REGISTRATION RIGHTS AGREEMENT
THIS IS A REGISTRATION RIGHTS AGREEMENT, dated as of July 31, 2002
(this "Agreement"), by and among OEP Imaging Corporation, a Delaware
corporation (the "Company"), Polaroid Corporation, a Delaware corporation
("Polaroid") and, solely for the purpose of agreeing to be bound by the
provisions in Sections 7.1, 8.1 and 8.2 hereinafter, One Equity Partners,
LLC, a Delaware limited liability company ("OEP").
Background
A. This Agreement is being entered into in connection with the
consummation of the transactions contemplated by the Second Amended and
Restated Asset Purchase Agreement, dated as of July 3, 2002 (the "Asset
Purchase Agreement"), between the Company, Polaroid and certain
subsidiaries of Polaroid.
B. In connection with the consummation of the transactions
contemplated by the Asset Purchase Agreement, the Company has issued to
Polaroid the Sellers' Stock (as defined in the Asset Purchase Agreement),
consisting of (i) shares of Series A 8.0% Cumulative Compounding Preferred
Stock, par value $.001 per share, of the Company (the "Preferred Stock"),
and (ii) shares of Common Stock, par value $.001 per share, of the Company
(the "Common Stock").
C. The Company, Polaroid and OEP wish to set forth herein certain
agreements regarding certain rights and obligations with respect to the
Registrable Securities (as hereinafter defined).
TERMS
In consideration of the mutual covenants contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
REGISTRATION RIGHTS
1.1. Registration Rights; Certain Limitations. Polaroid shall have
registration rights with respect to the Registrable Securities as set forth
in this Agreement. Notwithstanding any other provision of this Agreement to
the contrary, however, (i) Polaroid shall not be entitled to request any
Demand Registration (as hereinafter defined), and the Company shall not be
obligated to prepare, file or cause to become effective any registration
statement in connection with any Demand Registration, involving any sale or
other disposition of Registrable Securities other than the distribution by
Polaroid of Registrable Securities to the creditors of Polaroid in
connection with and as required by the plan of reorganization or plan of
liquidation which is confirmed in connection with the current bankruptcy
proceedings of Polaroid (the "Distribution"), and (ii) Polaroid shall not
be entitled to any registration rights with respect to the Registrable
Securities (regardless of whether a Demand Registration shall have
previously been requested), and the Company shall not be obligated to
prepare, file or cause to become effective any registration statement in
connection with any Demand Registration if Polaroid shall have received on
or prior to the first anniversary of the date of this Agreement a letter
signed on behalf of the Company (the "Letter") informing Polaroid that the
Bankruptcy Court order contemplated by Section 7.05 of the Asset Purchase
Agreement has been entered and is no longer subject to appeal; provided,
however, that if Polaroid shall have received the Letter in accordance with
clause (ii) of this sentence, the Company shall register the Preferred
Stock and the Common Stock pursuant to Section 12(g) of the Exchange Act
(as hereinafter defined) on or prior the first anniversary of the date of
this Agreement. Without limiting the generality of clause (i) of the
preceding sentence, Polaroid shall not be entitled to request a Demand
Registration which contemplates a registration in which Registrable
Securities are sold to an underwriter for reoffering to the public, and no
such underwritten offering shall be made pursuant to any Demand
Registration.
ARTICLE II
DEFINITIONS
2.1. Definitions. As used herein, the following terms shall have
the following meanings.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended.
"Business Day" means any day that is not a Saturday or Sunday or a
day on which banks are required or permitted to be closed in the State of
New York.
"Current Market Price" means, in respect of any share of Common
Stock on any date herein specified, (i) for so long as there shall then be
a public market for the Preferred Stock or the Common Stock, the average of
the Daily Market Prices for the 20 consecutive Business Days commencing 30
Business Days before such specified date, and (ii) if there is then no
public market for the Preferred Stock or the Common Stock, the fair market
value per share of Common Stock at such specified date as reasonably
determined in good faith by the board of directors of the Company,
including the approval of at least one director designated by Polaroid;
provided, however, that if a director designated by Polaroid does not
approve the fair market value per share of Common Stock as determined by
the board of directors of the Company, the fair market value per share of
Common Stock shall be determined by a nationally recognized investment
banking firm mutually acceptable to the Company and Polaroid.
