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Exhibit 99.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 23rd day of July, 2001, by and among: (i) CATALINA LIGHTING, INC., a
Florida corporation, as issuer (the "Company"); (ii) SUN CATALINA HOLDINGS, LLC,
a Delaware limited liability company (the "Investor"); (iii) SUNTRUST BANKS,
INC., a Georgia corporation (the "Subordinated Lender"); and (iv) SUNTRUST BANK,
a Georgia banking corporation, as administrative agent (the "Agent") for and on
behalf of the lenders (the "Senior Lenders") under that certain Third Amended
and Restated Credit Agreement dated as of the date hereof with the Company and
certain of its subsidiaries (the "Senior Credit Agreement").
WHEREAS, the Company and the Investor are parties to an Amended and
Restated Stock Purchase Agreement dated as of July 23, 2001 (the "Stock Purchase
Agreement"), and an Amended and Restated Note Purchase Agreement dated as of
July 23, 2001 (the "Investor Note Purchase Agreement"), pursuant to which, on
the date hereof, the Company is issuing to the Investor, and the Investor is
purchasing from the Company, among other things, (i) 8,489,932 shares of common
stock, par value $.01 per share ("Common Stock"), and (ii) a Warrant to purchase
the number of shares of Common Stock set forth therein dated of even date
herewith (as amended, supplemented or otherwise modified from time to time, the
"Investor Warrant"), all on the terms and subject to the conditions set forth
therein;
WHEREAS, the Company and the Subordinated Lender are parties to a Note
Purchase Agreement dated as of July 23, 2001 (the "Subordinated Lender Note
Purchase Agreement"), pursuant to which, on the date hereof, the Subordinated
Lender is purchasing from the Company, among other things, a Warrant to purchase
the number of shares of Common Stock set forth therein dated of even date
herewith (as amended, supplemented or otherwise modified from time to time, the
"Subordinated Lender Warrant"), all on the terms and subject to the conditions
set forth therein;
WHEREAS, the Company, the Senior Lenders and the Agent are parties to
the Senior Credit Agreement, pursuant to which, among other things, the Company
is issuing (i) to the Senior Lenders Warrants to purchase the number of shares
of Common Stock set forth therein dated of even date herewith (as amended,
supplemented or otherwise modified from time to time, the "Senior Lender
Warrants"), and (ii) to the Agent a Warrant to purchase the number of shares of
Common Stock set forth therein dated of even date herewith (as amended,
supplemented or otherwise modified from time to time, the "Agent Warrant"), all
on the terms and subject to the conditions set forth therein;
WHEREAS, the execution and delivery of this Agreement by the Company is
a condition precedent to the respective obligations of the Purchasers to
consummate the transactions contemplated by the Stock Purchase Agreement, the
Investor Note Purchase Agreement, the Subordinated Lender Note Purchase
Agreement and the Senior Credit Agreement;
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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 are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have the
following meanings:
"Agent" is defined in the preamble to this Agreement.
"Agent Warrant" is defined in the recitals to this Agreement
and, in addition, includes (i) any new warrant or warrants issued upon the
transfer of all or any portion of the Agent Warrant issued pursuant to the
Senior Credit Agreement and (ii) any warrant or warrants issued upon the further
transfer, division or combination of any such new warrant or warrants.
"Commission" means the Securities and Exchange Commission, or
any other federal agency then administering the Securities Act or the Exchange
Act.
"Common Stock" is defined in the recitals to this Agreement.
"Company" is defined in the preamble to this Agreement.
"Demanding Holders" is defined in Section 2.1(a).
"Demand Registration" is defined in Section 2.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect at the time.
"Indemnified Party" is defined in Section 4.3.
"Indemnifying Party" is defined in Section 4.3.
"Investor" is defined in the preamble to this Agreement.
"Investor Note Purchase Agreement" is defined in the recitals
to this Agreement.
"Investor Warrant" is defined in the recitals to this
Agreement and, in addition, includes (i) any new warrant or warrants issued upon
the transfer of all or any portion of the Investor Warrant issued pursuant to
the Stock Purchase Agreement and/or Investor Note Purchase Agreement and (ii)
any warrant or warrants issued upon the further transfer, division or
combination of any such new warrant or warrants.
