEST:
By:________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
COLEMAN (PARENT) HOLDINGS INC.
By:_________________________________
Name:
Title:
WARRANT EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of the Warrant
after delivery of the Warrant Exercise Notice)
To: Sunbeam Corporation
The undersigned irrevocably exercises the Warrant for the purchase of
__________ shares (the "Shares") of Common Stock, par value $.01 per share,
of Sunbeam Corporation (the "Company") ("Common Stock") at an exercise
price of $_______ per Share and herewith makes payment of $__________ (such
payment being made in cash or by certified or official bank or bank
cashier's check payable to the order of the Company or by any permitted
combination of such cash or check or by the reduction of the number of
shares of Common Stock that otherwise would be issued upon this exercise by
the number of shares of Common Stock that have a value equal to such
exercise price), all on the terms and conditions specified in this Warrant,
surrenders this Warrant and all right, title and interest therein to the
Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified
below and delivered thereto.
Date: _______ __, ____.
______________________________________
(Name - Please Print)
______________________________________
(Signature of Owner)
______________________________________
(Xxxxxx Xxxxxxx)
______________________________________
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
Dated ___________ __, ____
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto ___________________________________________ (the "Assignee"),
(please type or print in block letters)
________________________________________________________________________
(insert address)
its right to purchase up to _____ shares of Common Stock represented by
this Warrant and does hereby irrevocably constitute and appoint
_________________________ Attorney, to transfer the same on the books of
the Company, with full power of substitution in the premises.
Signature: _____________________________________
EXHIBIT B
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT, dated as of August ___, 1998 (this "Amendment"), to
the REGISTRATION RIGHTS AGREEMENT, dated as of March 29, 1998 (the
"Registration Rights Agreement"), by and among SUNBEAM CORPORATION, a
Delaware corporation ("Laser" or "Sunbeam"), and COLEMAN (PARENT) HOLDINGS
INC., a Delaware corporation ("Parent Holdings"). Capitalized terms used in
this Amendment have the meanings ascribed to them in the Registration
Rights Agreement unless otherwise defined herein. References to Articles
and Sections shall, unless otherwise stated, be to the Articles and
Sections of the Registration Rights Agreement. In all respects not
inconsistent with the terms and provisions of this Amendment, the
Registration Rights Agreement shall continue to be in full force and effect
in accordance with the terms and conditions thereof, and is hereby
ratified, adopted, approved and confirmed. From and after the date hereof,
each reference to the Registration Rights Agreement therein or in any other
instrument or document shall be deemed a reference to the Registration
Rights Agreement as amended hereby, unless the context otherwise requires,
and this Amendment and the Registration Rights Agreement shall for all
purposes and matters be considered as one agreement, including that all of
the ministerial and miscellaneous provisions of the Registration Rights
Agreement shall apply equally thereto as so amended and to this Amendment.
WHEREAS, pursuant to the Holdings Merger Agreement, by and
among Sunbeam, a subsidiary of Sunbeam, CLN HOLDINGS INC., a Delaware
corporation and wholly owned subsidiary of Parent Holdings ("Holdings"),
and Parent Holdings, the Holdings Merger was consummated on March 30, 1998
and Holdings became an indirect wholly owned subsidiary of Sunbeam; and
WHEREAS, following consummation of the Holdings Merger, the
shares of Holdings Common Stock issued and outstanding immediately prior to
the effective time of the Holdings Merger were converted into an aggregate
of (A) 14,099,749 fully paid and nonassessable shares of common stock, par
value $.01 per share, of Sunbeam ("Laser Common Stock") and (B)
$159,956,756 in cash, without interest thereon; and
WHEREAS, following the dismissal by Sunbeam of certain of its
executive officers in mid-June 1998, Sunbeam retained certain senior
officers employed by Affiliates of Parent Holdings as executive officers of
Sunbeam; and
WHEREAS, Sunbeam and Parent Holdings have entered into a
Settlement Agreement (the "Settlement Agreement") pursuant to which Sunbeam
will issue to Parent Holdings certain warrants to purchase shares of Laser
Common Stock (the "Warrants") and has agreed to enter into this Agreement;
and
WHEREAS, in order to induce Parent Holdings to enter into the
Settlement Agreement, Sunbeam has agreed to amend the Registration Rights
Agreement and modify the registration rights with respect to the shares of
Laser Common Stock issued to Parent Holdings in the Holdings Merger and to
provide for registration rights with respect to the Warrants and Laser
Common Stock issuable upon exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 is amended with respect to certain of the
definitions therein as follows:
The definition of the term "Agreement" is amended and restated
in its entirety to mean the Registration Rights Agreement as amended by
this Amendment.