"Daily Market Price" means (i) if the Preferred Stock or Common
Stock is then listed and traded on the New York Stock Exchange, Inc. (the
"NYSE"), the closing price on such day as reported on the NYSE Composite
Transactions Tape; (ii) if the Preferred Stock or Common Stock is not then
listed and traded on the NYSE, the closing price on such day as reported by
the principal national securities exchange on which the Preferred Stock or
Common Stock is then listed and traded; (iii) if the Preferred Stock or
Common Stock is not then listed and traded on any such securities exchange,
the last reported sale price on such day on the Nasdaq National Market (the
"Nasdaq Market"); (iv) if the Preferred Stock or Common Stock is not then
listed and traded on any such securities exchange and not traded on the
Nasdaq Market, the last reported sale price on such day on the Nasdaq
SmallCap Market (the "Nasdaq SmallCap Market"); (v) if the Preferred Stock
or Common Stock is not then listed and traded on any such securities
exchange and not traded on the Nasdaq Market or the Nasdaq SmallCap Market,
the average of the highest reported bid and lowest reported asked price on
such day as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System (the "NASDAQ System"); or (vi) if the
Preferred Stock or Common Stock is not then listed and traded on any such
securities exchange, not traded on the Nasdaq Market or the Nasdaq SmallCap
Market and bid and asked prices are not reported by the NASDAQ System, the
average of the closing bid and asked prices, as reported by The Wall Street
Journal for the over-the-counter market.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization or a governmental entity or
any department, agency or political subdivision thereof.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation: (i) all registration and filing fees, (ii) fees and
expenses relating to compliance with securities or blue sky laws (including
fees and expenses of counsel in connection with blue sky qualifications of
the securities registered), (iii) printing, messenger and delivery
expenses, (iv) internal expenses of the Company (including all salaries and
expenses of its officers and employees performing legal or accounting
duties), (v) fees and expenses of counsel for the Company and fees and
expenses for independent certified public accountants retained by the
Company (including the expenses of any comfort letters or costs associated
with the delivery by independent certified public accountants of a comfort
letter or comfort letters), and (vi) fees and expenses of any special
experts retained by the Company in connection with such registration. Under
no circumstances shall "Registration Expenses" include the fees and
expenses of any underwriters or any underwriting discounts or commissions.
"Registrable Securities" means 31,230 shares of Preferred Stock
and 1,076,923 shares of Common Stock issued to Polaroid in connection with
the consummation of the transactions contemplated by the Asset Purchase
Agreement, in any case until (i) a registration statement covering such
securities has been declared effective by the SEC and such securities have
been disposed of pursuant to the Distribution, (ii) such securities have
been disposed of under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act have been met, or such securities may be disposed of
pursuant to Rule 144(k), or (iii) such securities may be disposed of
without subsequent registration under any other provisions of the
Securities Act.
"Rule 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
Unless otherwise defined in this Agreement, all terms used in this
Agreement shall have the meanings ascribed to them in the Asset Purchase
Agreement.
ARTICLE III
DEMAND REGISTRATIONS
3.1. Demand Registrations.
(a) Subject to Sections 1.1 and 3.1(b), Polaroid may request
registration under the Securities Act of all or part of the Registrable
Securities on Form S-1 (or any similar long-form registration) or, if
available, on Form S-2 or Form S-3 (or any similar short-form
registration). Each registration requested pursuant to this Section 3.1(a)
is referred to herein as a "Demand Registration". Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered.
(b) Polaroid shall not be entitled to request any Demand
Registration at any time on or after the fourth anniversary of the date of
this Agreement. The Company will not be obligated to effect any Demand
Registration within six months after the effective date of a previous
Demand Registration, nor will the Company be obligated to effect more than
two Demand Registrations in the aggregate (it being understood that
Polaroid shall only be entitled to request the second such Demand
Registration if the Distribution of all of the Registrable Securities has
not been completed pursuant to the first Demand Registration requested by
Polaroid).
(c) The Company shall use its reasonable best efforts to have the
registration statement in connection with the first Demand Registration
requested by Polaroid declared effective by the SEC on or prior to the
first anniversary of the date of this Agreement. The Company shall use its
reasonable best efforts to have the registration statement in connection
with the second Demand Registration requested by Polaroid, if any, declared
effective by the SEC as soon as practicable after the filing thereof.