"Maximum Number of Shares" is defined in Section 2.1(d).
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"Piggy-Back Registration" is defined in Section 2.2(a).
"Purchaser" means each of the Investor, the Subordinated
Lender, the Senior Lenders and the Agent, all of whom together are referred to
as the "Purchasers".
"Purchaser Indemnified Party" is defined in Section 4.1.
"Register," "registered" and "registration" mean a
registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
"Registrable Securities" mean all of the shares of Common
Stock issued pursuant to the Stock Purchase Agreement and all Warrant Shares.
Registrable Securities include any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of such shares of Common Stock.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have
become freely transferable under Rule 144(k) (or any successor rule or
regulation) promulgated under the Securities Act; (c) such securities shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; or (d) such securities shall have ceased to be outstanding.
"Registration Statement" means a registration statement filed
by the Company with the Commission in compliance with the Securities Act and the
rules and regulations promulgated thereunder for a public offering and sale of
Common Stock (other than a registration statement on Form S-4 or Form S-8, or
their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another entity).
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"Senior Credit Agreement" is defined in the preamble to this
Agreement.
"Senior Lenders" are defined in the preamble to this
Agreement.
"Senior Lender Warrants" are defined in the recitals to this
Agreement and, in addition, include (i) any new warrant or warrants issued upon
the transfer of all or any portion of the Senior Lender Warrants issued pursuant
to the Senior Credit Agreement and (ii) any warrant or warrants issued upon the
further transfer, division or combination of any such new warrant or warrants.
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"Stock Purchase Agreement" is defined in the recitals to this
Agreement.
"Subordinated Lender" is defined in the preamble to this
Agreement.
"Subordinated Lender Note Purchase Agreement" is defined in
the recitals to this Agreement.
"Subordinated Lender Warrant" is defined in the recitals to
this Agreement and, in addition, includes (i) any new warrant or warrants issued
upon the transfer of all or any portion of the Subordinated Lender Warrant
issued pursuant to the Subordinated Lender Note Purchase Agreement and (ii) any
warrant or warrants issued upon the further transfer, division or combination of
any such new warrant or warrants.
"Transaction Documents" mean the Stock Purchase Agreement, the
Investor Note Purchase Agreement, the Warrants, the Subordinated Lender Note
Purchase Agreement, and the Senior Credit Agreement.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal in an underwritten offering and not as part
of such dealer's market-making activities.
"Warrants" mean the Investor Warrant, the Subordinated Lender
Warrant, the Senior Lender Warrants, and the Agent Warrant.
"Warrant Shares" means the shares of Common Stock issued or
issuable upon the exercise of any Warrant, and the holder of any Warrant or any
portion thereof shall be deemed to be the holder of the Warrant Shares issuable
upon the exercise thereof.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
(a) Request for Registration. At any time and from
time to time on or after the date of this Agreement, the holders of (i) a
majority-in-interest of the Registrable Securities held by the Investor or the
transferees of the Investor, or (ii) a majority-in-interest of the Registrable
Securities held by the Subordinated Lender or the transferees of the
Subordinated Lender, may make a written demand for registration under the
Securities Act of all or part of their Registrable Securities (a "Demand
Registration"). Any demand for a Demand Registration shall specify the number of
shares of Registrable Securities proposed to be sold and the intended method(s)
of distribution thereof. The Company will notify all holders of Registrable
Securities of the demand, and each holder of Registrable Securities (other than
Warrant Shares in respect of the Senior Lender Warrants or the Agent Warrant)
who wishes to include all or a portion of such holder's Registrable Securities
in the Demand Registration (each such holder including shares of Registrable
Securities in such registration, a "Demanding Holder") shall so notify the
Company within fifteen (15) days after the receipt by the holder of the notice
from the Company. Upon any such request, the Demanding Holders shall be entitled
to have their Registrable Securities included in the Demand Registration,
subject to Section 2.1(d) and the provisos set forth in
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Section 3.1(a). The Company shall not be obligated to effect (i) more than two
(2) Demand Registrations under this Section 2.1(a) in respect of Registrable
Securities, a majority-in-interest of which are held by the Investor or
transferees of the Investor, or (ii) more than two (2) Demand Registrations
under this Section 2.1(a) in respect of Registrable Securities, a
majority-in-interest of which are held by the Subordinated Lender or transferees
of the Subordinated Lender.
