Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of
March 17, 2000 is by and among Tabletop Holdings, Inc., a Delaware corporation
(together with any corporate successor thereto, whether by merger,
consolidation, or otherwise, the "COMPANY"), Tabletop Holdings, LLC, a Delaware
limited liability company (the "LLC"), and the Persons named in SCHEDULE I as
Purchasers (the "PURCHASERS"). Capitalized terms used but not otherwise defined
herein have the meanings set forth in SECTION 8 hereof.
WHEREAS, the Company and the LLC deem it desirable for the Company to
grant certain registration rights to the Purchasers in order to induce the
Purchasers to purchase the Membership Interests pursuant to the terms of the LLC
Agreement and to induce the LLC to make a capital contribution to the Company.
NOW, THEREFORE, in consideration of the mutual promises made herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. At any time after the date hereof
and prior to an Initial Public Offering, the LLC (and, upon the LLC's
dissolution, the holders of a majority of the Pegasus Registrable Securities
then outstanding) may request registration under the Securities Act of all or
any portion of their Registrable Securities on Form S-1 or any similar long-form
registration or successor form adopted by the Securities and Exchange Commission
(a "LONG-FORM REGISTRATION"). At any time after the Company's Initial Public
Offering, (i) the LLC may request up to three Long-Form Registrations and an
unlimited number of Short-Form Registrations (as defined below) and (ii) the
Persons holding a majority of the Mezzanine Registrable Securities at the time
of such request may request one Long-Form Registration and an unlimited number
of Short Form Registrations, PROVIDED, HOWEVER, that no request for a such a
registration shall be made unless the minimum anticipated offering price of the
Registrable Securities requested to be included in the Demand Registration,
before underwriting discounts and commissions, is $20,000,000, or more. If after
the Company's Initial Public Offering, the LLC dissolves: (i) the holders of a
majority of the Registrable Securities (other than the Mezzanine Registrable
Securities) then outstanding, may request up to two Long-Form Registrations, and
(ii) the holders of a majority of the Registrable Securities (other than the
Mezzanine Registrable Securities) then outstanding may request an unlimited
number of registrations under the Securities Act of all or any portion of their
Registrable Securities on Forms S-2 or S-3 or any similar short-form
registration or successor form adopted by the Securities and Exchange Commission
("SHORT-FORM REGISTRATIONS"), if available; PROVIDED, HOWEVER, that no request
for a such a registration shall be made unless the minimum anticipated offering
price of the Registrable Securities requested to be included in the Demand
Registration, before underwriting discounts and commissions, is $20,000,000, or
more.
All requests for Demand Registrations shall be made by giving
written notice to the Company (the "DEMAND NOTICE"). Each Demand Notice shall
specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten days after receipt of any Demand Notice, the Company shall give written
notice of such requested registration to all other holders of Registrable
Securities and, subject to the provisions of SECTION 1(d) below, shall include
in such registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 15 days after
the receipt of the Company's notice.
(b) EXPENSES: WITHDRAWAL. The Company shall pay all
Registration Expenses in all Demand Registrations. A registration shall not
count as one of the permitted Long-Form Registrations until it has become
effective or if the holders of Registrable Securities initially requesting such
registration are not able to register and sell at least 85% of the Registrable
Securities requested to be included in such registration; PROVIDED that the
Company shall in any event pay all Registration Expenses in connection with any
registration initiated as a Demand Registration whether or not it has become
effective and whether or not such registration has counted as one of the
permitted Long-Form Registrations. All Long-Form Registrations shall be
underwritten registrations unless otherwise requested by the holders of a
majority of the Registrable Securities included in the applicable Long-Form
Registration.
(c) SHORT-FORM REGISTRATIONS. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Company shall use its best efforts to make
Short-Form Registrations on Form S-3 (or any successor form adopted by the
Securities and Exchange Commission) available for the sale of Registrable
Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requesting registration, the Company shall include in such registration the
number which can be so sold in the following order of priorities: (i) FIRST, the
Registrable Securities requested to be included in such registration pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (ii) SECOND, other securities requested to
be included in such registration.