(d) Notwithstanding any other provision of this Agreement to the
contrary, the Company may delay the preparation, filing or effectiveness of
any registration statement in connection with a Demand Registration for a
period not to exceed 45 days in any three-month period, or for three
periods not to exceed an aggregate of 90 days in any 12-month period, for
valid business reasons, to be determined in the reasonable judgment of the
board of directors of the Company, including without limitation the
acquisition or divestiture of assets, pending corporate developments and
similar events; provided, however, that prior to instituting any such delay
the Company shall provide Polaroid with written notice thereof, which
notice need not specify the nature of the event giving rise to such delay,
and shall obtain the written consent of Polaroid thereto (which consent
shall not be unreasonably withheld).
ARTICLE IV
REGISTRATION PROCEDURES
4.1. Registration Procedures. Whenever Polaroid has requested that
any Registrable Securities be registered pursuant to Section 3.1 hereof,
the Company will, subject to the provisions hereof, use its reasonable best
efforts to effect the registration of such Registrable Securities, and
pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective within the time
periods specified in Section 3.1(c) above (provided, that before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to Polaroid copies of all such documents
proposed to be filed);
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the Distribution of all Registrable Securities covered by such
registration statement is completed, but not more than 30 days;
(c) furnish to Polaroid such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included
in such registration statement (including each preliminary prospectus) and
such other documents as Polaroid may reasonably request in order to
facilitate the Distribution of such Registrable Securities;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as Polaroid reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable
Polaroid to consummate the Distribution in such jurisdictions of such
Registrable Securities (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process (i.e., service of process which is not limited solely to
securities law violations) in any such jurisdiction);
(e) notify Polaroid, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading,
and, at the request of Polaroid, the Company will promptly prepare a
supplement or amendment to such prospectus so that, as thereafter
delivered, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and, if not so listed, to
be listed on the Nasdaq Market and, if not so listed on the Nasdaq Market,
to be listed on the Nasdaq SmallCap Market and, if not so listed on the
Nasdaq SmallCap Market, to cause to have the bid and asked prices for such
Registrable Securities reported on the NASDAQ System or, failing that, to
cause to have such Registrable Securities traded in the over-the-counter
market;
(g) not later than the effective date of the registration
statement, obtain a CUSIP number for the Registrable Securities;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(i) enter into such customary agreements and take all such other
actions as Polaroid may reasonably request in order to expedite or
facilitate the Distribution of such Registrable Securities;
(j) make available for inspection by Polaroid and any attorney,
accountant or other agent retained by Polaroid, all financial and other
records, pertinent corporate documents and properties of the Company as may
reasonably be requested, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by Polaroid, any attorney, accountant or agent in connection with
such registration statement;
(k) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to the
creditors of Polaroid who shall have received Registrable Securities
pursuant to the Distribution, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such registration
statement for Distribution in any jurisdiction, use its reasonable best
efforts promptly to obtain the withdrawal of such order;
(m) use its reasonable best efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities (other than as
provided for in Section 4.1(d) above) as may be necessary to enable
Polaroid to consummate the Distribution of such Registrable Securities; and
(n) in connection with any Distribution of Registrable Securities
that will result in such securities no longer being Registrable Securities,
cooperate with Polaroid to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and to register such Registrable
Securities in such amounts and denominations and in such names as Polaroid
may request at least two Business Days prior to the Distribution of such
Registrable Securities.
4.2. Polaroid Information. Polaroid may not include any
Registrable Securities in a registration statement pursuant to a Demand
Registration unless and until Polaroid furnishes to the Company in writing,
within 15 days after receipt of a request therefor, the information
specified in Item 507 of Regulation S-K under the Securities Act and such
other information as the Company may reasonably request for use in
connection with any such registration statement. Polaroid agrees to furnish
promptly to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by Polaroid not
materially misleading.
ARTICLE V
REGISTRATION EXPENSES
5.1. Registration Expenses. Except as otherwise expressly set
forth herein, all Registration Expenses incident to the Company's
performance or compliance with this Agreement shall be borne by the
Company.
ARTICLE VI
INDEMNIFICATION
6.1. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by
law, Polaroid, its directors and officers, and each Person who controls
Polaroid (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse Polaroid, such
director, officer or controlling Person for any legal or other expenses
reasonably incurred by Polaroid, such director, officer or controlling
Person in connection with the investigation or defense of such loss, claim,
damage, liability or expense, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by
Polaroid expressly for use therein or by Polaroid's failure to deliver a
copy of the registration statement or prospectus or any amendment or
supplement thereto after the Company has furnished Polaroid with a
sufficient number of copies of the same.