(b) Effective Registration. A registration will not
count as a Demand Registration until the Registration Statement filed with the
Commission with respect to such Demand Registration has been declared effective
and the Company has complied with all of its obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the
Registration Statement with respect to such Demand Registration will be deemed
not to have been declared effective, unless and until, (i) such stop order or
injunction is removed, rescinded or otherwise terminated, and (ii) a
majority-in-interest of the Demanding Holders thereafter elect to continue the
offering.
(c) Underwritten Offering. If a majority-in-interest
of the Demanding Holders so elect and such holders so advise the Company as part
of their written demand for a Demand Registration, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering. In such event, the right of any holder to include
its Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting to the extent provided herein. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand Registration.
(d) Reduction of Offering. If the managing
Underwriter or Underwriters for a Demand Registration that is to be an
underwritten offering advises the Company and the Demanding Holders in writing
that the dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell, taken together with all other shares of Common
Stock or other securities which the Company desires to sell and the shares of
Common Stock (including, without limitation, Warrant Shares in respect of the
Senior Lender Warrants and the Agent Warrant), if any, as to which registration
has been requested pursuant to written contractual piggy-back registration
rights held by the Senior Lenders or the Agent pursuant to Section 2.2 hereof or
other shareholders of the Company who desire to sell, exceeds the maximum dollar
amount or maximum number of shares that can be sold in such offering without
adversely affecting the proposed offering price, the timing, the distribution
method, or the probability of success of such offering (such maximum dollar
amount or maximum number of shares, as applicable, the "Maximum Number of
Shares"), then the Company shall include in such registration: (i) first, the
Registrable Securities as to which Demand Registration has been requested by the
Demanding Holders (pro rata in accordance with the number of shares of
Registrable Securities which such Demanding Holder has requested be included in
such registration, regardless of the number of shares of Registrable Securities
held by each Demanding Holder) that can be sold without exceeding the Maximum
Number of Shares; (ii)
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second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (i), the Warrant Shares in respect of the Senior
Lender Warrants and the Agent Warrant that are requested to be included in such
registration pursuant to Section 2.2 hereof (to be allocated among the persons
requesting inclusion in such registration pro rata in accordance with the number
of shares of Common Stock which each such person has actually requested to be
included in such registration, regardless of the number of shares of Common
Stock with respect to which such persons have the right to request such
inclusion) and that can be sold without exceeding the Maximum Number of Shares;
(iii) third, to the extent that the Maximum Number has not been reached under
the foregoing clauses (i) and (ii), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (iv) fourth, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clauses (i), (ii) and (iii),
the shares of Common Stock for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements with such
persons (to be allocated among the persons requesting inclusion in such
registration pursuant to such contractual arrangements pro rata in accordance
with the number of shares of Common Stock which each such person has actually
requested to be included in such registration, regardless of the number of
shares of Common Stock with respect to which such persons have the right to
request such inclusion under such contractual arrangements) and that can be sold
without exceeding the Maximum Number of Shares; and (v) fifth, to the extent
that the Maximum Number of Shares have not been reached under the foregoing
clauses (i), (ii), (iii), and (iv) the shares of Common Stock that other
shareholders desire to sell that can be sold without exceeding the Maximum
Number of Shares.
(e) Withdrawal. Subject to the terms of any
applicable underwriting agreement, if a majority-in-interest of the Demanding
Holders disapprove of the terms of any underwriting or are not entitled to
include all of their Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter of their
request to withdraw prior to the effectiveness of the Registration Statement
filed with the Commission with respect to such Demand Registration. If the
majority-in-interest of the Demanding Holders withdraws from a proposed offering
relating to a Demand Registration, then such registration shall not count as a
Demand Registration provided for in Section 2.1(a).