(e) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall
not be obligated to effect any Demand Registration which is a Long Form
Registration within 180 days after the effective date of a previous Demand
Registration which was a Long-Form Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to SECTION 2 and in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone for up to 180 days
the filing or the effectiveness of a registration statement for a Demand
Registration if the Company's board of directors (the "BOARD") determines in its
reasonable good faith judgment that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; PROVIDED that in such event, the
holders of Registrable Securities initially requesting such Demand Registration
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand
Registrations hereunder and the Company shall pay all Registration Expenses in
connection with such withdrawn registration. The Company may delay a Demand
Registration hereunder only once during any period of 12 consecutive months.
(f) SELECTION OF UNDERWRITERS. The Board shall select the
investment banker(s) and manager(s) to administer any Long-Form Registration
and, if applicable, any Short-Form Registration.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement (including SECTION 9(d)), the Company shall not grant to any Persons
the right to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, without the prior written consent of the holders of a majority
of the Pegasus Registrable Securities then outstanding (or, if none, a majority
of the Registrable Securities then outstanding); PROVIDED that the Company may
grant rights to other Persons to participate in Piggyback Registrations so long
as such rights are expressly subordinate to the rights of the holders of
Registrable Securities with respect to such Piggyback Registrations.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration, the rights as to which are set forth in SECTION 1(a)) and
the registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), the Company shall give prompt written
notice (in any event within three business days after its receipt of notice of
any exercise of demand registration rights other than under this Agreement) to
all holders of Registrable Securities of its intention to effect such a
registration and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses shall be paid
by the Company in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) FIRST, the securities the Company proposes to sell, (ii)
SECOND, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iii) THIRD, other securities requested to be
included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration, the Company shall include in such registration (i)
FIRST, the securities requested to be included therein by the holders requesting
such registration (subject to compliance with SECTION 1(g)) and the Registrable
Securities requested to be included in such registration, pro rata among the
holders of any such securities on the basis of the number of securities owned by
each such holder, and (ii) SECOND, other securities requested to be included in
such registration.
(e) SELECTION OF UNDERWRITERS. The Board shall select the
investment banker(s) and manager(s) to administer the offering.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not (unless it has received
the prior written consent of the holders of a majority of the Registrable
Securities then outstanding) file or cause to be effected any other registration
of any of its equity securities or securities convertible or exchangeable into
or exercisable for its equity securities under the Securities Act (except on
Form S-4 or S-8 or any successor form adopted by the Securities and Exchange
Commission), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least 180 days has elapsed from
the effective date of such previous registration.
3. HOLDBACK AGREEMENTS.
(a) HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144 of the Securities Act) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and (i) the
180-day period beginning on the effective date of the Initial Public Offering in
the case of the Initial Public Offering and (ii) the 90-day period beginning on
the effective date of any other underwritten Demand Registration or any
underwritten Piggyback Registration in which Registrable Securities are included
(in each case, except as part of such underwritten registration), unless in each
case the underwriters managing the registered public offering otherwise agree.
(b) THE COMPANY. The Company (i) shall not effect any public
sale or distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days
prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-4 or S-8 or any successor form adopted by
the Securities and Exchange Commission), unless the underwriters managing the
registered public offering otherwise agree, and (ii) shall cause each holder of
its Common Stock, or any securities convertible into or exchangeable or
exercisable for Common Stock, purchased from the Company at any time after the
date of this Agreement (other than in a registered public offering or pursuant
to Rule 144) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective (PROVIDED that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities 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 such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(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 any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (PROVIDED that the Company shall 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 subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, 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 to state any fact necessary to make the statements
therein not misleading, and, at the request of any such seller, the Company
shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, representatives, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement which satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(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 Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
(n) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of the Registrable
Securities.