(b) In connection with any registration statement in which
Polaroid is participating, Polaroid will furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use
in connection with any such registration statement or prospectus and, to
the extent permitted by law, will indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading but only to the
extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by Polaroid.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification; provided, that the failure to notify the
indemnifying party shall not relieve it from any liability to the
indemnified party hereunder except to the extent the indemnifying party is
actually prejudiced thereby, and (ii) unless such indemnified party has
been advised in writing by counsel that it would be impermissible under the
applicable standards of professional conduct for one law firm to represent
both the Company and the indemnified party, permit such indemnifying party
to assume the defense of such claim with counsel reasonably satisfactory to
the indemnified party. If such defense is assumed, the indemnifying party
will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim.
(d) The indemnification provided hereunder will remain in full
force and effect regardless of any investigation made by or on behalf of
the indemnified party or any director, officer or controlling Person of
such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event the
Company's indemnification is unavailable for any reason.
ARTICLE VII
CERTAIN COVENANTS
7.1. Directors and Voting Agreement. From the date of this
Agreement until the earlier of the date the registration statement in
connection with the first Demand Registration requested by Polaroid is
declared effective by the SEC or the date Polaroid receives the Letter,
each of Polaroid and OEP shall take all actions necessary (including
without limitation voting the Preferred Stock and Common Stock entitled to
vote and owned by each of them, calling special meetings of stockholders
and executing and delivering written consents) to ensure that the board of
directors of the Company will include two directors designated by Polaroid.
7.2. Anti-Dilution Protection. From the date of this Agreement
until the earlier of the date the registration statement in connection with
the first Demand Registration requested by Polaroid is declared effective
by the SEC or the date Polaroid receives the Letter, the Company shall not
issue any shares of its equity securities (or any debt securities
convertible into or exchangeable for equity securities) to OEP or any of
its affiliates (as such term is defined pursuant to Rule 12b-2 promulgated
under the Exchange Act) without obtaining the prior written consent of
Polaroid; provided, however, that the foregoing restriction shall not apply
to (i) shares of Preferred Stock and Common Stock issued in connection with
the consummation of the transactions contemplated by the Asset Purchase
Agreement, (ii) shares of Preferred Stock or Common Stock issued at an
issue price per share equal to or greater than 95% of the Current Market
Price, (iii) securities issued upon the conversion or exercise of any
security, (iv) securities issued as a dividend or (v) any transaction in
respect of a security that is available to all holders of such security on
a pro rata basis.
7.3. Confidential Information. Polaroid hereby agrees that
Confidential Information (as defined herein) has been and will be made
available to Polaroid in connection with its interest in the Company. From
the date hereof until such time as the Company shall have a class of
securities registered pursuant to Section 12(g) of the Exchange Act, the
Company shall deliver to Polaroid (or the plan administrator of Polaroid's
bankruptcy estate; provided that such plan administrator has agreed in
writing to be subject to the provisions of this Section 7.3) unaudited
quarterly financial statements and audited annual consolidated financial
statements on or around the same time as the Company is required to deliver
financial statements to its senior lenders. Polaroid agrees not to divulge,
communicate, use to the detriment of the Company for Polaroid's benefit or
the benefit of any other person, or misuse in any way, in whole or part,
Confidential Information; provided, however, that Confidential Information
may be disclosed (i) to Polaroid's Representatives (as defined herein) in
the normal course of the performance of their duties, (ii) to the extent
required by applicable statute, law, rule or regulation (including
complying with any oral or written questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process to which Polaroid is subject), or (iii) if the prior written
consent of the Board of Directors of the Company has been obtained.
Polaroid and the plan administrator may also provide copies of the
financial statements referred to above to holders of unsecured claims
against Polaroid who request such information and who have a significant
amount of unsecured claims provided that the recipients enter into a
confidentiality agreement with the Company reasonably satisfactory to the
Company. The Company and Polaroid agree to negotiate the minimum amount of
unsecured claims that will be necessary for such a holder to receive such
financial statements, the intention being to minimize the number of
recipients, to the extent reasonable, given the private nature of the
Company . "Confidential Information" means any information concerning the
Company, its financial condition, business, subsidiaries, operations,
prospects, trade secrets or other intellectual property rights, personnel
information, know-how, customer lists or other confidential or proprietary
information or data in the possession of or to be furnished to Polaroid
(whether furnished to Polaroid in its capacity as a stockholder of the
Company, by virtue of its present or former position as, or right to
designate, a director of the Company, or otherwise); provided, that the
term "Confidential Information" does not include information which (a) was
or becomes generally available publicly other than as a result of a
disclosure by Polaroid or Polaroid's directors, officers, employees,
agents, counsel, investment advisors, consultants or representatives (all
such persons being collectively referred to as "Representatives") in
violation of this Section 7.3, or (b) was or becomes available to Polaroid
on a nonconfidential basis from a source other than the Company, any
regulatory entity or Polaroid or its Representatives, provided, that such
source is or was (at the time of receipt of the relevant information) not,
to the best of such Polaroid's knowledge, bound by a confidentiality
agreement with the Company or another person. Polaroid agrees to hold, as
the property of the Company, all memoranda, books, papers, letters and
other data (and all copies thereof or therefrom) made by Polaroid or
otherwise coming into Polaroid's possession, and at any time deliver the
same to the Company upon its demand.