2.2 Piggy-Back Registration.
(a) Piggy-Back Rights. If at any time the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the
Company for its own account or by shareholders of the Company for their own
account (or by the Company and by shareholders of the Company including, without
limitation, pursuant to Section 2.1), other than a Registration Statement (i)
filed in connection with any employee stock option or other benefit plan, (ii)
for an exchange offer or offering of securities solely to the Company's existing
shareholders, (iii) for an offering of debt that is convertible into equity
securities of the Company or (iv) for a dividend reinvestment plan, then the
Company shall (x) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than
forty-five (45) days before the anticipated filing
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date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name
of the proposed managing Underwriter or Underwriters, if any, of the offering,
and (y) offer to the holders of Registrable Securities in such notice the
opportunity to register such number of shares of Registrable Securities as such
holders may request in writing within fifteen (15) days following receipt of
such notice (a "Piggy-Back Registration"). The Company shall cause such
Registrable Securities to be included in such registration and shall use its
best efforts to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company and to permit the sale or
other disposition of such Registrable Securities in accordance with the intended
method(s) of distribution thereof. All holders of Registrable Securities
proposing to distribute their securities through a Piggy-Back Registration that
involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for
such Piggy-Back Registration.
(b) Reduction of Offering. If the managing
Underwriter or Underwriters for a Piggy-Back Registration that is to be an
underwritten offering advises the Company and the holders of Registrable
Securities in writing that the dollar amount or number of shares of Common Stock
which the Company desires to sell, taken together with shares of Common Stock,
if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Registrable
Securities hereunder, the Registrable Securities as to which registration has
been requested under this Section 2.2, and the shares of Common Stock, if any,
as to which registration has been requested pursuant to the written contractual
piggy-back registration rights of other shareholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(A) If the registration is undertaken for
the Company's account: (i) first, the shares of Common Stock or other
securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (ii) second, to the extent that
the Maximum Number of Shares has not been reached under the foregoing
clause (i), the Registrable Securities as to which registration has
been requested under this Section 2.2 (pro rata in accordance with the
number of shares of Common Stock which each such person has actually
requested to be included in such registration, regardless of the number
of shares of Common Stock with respect to which such persons have the
right to request such inclusion); and (iii) third, to the extent that
the Maximum Number of Shares has not been reached under the foregoing
clauses (i) and (ii), the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual
piggy-back registration rights which such other shareholders desire to
sell that can be sold without exceeding the Maximum Number of Shares;
and
(B) If the registration is a "demand"
registration undertaken at the demand of persons other than the holders
of Registrable Securities pursuant to written contractual arrangements
with such persons, (i) first, the shares of Common Stock for the
account of the demanding persons that can be sold without exceeding the
Maximum Number of Shares; (ii) second, to the extent that the Maximum
Number of Shares has not been
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reached under the foregoing clause (i), the Registrable Securities as
to which registration has been requested under this Section 2.2 (pro
rata in accordance with the number of shares of Common Stock which each
such Person has actually requested to be included in such registration,
regardless of the number of shares of Common Stock with respect to
which such persons have the right to request such inclusion); and (iii)
third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (i) and (ii), the shares of Common
Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares; and (iv) fourth,
to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (i), (ii) and (iii), the shares of Common
Stock, if any, as to which registration has been requested pursuant to
written contractual piggy-back registration rights which such other
shareholders desire to sell that can be sold without exceeding the
Maximum Number of Shares.