5. REGISTRATION EXPENSES.
(a) EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, and fees and disbursements of counsel for
the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "REGISTRATION EXPENSES"), shall be borne
as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed.
(b) REIMBURSEMENT OF COUNSEL. In connection with each Demand
Registration and each Piggyback Registration, the Company shall reimburse the
holders of Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Pegasus Registrable Securities included in such registration
(or, if none, a majority of the Registrable Securities included in such
registration) and for the reasonable fees and disbursements of each additional
counsel retained by any holder of Registrable Securities solely for the purpose
of rendering a legal opinion to underwriters on behalf of such holder in
connection with any underwritten Demand Registration or Piggyback Registration.
(c) PAYMENT OF CERTAIN EXPENSES BY HOLDERS OF REGISTRABLE
SECURITIES. All fees and expenses of counsel for any holder of Registrable
Securities (other than fees and expenses to be reimbursed by the Company as set
forth in SECTION (b) above) and 50% of the underwriting discounts and
commissions and transfer taxes relating to the Registrable Securities included
in any registration hereunder shall be borne and paid by the holders of such
Registrable Securities in proportion to the aggregate selling price of the
securities to be so registered by such holders.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers and directors and each
Person that controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses caused by 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, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
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, shall indemnify the Company,
its representatives 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 such holder; PROVIDED that the obligation
to indemnify shall be individual, not joint and several, for each holder and
shall be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
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 shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall 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 for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the
indemnified party or any officer, director, representative or controlling Person
of such indemnified party and shall 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 such that such provisions provide
the same obligations and benefits to the indemnified party as those which would
have been applicable had the indemnification provisions in SECTIONS 6(a) and (b)
been available taking into account all of the limitations set forth in SECTIONS
6(a) and (b).
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; PROVIDED that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder or
holder's intended method of distribution) or to undertake any indemnification
obligations to the Company with respect thereto, except as otherwise provided in
SECTION 6(b) hereof, or to the underwriters with respect thereto, except as
otherwise provided in SECTION 6(a) hereof.
8. DEFINITIONS.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company and any security issued in respect of or in exchange for such Common
Stock, whether in connection with a stock dividend or distribution, stock split,
merger, consolidation, exchange, reorganization, recapitalization or otherwise.
"INITIAL PUBLIC OFFERING" means the first underwritten sale of Common
Stock by the Company to the public registered under the Securities Act on Form
S-1 or any similar Long-Form Registration or successor form adopted by the
Securities and Exchange Commission.
"LLC AGREEMENT" means that certain Amended and Restated Limited
Liability Company Agreement, dated as of March 8, 2000, entered into by and
among the LLC and the Members of the LLC, as amended from time to time in
accordance with its terms.
"MEMBERS" has the meaning ascribed to such term in the LLC Agreement.
"MEMBERSHIP INTERESTS" has the meaning ascribed to such term in the
LLC Agreement.
"MEZZANINE REGISTRABLE SECURITIES" means any shares of Common Stock
issued with respect to the Warrants and/or issuable upon exercise of the
Warrants.
"PEGASUS" means Pegasus Partners II, L.P.
"PEGASUS REGISTRABLE SECURITIES" means Registrable Securities
distributed upon liquidation of the LLC to the holders of any Membership
Interests initially issued to Pegasus under the LLC Agreement.
"PERSON" has the meaning ascribed to such term in the LLC Agreement.