7.4. Transfer Restriction. Prior to the first anniversary of the
date of this Agreement, Polaroid shall not sell, assign, convey, transfer,
exchange, pledge, hypothecate, make gifts of or in any manner whatsoever
distribute or dispose of or encumber or grant any rights or interests in or
in respect of, create any voting trust or other agreement or arrangement
with respect to the transfer or grant of voting rights or any other
beneficial interest in, create any other claim or make any other transfer
or disposition whatsoever, whether voluntary or involuntary, affecting the
right, title or interest in or possession of the Registrable Securities
(including any Distribution of the Registrable Securities).
ARTICLE VIII
MISCELLANEOUS
8.1. Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such
amendment, modification or waiver is set forth in a writing executed by the
Company, Polaroid and OEP. No course of dealing between or among any
persons having any interest in this Agreement will be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
8.2. Successors and Assigns; Entire Agreement. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, permitted assigns, executors, administrators
and heirs. This Agreement and any rights or obligations existing hereunder
may not be assigned or otherwise transferred by any party without the prior
written consent of the other parties hereto. This Agreement sets forth the
entire agreement and understanding among the parties as to the subject
matter hereof and merges and supersedes all prior discussions, agreements
and understandings, written or oral, relating to the subject matter of this
Agreement (it being understood that the Company, Polaroid and OEP are
contemporaneously entering into other agreements and instruments in
connection with the consummation of the transactions contemplated by the
Asset Purchase Agreement).
8.3. Separability. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be
illegal, invalid or otherwise unenforceable by a court of competent
jurisdiction, the remaining provisions shall remain in full force and
effect unless deletion of such provision causes this Agreement to become
materially adverse to any party, in which event the parties shall use
reasonable efforts to arrive at an accommodation which best preserves for
the parties the benefits and obligations of the offending provision.
8.4. Notices. All notices provided for or permitted hereunder
shall be made in writing by hand-delivery, registered or certified
first-class mail, fax or reputable courier guaranteeing overnight delivery
to the other party at the following addresses (or at such other address as
shall be given in writing by any party to the others):
If to the Company, to:
OEP Imaging Corporation
c/o One Equity Partners LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a required copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Polaroid, to:
Polaroid Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a required copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
and a required copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
All such notices shall be deemed to have been duly given: when delivered by
hand, if personally delivered; four Business Days after being deposited in
the mail, postage prepaid, if mailed; when confirmation of transmission is
received, if faxed; and on the next Business Day, if timely delivered to a
reputable courier guaranteeing overnight delivery.
8.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York,
without giving effect to principles of conflicts of law, except to the
extent that Delaware law shall be mandatorily applicable.
8.6. Headings. The headings preceding the text of the sections and
subsections of this Agreement are for convenience of reference only and
shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
8.7. Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which
taken together shall constitute one and the same instrument.
8.8. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
8.9. Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any
party injured or to be injured by such breach, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that the remedy at
law, including monetary damages, for breach of such provision will be
inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
8.10. Pronouns. Whenever the context may require, any pronouns
used herein shall be deemed also to include the corresponding neuter,
masculine or feminine forms.
8.11. Third Party Beneficiary. Until the confirmation of
Polaroid's plan of reorganization or plan of liquidation under the
Bankruptcy Code, the Official Committee of Unsecured Creditors of Polaroid
appointed in connection with the current bankruptcy proceedings of Polaroid
shall be deemed to be a third party beneficiary of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
OEP IMAGING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
POLAROID CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
The undersigned is executing this
Agreement solely for the purposes
of indicating its agreement to Sections 7.1, 8.1
and 8.2, and for no other purpose:
ONE EQUITY PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
[Signature Page to Registration Rights Agreement]