(c) Withdrawal. Any holder of Registrable Securities
may elect to withdraw such holder's request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a registration
statement at any time prior to the effectiveness of the Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the holders of Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable
Securities may at any time and from time to time, without limitation as to the
aggregate number of such requests, request in writing that the Company register
the resale of any or all of such Registrable Securities on Form S-3 or any
similar short-form registration which may be available at such time ("Form
S-3"); provided, however, that the Company shall not be obligated to effect such
request through an underwritten offering. Upon receipt of such written request,
the Company will promptly give written notice of the proposed registration to
all other holders of Registrable Securities (other than Warrant Shares in
respect of the Senior Lender Warrants or the Agent Warrant), and, as soon as
practicable thereafter, effect the registration of all or such portion of such
holder's or holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
holder or holders joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration pursuant to this Section 2.3: (i) if Form S-3 is not
available for such offering; (ii) if the holders of the Registrable Securities,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at any aggregate price to the public of less than
$500,000; (iii) if (A) within ten (10) days of receipt of a written request
pursuant to Section 2.3, the Company gives notice to the holders making such
request of the Company's bona fide intention to effect an underwritten public
offering of its Common Stock within ninety (90) days or (B) the Company shall
furnish to the holders of Registrable Securities a certificate signed by the
Chairman of the Board of Directors of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders
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for such Form S-3 registration to be effected at such time, in which event, the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request pursuant to this Section 2.3; provided further, however, that the
Company shall not have the right to exercise the right set forth in clause (iii)
more than once in any 365-day period in respect of a registration on Form S-3
Registration pursuant to this Section 2.3. The Company shall use its best
efforts to maintain each Registration Statement under this Section 2.3 effective
for sixty (60) days or until the Registrable Securities covered thereby have
been sold, whichever shall first occur. Registrations effected pursuant to this
Section 2.3 shall not be counted as Demand Registrations effected pursuant to
Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to
effect the registration of any Registrable Securities pursuant to Section 2, the
Company shall use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof as expeditiously as practicable, and in connection with any such
request:
(a) Filing Registration Statement. The Company shall,
as expeditiously as possible and in any event within sixty (60) days after
receipt of a request for a Demand Registration pursuant to Section 2.1, prepare
and file with the Commission a Registration Statement on any form for which the
Company then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of all Registrable Securities to
be registered thereunder in accordance with the intended method(s) of
distribution thereof, and shall use its best efforts to cause such Registration
Statement to become and remain effective for the period required by Section
3.1(c); provided, however, that the Company shall have the right to defer any
Demand Registration for up to thirty (30) days, and any Piggy-Back Registration
for such period as may be applicable to deferment of any demand registration to
which such Piggy-Back Registration relates, in each case if the Company shall
furnish to the holders a certificate signed by the Chief Executive Officer of
the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be materially detrimental to the Company and its
shareholders for such Registration Statement to be effected at such time;
provided further, however, that the Company shall not have the right to exercise
the right set forth in the immediately preceding proviso more than once in any
365-day period in respect of a Demand Registration hereunder.
(b) Copies. The Company shall, prior to filing a
Registration Statement or prospectus, or any amendment or supplement thereto,
furnish without charge to the holders of Registrable Securities included in such
registration, and such holders' legal counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus included in such
Registration Statement (including each preliminary prospectus), and such other
documents as the holders of Registrable Securities included in such registration
or legal counsel for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders.
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(c) Amendments and Supplements. The Company shall
prepare and file with the Commission such amendments, including post-effective
amendments, and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective and in compliance with the provisions of the Securities Act
until all Registrable Securities and other securities covered by such
Registration Statement have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement (which period
shall not exceed the sum of ninety (90) days plus any period during which any
such disposition is interfered with by any stop order or injunction of the
Commission or any governmental agency or court) or such securities have been
withdrawn.
(d) Notification. After the filing of a Registration
Statement, the Company shall promptly, and in no event more than two (2)
Business Days after such filing, notify the holders of Registrable Securities
included in such Registration Statement of such filing, and shall further notify
such holders promptly and confirm such advice in writing in all events within
two (2) Business Days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) of any stop order issued
or threatened by the Commission (and the Company shall take all actions required
to prevent the entry of such stop order or to remove it if entered); and (iv) of
any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional
information or of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of the securities covered by such Registration Statement, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and promptly make available to the holders of
Registrable Securities included in such Registration Statement any such
supplement or amendment; except that before filing with the Commission a
Registration Statement or prospectus or any amendment or supplement thereto,
including documents incorporated by reference, the Company shall furnish to the
holders of Registrable Securities included in such Registration Statement and to
the legal counsel for any such holders, copies of all such documents proposed to
be filed sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any Registration Statement or prospectus
or amendment or supplement thereto, including documents incorporated by
reference, to which such holders or their legal counsel shall object.
(e) State Securities Laws Compliance. The Company
shall use its best efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or "blue sky" laws
of such jurisdictions in the United States as the holders of Registrable
Securities included in such Registration Statement (in light of their intended
plan of distribution) may request and (ii) take such action necessary to cause
such Registrable Securities covered by the Registration Statement to be
registered with or approved by such other Governmental Authorities as may be
necessary by virtue of the business and operations of the Company and do any and
all other acts and things that may be necessary or advisable to enable the
holders of Registrable Securities included in such Registration Statement to
consummate the
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disposition of such Registrable Securities in such jurisdictions; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (e) or subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction.