The definition of the term "Registrable Securities" is amended
and restated in its entirety to mean (i) the Holdings Merger Stock, (ii)
the Warrants, and (iii) any shares of Laser Common Stock issued pursuant to
the Warrants, and, in each case, any other securities issued or issuable
upon or in respect of such securities by way of conversion, exchange,
dividend, split or combination, recapitalization, merger, consolidation,
other reorganization or otherwise. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when
such securities have been sold or otherwise transferred by Parent Holdings
pursuant to the Shelf Registration Statement or pursuant to Rule 144 under
the Securities Act.
The following defined term shall be added to the list of
definitions in their respective alphabetically ordered positions:
The term "Holdings Merger Stock" shall mean the shares of Laser
Common Stock issued to Parent Holdings in the Holdings Merger.
The term "Warrants" shall mean the warrants to purchase
23,000,000 (Twenty-Three Million) shares of Laser Common Stock issued to
Parent Holdings pursuant to Warrant No. W-1 dated August ___, 1998.
ARTICLE II
REQUIRED REGISTRATION
Sections 2.1, 2.2 and 2.3 of Article II are amended and
restated to read in their entirety as follows:
Section 2.1 Required Registration.
(a) Form S-3. Promptly following a demand to such effect from
any holder of Registrable Securities, Laser shall prepare and file with the
SEC a registration statement (the "Shelf Registration Statement") on an
appropriate form permitting registration of the Registrable Securities so
as to permit the resale of the Registrable Securities pursuant to an
offering on a delayed or continuous basis under the Securities Act and
shall use reasonable best efforts to (i) cause the Shelf Registration
Statement to be declared effective by the SEC as promptly as practicable
thereafter and (ii) permit the Shelf Registration Statement to be used by
Affiliates of Camper for resales of shares of Laser Common Stock held by
such Affiliates ; provided, however, that any such Affiliate using the
Shelf Registration Statement shall agree in writing to be bound by all of
the restrictions, limitations and obligations of Parent Holdings contained
in this Agreement.
(b) Effectiveness. Laser shall use reasonable best efforts to
keep the Shelf Registration Statement continuously effective under the
Securities Act until the date that is the earliest to occur of (i) the date
by which all Registrable Securities have been sold and (ii) the date by
which all Registrable Securities are eligible for immediate sale to the
public without registration under Rule 144 under the Securities Act, with
such sale not being limited by the volume restrictions thereunder or
otherwise.
(c) Amendments/Supplements. Laser shall amend and supplement
the Shelf Registration Statement and the prospectus contained therein if
required by the rules, regulations or instructions applicable to the
registration form used by Laser for such Shelf Registration Statement, if
required by the Securities Act.
(d) Offerings. At any time from and after the date on which the
Shelf Registration Statement is declared effective by the SEC (the
"Effective Date"), Parent Holdings, subject to the restrictions and
conditions contained herein and in the Merger Agreement and the Warrants to
the extent applicable, and subject further to compliance with all
applicable state and federal securities laws, shall have the right to
dispose of all or any portion of the Registrable Securities.
Section 2.2 Holdback Agreement.
From and after the Effective Date, upon the request of Laser,
Parent Holdings shall not effect any public sale or distribution (including
sales pursuant to Rule 144) of Registrable Securities that are equity
securities of Laser, or any securities convertible into or exchangeable or
exercisable for such securities, including the Warrants, (other than any
such sale or distribution of such securities pursuant to registration of
such securities on Form SB-8 or any successor form) during the period
commencing on the date on which Laser commences a Laser Offering through
the sixty (60)-day period immediately following the closing date of such
Laser Offering; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.2 on more than two (2) occasions in
any twelve (12)-month period; and provided, further, that notwithstanding
anything to the contrary in this Section 2.2 or Section 2.3, in no event
shall Parent Holdings be disabled from effecting offers or sales of
Registrable Securities for more than one-hundred-and-twenty (120) days
during any twelve (12)-month period.
Section 2.3 Blackout Provisions.
In the event that, at any time while the Shelf Registration
Statement remains effective, Laser determines in its reasonable judgment
and in good faith that the sale of Registrable Securities would require
disclosure of material information which Laser has a bona fide business
purpose for preserving as confidential, Parent Holdings shall, upon
receiving written notice from Laser of such good faith determination,
suspend sales of the Registrable Securities for a period beginning on the
date of receipt of such notice and expiring on the earlier of (i) the date
upon which such material information is disclosed to the public or ceases
to be material or (ii) forty-five (45) days after the receipt of such
notice from Laser; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.3 on more than two (2) occasions in
any twelve (12) month period; and provided, further, that notwithstanding
anything to the contrary in this Section 2.3 or Section 2.2, in no event
shall Parent Holdings be disabled from effecting offers or sales of
Registrable Securities for more than one-hundred-and-twenty (120) days
during any twelve (12)-month period.