"REGISTRABLE SECURITIES" means (i) any Common Stock issued by the
Company to the LLC, (ii) any Common Stock distributed to the holders of any
Membership Interests (or a permitted transferee of the Membership Interests
described in Section 6.2(b)(iii) of the LLC Agreement) upon the dissolution and
liquidation of the LLC, (iii) any Common Stock issued or issuable with respect
to the securities referred to in clauses (i) and (ii) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, conversion, consolidation or other reorganization, (iv) any other Common
Stock of the Company held by any holder of Registrable Securities and (v) except
as otherwise provided in this Agreement, the Mezzanine Registrable Securities;
PROVIDED that with respect to any Registrable Securities, such securities shall
cease to be Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144 of
the Securities Act (or similar rule then in force as promulgated by the
Securities and Exchange Commission).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"WARRANTS" means the warrants to purchase 450,000 shares of Common
Stock of the Company initially issued to the Persons identified as Mezzanine
Investors on SCHEDULE I hereto.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any
bond or other security) for specific performance and for other injunctive relief
in order to enforce or prevent violation of the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only (i) prior
to the dissolution of the LLC, upon the prior written consent of the Company and
the LLC or (ii) after the dissolution of the LLC, the holders of a majority of
the Pegasus Registrable Securities then outstanding (or, if no Pegasus
Registrable Securities are then outstanding, a majority of the Registrable
Securities then outstanding); PROVIDED that if any such amendment or waiver
would adversely affect any class of Registrable Securities relative to the
holders of Pegasus Registrable Securities voting in favor of such amendment or
waiver, such amendment or waiver shall also require the approval of the holders
of a majority of the Registrable Securities held by all holders so adversely
affected.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement. Any Member may at any time after the date hereof,
with the prior written approval of the LLC and the Company, become a party to
this Agreement by executing a counterpart to this Agreement agreeing to be bound
by the provisions hereof as if such Member were an original signatory hereto
(which joinder shall not constitute a modification, amendment, or waiver
hereof). Upon the execution of such counterpart SCHEDULE I hereto shall be
amended to identify such Member as a Purchase.
(h) DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT
CONSTRUCTION. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and singular
forms of nouns, pronouns, and verbs shall include the plural and vice versa.
Reference to any agreement, document, or instrument means such agreement,
document, or instrument as amended or otherwise modified from time to time in
accordance with the terms thereof, and if applicable hereof. The use of the
words "include," "includes" or "including" in this Agreement shall be by way of
example rather than by limitation. The use of the words "or," "either" or "any"
shall not be exclusive. The parties hereto have participated jointly in the
negotiating and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation
arises, this Agreement shall be construed as if drafter jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
(i) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE
SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when (a) delivered
personally to the recipient, (b) telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service (charges prepaid)
that same day) if telecopied before 5:00 p.m. New York City time on a business
day, and otherwise on the next business day, or (c) one business day after being
sent to the recipient by reputable overnight courier service (charges prepaid).
Such notices, demands and other communications shall be sent to the Company at
the address set forth below and to any holder of Registrable Securities at such
address as indicated by the Company's records, or at such address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. The Company's address is:
c/o Pegasus Partners II, L.P.
00 Xxxxx Xxxx
Xxx Xxx, XX 00000
Attention: Xxxxx Uri
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(k) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
public holiday as specified in 5 U.S.C. Section 6103(a), the time period shall
automatically be extended to the business day immediately following such
Saturday, Sunday or legal public holiday.
(l) DELIVERY BY FACSIMILE. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through
the use of a facsimile machine as a defense to the formation or enforceability
of a contract and each such party forever waives any such defense.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TABLETOP HOLDINGS INC.
By: /s/ Xxxxx Uri
---------------------------------
Name: Xxxxx Uri
Its: Vice-President
TABLETOP HOLDINGS, LLC
By: /s/ Xxxxx Uri
---------------------------------
Name: Xxxxx Uri
Its: Vice-President
Registration Rights Agreement
MEZZANINE INVESTORS:
X.X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.,
its General Partner
By: /s/ Illegible
--------------------------------------
Name:
A Managing Member
X.X. XXXXXXX MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, Ltd.,
its General Partner
By: /s/ Illegible
--------------------------------------
Name:
A Managing Member
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Its Authorized Representative
GARMARK PARTNERS, L.P.
By: Garmark Associates L.L.C.,
its General Partner
By: /s/ Illegible
----------------------------------
Authorized Signatory
By: /s/ Illegible
----------------------------------
Authorized Signatory