(f) Agreements for Disposition. The Company shall
enter into customary agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities. The representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any Underwriters,
to the extent applicable, shall also be made to and for the benefit of the
holders of Registrable Securities included in such registration statement. No
holder of Registrable Securities included in such registration statement shall
be required to make any representations or warranties in the underwriting
agreement except, if applicable, with respect to such holder's organization,
good standing, authority, title to Registrable Securities, lack of conflict of
such sale with such holder's material agreements and organizational documents,
and with respect to written information relating to such holder that such holder
has furnished in writing expressly for inclusion in such Registration Statement.
(g) Cooperation. The principal executive officer of
the Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all
other offering materials and related documents, and participation in meetings
with Underwriters, attorneys, accountants and potential investors.
(h) Records. The Company shall make available for
inspection by the holders of Registrable Securities included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such
Registration Statement or any Underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, as shall be
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
(i) Opinions and Comfort Letters. The Company shall
furnish to each holder of Registrable Securities included in any Registration
Statement a signed counterpart, addressed to such holder, of (i) any opinion of
counsel to the Company delivered to any Underwriter and (ii) any comfort letter
from the Company's independent public accountants delivered to any Underwriter.
In the event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion
of counsel to the Company to the effect that the Registration Statement
containing such prospectus has been declared effective and that no stop order is
in effect.
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(j) Earnings Statement. The Company shall comply with
all applicable rules and regulations of the Commission and the Securities Act,
and make available to its shareholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months 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 thereunder.
(k) Listing. The Company shall use its best efforts
to cause all Registrable Securities included in any registration to be listed on
such exchanges or otherwise designated for trading in the same manner as similar
securities issued by the Company are then listed or designated or, if no such
similar securities are then listed or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3.1(d)(iv), or, in the case of a resale registration on Form S-3
pursuant to Section 2.3 hereof, upon any suspension by the Company, pursuant to
a written xxxxxxx xxxxxxx compliance program adopted by the Company's Board of
Directors, of the ability of all "insiders" covered by such program to transact
in the Company's securities because of the existence of material non-public
information, each holder of Registrable Securities included in any registration
shall immediately discontinue disposition of such Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated
by Section 3.1(d)(iv) or the restriction on the ability of "insiders" to
transact in the Company's securities is removed, as applicable, and, if so
directed by the Company, each such holder will deliver to the Company all
copies, other than permanent file copies then in such holder's possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.
3.3 Registration Expenses. The Company shall bear all
reasonable costs and expenses incurred in connection with any Demand
Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to
Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3,
and all expenses incurred in performing or complying with its other obligations
under this Agreement, whether or not the Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees;
(ii) fees and expenses of compliance with securities or "blue sky" laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv) the
Company's internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities as required by Section
3.1(k); (vi) National Association of Securities Dealers, Inc. fees; (vii) fees
and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses or costs associated with the delivery of any opinions or comfort
letters requested pursuant to Section 3.1(i)); (viii) the fees and expenses of
any special experts retained by the Company in connection with such
registration; and (ix) the fees and expenses of one legal counsel selected by
the holders of a majority-in-interest of the Registrable Securities included in
such registration. The Company shall have no obligation to pay any underwriting
discounts or
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selling commissions attributable to the Registrable Securities being sold by the
holders thereof, which underwriting discounts or selling commissions shall be
borne by such holders.
3.4 Information. In connection with each registration
hereunder, it shall be a condition to the obligations of the Company to effect
the registration of any Registrable Securities that the holders of Registrable
Securities shall provide such information as may reasonably be requested by the
Company, or the managing Underwriter, if any, in connection with the preparation
of any Registration Statement, including amendments and supplements thereto, in
order to effect the registration of any Registrable Securities under the
Securities Act pursuant to Section 2 and in connection with the Company's
obligation to comply with federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Purchaser and each other holder of Registrable
Securities, and each of their respective officers, employees, affiliates,
directors, partners, members, attorneys and agents, and each person, if any, who
controls a Purchaser and each other holder of Registrable Securities (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
(each, a "Purchaser Indemnified Party"), from and against any expenses, losses,
judgments, claims, damages or liabilities, whether joint or several, arising out
of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Purchaser
Indemnified Party for any legal and any other expenses reasonably incurred by
such Purchaser Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or allegedly untrue statement or omission or alleged
omission made in such Registration Statement, preliminary prospectus, final
prospectus, or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by such selling holder for use therein. The Company also shall
indemnify any Underwriter of the Registrable Securities, their officers,
affiliates, directors, partners, members and agents and each person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each
selling holder of Registrable Securities will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify
and hold harmless the Company, each of its directors and officers and each
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underwriter (if any), and each other person, if any, who controls such selling
holder or such underwriter within the meaning of the Securities Act, against any
losses, claims, judgments, damages or liabilities, whether joint or several,
insofar as such losses, claims, judgments, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
allegedly untrue statement of a material fact contained in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or the alleged omission to state a material fact required to be stated
therein or necessary to make the statement therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such selling holder for use
therein, and shall reimburse the Company, its directors and officers, and each
such controlling person for any legal or other expenses reasonably incurred by
any of them in connection with investigation or defending any such loss, claim,
damage, liability or action. Each selling holder's indemnification obligations
hereunder shall be several and not joint and shall be limited to the amount of
any net proceeds actually received by such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after
receipt by any person of any notice of any loss, claim, damage or liability or
any action in respect of which indemnity may be sought pursuant to Section 4.1
or 4.2, such person (the "Indemnified Party") shall, if a claim in respect
thereof is to be made against any other person for indemnification hereunder,
notify such other person (the "Indemnifying Party") in writing of the loss,
claim, judgment, damage, liability or action; provided, however, that the
failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party
may have to such Indemnified Party hereunder, except and solely to the extent
the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action
brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it
wishes, jointly with all other Indemnifying Parties, to assume the defense
thereof with counsel satisfactory to the Indemnified Party. After notice from
the Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel for all Indemnified Parties
in the event the claim involves more than one Indemnified Party) to represent
the Indemnified Party and its controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Indemnified Party against the Indemnifying Party, with the fees and
expenses of such counsel to be paid by such Indemnifying Party if, based upon
the written opinion of counsel of such Indemnified Party, representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, consent to entry of judgment or effect
any settlement of any claim or pending or threatened proceeding in respect of
which the Indemnified
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Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such judgment or settlement includes
an unconditional release of such Indemnified Party from all liability arising
out of such claim or proceeding.
4.4 Contribution.
(a) If the indemnification provided for in the
foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in
respect of any loss, claim, damage, liability or action referred to herein, then
each such Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(b) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
Section 4.4(a). The amount paid or payable by an Indemnified Party as a result
of any loss, claim, damage, liability or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no holder of Registrable
Securities shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such holder from the sale of
Registrable Securities which gave rise to such contribution obligation. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any
reports required to be filed by it under the Securities Act and the Exchange Act
and shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
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5.2 Restrictions on Sale by the Company and Others. The
Company agrees: (i) not to effect any sale or distribution of any securities
similar to those being registered in accordance with Section 2.1, or any
securities convertible into or exchangeable or exercisable for such securities,
from the date the Company receives the written demand for any Demand
Registration (except as part of such Demand Registration to the extent permitted
by Section 2.1(d)) until permitted under any "lock-up" agreement with the
Underwriter; and (ii) that any agreement entered into after the date hereof
pursuant to which the Company issues or agrees to issue any privately placed
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
periods described in (i) above, in each case including a sale pursuant to Rule
144 under the Securities Act (except as part of any such registration, if
permitted); provided, however, that the provisions of this Section 5.2 shall not
prevent the conversion or exchange of any securities pursuant to their terms
into or for other securities and shall not prevent the issuance of securities by
the Company under any employee benefit, stock option or stock subscription
plans.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and
warrants that no person has any right to require the Company to register any
shares of the Company's capital stock for sale or to include shares of the
Company's capital stock in any registration filed by the Company for the sale of
shares of capital stock for its own account or for the account of any other
person. From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Purchasers, (i) enter into any
agreement granting any demand registration right (i.e., the right to require the
Company to register the sale of any shares of the Company's capital stock), or
(ii) enter into any agreement granting any piggy-back registration right (i.e.,
the right to require the Company to register the sale of any shares of the
Company's capital stock in any registration filed by the Company for the sale of
shares of capital stock for its own account or for the account of any other
person) which is inconsistent with, equal to or superior to any registration
rights granted hereunder.
6.2 Assignment; No Third Party Beneficiaries. This Agreement
and the rights, duties and obligations of the Company hereunder may not be
assigned or delegated by the Company in whole or in part. This Agreement and the
rights, duties and obligations of the Purchasers hereunder may not be assigned
or delegated by any Purchaser without the prior written consent of the Company
other than assignment and delegations to an Affiliate of such Purchaser and
except that this Agreement and the rights, duties and obligations of the holders
of Registrable Securities hereunder may be freely assigned or delegated by such
holder of Registrable Securities, in conjunction with and to the extent of any
transfer by any such holder of Registrable Securities. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and their respective successors and the permitted assigns of each
Purchaser or holder of Registrable Securities or of any assignee of a Purchaser
or holder of Registrable Securities. This Agreement is not intended to confer
any rights or benefits on any persons that are not party hereto other than as
expressly set forth in Article 4 and this Section 6.2.
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6.3 Notices. All notices, demands, requests, consents,
approvals or other communications (collectively, "Notices") required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile. Notice
otherwise sent as provided herein shall be deemed given on the next Business Day
following timely delivery of such notice to a reputable air courier service.
To the Company:
Catalina Lighting, Inc.
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telefax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
or Xxxxxx X. Xxxxxxx, Esq.
Telefax: (000) 000-0000
and
X. Xxxxxx Xxxxxxxx, PA
0000 X.X. 0xx Xxxxx
Xxxxxxxxxxx, XX 00000
Telefax: (000) 000-0000
To the Investor:
Sun Catalina Holdings, LLC
c/o Sun Capital Partners, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx
and C. Xxxxx Xxxxx, Esq.
Telefax: (000) 000-0000
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with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
One Oxford Centre, Thirty-Second Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
To the Senior Subordinated Lender:
SunTrust Banks, Inc.
000 Xxxxxxxxx Xxxxxx XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telefax: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx Xxxxxx, Esq.
Telefax: (000) 000-0000
To the Agent:
SunTrust Bank
000 Xxxx Xxx Xxxx Xxxx.
0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telefax: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx Xxxxx, Esq.
Telefax: (000) 000-0000
6.4 Severability. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall
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be added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
6.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement, the Confidentiality
Agreement between the Company and an Affiliate of the Investor executed prior to
the date of the Stock Purchase Agreement, and the other Transaction Documents
(including all agreements entered into pursuant hereto and thereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.7 Modifications and Amendments. No amendment, modification
or termination of this Agreement shall be binding upon any party unless executed
in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of
this Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may
waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless
it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails
to observe or perform any covenant or agreement to be observed or performed
under this Agreement, any Purchaser or any other holder of Registrable
Securities may proceed to protect and enforce its rights by suit in equity or
action at law, whether for specific performance of any term contained in this
Agreement or for an injunction against the breach of any such term or in aid of
the exercise of any power granted in this Agreement or to enforce any other
legal or equitable right, or to take any one or more of such actions, without
being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or
remedy shall be cumulative and in addition to any other right, power or remedy,
whether conferred by this Agreement or now or hereafter available at law, in
equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by,
interpreted under, and construed in accordance with the internal laws of the
State of Florida applicable to
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agreements made and to be performed within the State of Florida, without giving
effect to any choice-of-law provisions thereof that would compel the application
of the substantive laws of any other jurisdiction. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting in the County of Palm Beach, Florida, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper.
7. Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, any other
Transaction Document, the transactions contemplated hereby or thereby, or the
actions of any Purchaser in the negotiation, administration, performance or
enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
COMPANY CATALINA LIGHTING, INC.,
a Florida corporation
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
PURCHASER SUN CATALINA HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
SENIOR SUBORDINATED LENDER SUNTRUST BANKS, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
AGENT SUNTRUST BANK,
a Georgia banking corporation
By: /s/ W. Xxxxx Xxxxxx
-------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
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