* * *
Section 2.4(a) of Article II is hereby amended by deleting the
word "and" from the end of paragraph (12) thereof, replacing the period at
the end of paragraph (13) thereof with "; and" and adding the following
additional paragraph:
(14) will enter into customary agreements (including an
underwriting agreement in customary form) and take such actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities, including, without limitation, cooperation, and
causing its officers, employees and advisors to cooperate, with the sellers
of such Registrable Securities and the underwriter(s), if any, including
participation in meetings and road shows held in connection with such sale.
ARTICLE III
TRANSFERS OF REGISTRABLE SECURITIES
Sections 3.1 and 3.2 of Article III are amended and restated to
read in their entirety as follows:
Section 3.1 Transferability of Registrable Securities.
(a) Parent Holdings may not Transfer the Registrable
Securities, other than
(1) pursuant to Rule 144;
(2) pursuant to the Shelf Registration
Statement; or
(3) in any other Transfer exempt from registration under
the Securities Act, and as to which Laser has received an
opinion of counsel, reasonably satisfactory to Laser, that such
Transfer is so exempt;
and shall in no event Transfer any Registrable Securities in violation of
the Settlement Agreement.
Section 3.2 Restrictive Legends.
Parent Holdings hereby acknowledges and agrees that, during the
term of this Agreement, all of the Registrable Securities shall include the
legend set forth in Section 7.2 of the Holdings Merger Agreement, the
legend set forth on the Warrants or as provided in the Warrants or as may
otherwise be reasonably appropriate to reflect the fact that such
Registrable Securities have not been issued in transactions registered
under the Securities Act, unless at the time such Registrable Securities
have been registered under the Securities Act.
ARTICLE IV
MISCELLANEOUS
Sections 4.5 and 4.11 of Article IV are amended and restated in
their entirety to read as follows:
Section 4.5 Binding Effect; Assignment.
This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, successors and permitted assigns, but, except
as expressly contemplated herein, neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, directly or
indirectly, by Laser or Parent Holdings without the prior written consent
of the other (except in the case of any assignment in whole or in part by
Parent Holdings to any Affiliate, as to which no such consent shall be
required); provided, that in connection with a bona fide pledge of any
Registrable Securities to secure indebtedness or other obligations, Parent
Holdings may assign its rights, interests and obligations hereunder to the
beneficiary of such pledge in whole or in part. Upon any permitted
assignment (other than in connection with any such bona fide pledge), this
Agreement shall be amended to substitute or add the assignee as a party
hereto in a writing reasonably acceptable to the other party.
Section 4.11 Termination; Restrictive Legend.
This Agreement shall terminate only following such time as
Sunbeam shall have no further obligation under Section 2.1(b) to use its
reasonable best efforts to keep the Shelf Registration Statement effective;
provided, however, that the provisions of Section 2.6 hereof shall survive
termination of this Agreement. It is understood and agreed that any
restrictive legends set forth on any Registrable Securities shall be
removed by delivery of substitute certificates without such legends and
such Registrable Securities shall no longer be subject to the terms of this
Agreement or upon the resale of such Registrable Securities in accordance
with the terms of this Agreement.
ARTICLE V
OTHER
The following provisions shall also apply to this Amendment:
Section 5.1 Effectiveness of this Amendment. The provisions of
this Amendment shall be effective as of the date hereof.
Section 5.2 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 5.3 Governing Law. This Amendment shall be governed by
the laws of the State of New York, without regard to the principles of
conflicts of law thereof.
Section 5.4 No Waiver. The execution, delivery and performance
of this Amendment shall not operate as a waiver of any condition, power,
remedy or right exercisable in accordance with the Registration Rights
Agreement, and shall not constitute a waiver of any provision of the
Registration Rights Agreement, except as expressly provided herein.
Section 5.5 Descriptive Headings. The article and section
headings contained in this Amendment are solely for the purpose of
reference, are not part of the agreement of the parties and shall not in
any way affect the meaning or interpretation of this Amendment.
IN WITNESS WHEREOF, the undersigned hereby agree to be bound by
the terms and provisions of this Amendment as of the date first above
written.
SUNBEAM CORPORATION
By: ____________________________
Name:
Title:
XXXXXXX (PARENT) HOLDINGS INC.
By: _____________________________
Name:
Title:
