EXHIBIT P
---------
===============================================================================
FORM OF
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
SALTON, INC.,
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
AND
HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS GP, L.P.
__________________________________________
DATED AS OF ____________ __, 2007
__________________________________________
===============================================================================
TABLE OF CONTENTS
Page
1. REGISTRATION RIGHTS.....................................................2
1.1 DEFINITIONS....................................................2
1.2 REQUEST FOR REGISTRATION.......................................3
1.3 COMPANY REGISTRATION...........................................5
1.4 FORM S-3 REGISTRATION..........................................6
1.5 OBLIGATIONS OF THE COMPANY.....................................7
1.6 REGISTRATION IN CONNECTION WITH HEDGING TRANSACTIONS..........11
1.7 FURNISH INFORMATION; LIMITATION OF OBLIGATIONS................12
1.8 EXPENSES OF REGISTRATIONS.....................................12
1.9 INDEMNIFICATION...............................................12
1.10 RULE 144 REPORTING............................................15
1.11 ASSIGNMENT OF REGISTRATION RIGHTS.............................15
1.12 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.................15
1.13 ADDITIONAL RESTRICTIONS.......................................16
1.14 CONFIDENTIAL INFORMATION......................................16
1.15 TERMINATION OF REGISTRATION RIGHTS............................16
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................16
3. MISCELLANEOUS..........................................................17
3.1 SUCCESSORS AND ASSIGNS........................................17
3.2 GOVERNING LAW.................................................17
3.3 COUNTERPARTS..................................................17
3.4 NOTICES.......................................................17
3.5 ATTORNEYS' FEES...............................................18
3.6 AMENDMENTS AND WAIVERS........................................18
3.7 OTHER AGREEMENTS..............................................18
3.8 SPECIFIC PERFORMANCE..........................................18
3.9 SEVERABILITY..................................................18
3.10 RULES OF CONSTRUCTION.........................................19
3.11 ENTIRE AGREEMENT..............................................19
EXHIBITS
Exhibit A - Shares of Common Stock
Exhibit B - Addresses for Notice
(i)
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of _________ ___, 2007 by and between Salton, Inc., a
Delaware corporation (the "COMPANY"), Harbinger Capital Partners Master Fund I,
Ltd., a company organized under the laws of the Cayman Islands ("HCP MASTER
FUND") and Harbinger Capital Partners Special Situations GP, L.P., a Delaware
limited partnership (together with HCP Master Fund, the "INVESTORS").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of
December 28, 2006, by and among the Company and HCP Master Fund, HCP Master
Fund purchased 701,600 shares of Common Stock (as hereinafter defined) (the
"PRE-MERGER HCP COMMON STOCK");
WHEREAS, pursuant to the Registration Rights Agreement (the
"HCP REGISTRATION RIGHTS AGREEMENT"), dated as of December 28, 2006, by and
among the Company and HCP Master Fund, HCP Master Fund was granted registration
rights with respect to the Pre-Merger HCP Common Stock;
WHEREAS, the Company and HCP Fund wish to terminate the HCP
Registration Rights Agreement and replace it in its entirety with this
Agreement;
WHEREAS, the Investors own all of the issued and outstanding
shares of common stock, par value $0.01 per share, of APN Holding Company,
Inc., a Delaware corporation ("APPLE HOLDCO");
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as
of January __, 2007 (as the same may be amended, modified and supplemented from
time to time prior to the date hereof, the "MERGER AGREEMENT"), by and among
the Company, SFP Merger Sub, Inc., a Delaware corporation and a direct wholly
owned subsidiary of the Company ("MERGERSUB") and Apple Holdco, MergerSub will
merge with and into Apple Holdco and each outstanding share of the common
stock, par value $0.01 per share, of Apple Holdco will be converted into the
right to receive fully paid and non assessable shares of common stock, par
value $0.01 per share, of the Company (the "COMMON STOCK"); and
WHEREAS, after giving effect to the transactions contemplated
by the Merger Agreement, each Investor will own the number of shares of Common
Stock set forth opposite such Investor's name on SCHEDULE A hereto.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS.
For purposes of this Agreement:
(a) "DISCLOSURE PACKAGE" means (i) the preliminary
prospectus, (ii) each Free Writing Prospectus and (iii) all other information
that is deemed, under Rule 159 under the Securities Act, to have been conveyed
to purchasers of securities at the time of sale (including, without limitation,
a contract of sale).
(b) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(c) "FORM S-3" means such form under the Securities Act as
in effect on the date hereof or any successor form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(d) "FREE WRITING PROSPECTUS" means any "free writing
prospectus," as defined in Rule 405 of the Securities Act.
(e) "HEDGING COUNTERPARTY" means a broker-dealer registered
under Section 15(b) of the Exchange Act or an affiliate thereof or any other
financial institution or third party.
(f) "HEDGING TRANSACTION" means any transaction involving a
security linked to the Registrable Class Securities or any security that would
be deemed to be a "derivative security" (as defined in Rule 16a-1(c) under the
Exchange Act) with respect to the Registrable Class Securities or any
transaction (even if not a security) which would (were it a security) be
considered such a derivative security, or which transfers some or all of the
economic risk of ownership of the Registrable Class Securities, including,
without limitation, any forward contract, equity swap, put or call, put or call
equivalent position, collar, non-recourse loan, sale of exchangeable security
or similar transaction. For the avoidance of doubt, the following transactions
shall be deemed to be Hedging Transactions:
(i) transactions by a Holder in which a Hedging
Counterparty engages in short sales of Registrable Class Securities pursuant to
a prospectus and may use Registrable Securities to close out its short
position;
(ii) transactions pursuant to which a Holder sells
short Registrable Class Securities pursuant to a prospectus and delivers
Registrable Securities to close out its short position; and
(iii) transactions by a Holder in which the Holder
delivers, in a transaction exempt from registration under the Securities Act,
Registrable Securities to the Hedging Counterparty who will then publicly
resell or otherwise transfer such Registrable Securities pursuant to a
prospectus or an exemption from registration under the Securities Act.
2
(g) "HOLDER" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.11 hereof.
(h) "LAW" means any statute, law, ordinance, rule or
regulation of any governmental entity.
(i) "PUBLIC SALE" means any sale of Registrable Securities
to the public pursuant to a public offering registered under the Securities Act
or to the public through a broker or market-maker pursuant to the provisions of
Rule 144 (or any successor rule) adopted under the Securities Act or any other
public offering not required to be registered under the Securities Act.
(j) "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(k) "REGISTRABLE CLASS SECURITIES" means securities of the
Company that are of the same class and series as the Registrable Securities.
(l) "REGISTRABLE SECURITIES" means (i) the Common Stock
owned by Holders on the date hereof (which include the Pre-Merger HCP Common
Stock and the Common Stock received by the Investors pursuant to the Merger
Agreement); (ii) any shares of Common Stock acquired after the date hereof by
any of the Holders and (iii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) or (ii) above; PROVIDED, that
Registrable Securities shall not include shares of Common Stock previously (A)
sold in a Public Sale, or (B) sold in a transaction in which the transferor's
rights hereunder are not assigned in accordance with Section 1.11 hereof.
(m) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(n) The term "SEC" means the Securities and Exchange
Commission.
(o) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
1.2 REQUEST FOR REGISTRATION.
(a) If at any time after __________(1) the Company shall
receive a written request from the Holders of at least a majority of the
Registrable Securities then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Securities Act covering the
registration of at least 10% of the Registrable Securities then outstanding, or
------------
(1) Insert date that is 90 days after the closing of the Merger
3
a lesser percent if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $5.0 million, then the
Company shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) use commercially reasonable efforts to effect
promptly, the registration under the Securities Act of all Registrable
Securities which the Holders request to be registered, subject to the
limitations of subsection 1.2(b), in a written request received by the Company
within fifteen (15) days of the making of the notice pursuant to Section
1.2(a)(i).
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
subsection 1.2(a) and the Company shall include such information in the written
notice referred to in subsection 1.2(a). The underwriter or underwriters will
be selected by the Company, subject to the approval of a majority in interest
of the Initiating Holders. In such event, the right of any Holder to include
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 (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.5(i)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.2, if the managing underwriter advises the
Company and the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall
so advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated first
among all Holders thereof, including the Initiating Holders, in proportion (as
nearly as practicable) to the amount of Registrable Securities of the Company
owned by each Holder at the time of the filing of the registration statement;
PROVIDED, HOWEVER, that the number of shares of Registrable Securities held by
Holders to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting. Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the Company's chief executive officer or the
chairman of the board of directors of the Company (the "BOARD") stating that in
the good faith judgment of the Board, as evidenced by a resolution by the
Board, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than sixty (60) days after receipt of the request of the Initiating
Holders; PROVIDED, that the Company may not utilize this right more than once
in any twelve month period; PROVIDED FURTHER, that this right is cumulative to
the right under Section 1.4(b)(iii) such that the Company may only defer the
filing of a registration statement under Section 1.2(c) or Section 1.4(b)(iii)
once in any twelve-month period.
4
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected five (5)
registrations pursuant to this Section 1.2 and such registration statements
have been declared or ordered effective and have remained effective for a
period of at least 180 days; PROVIDED, that if such request pursuant to this
Section 1.2 is subsequently withdrawn by the requester in writing, it shall not
be counted against the limitation of requests set forth in this Section
1.2(d)(i);
(ii) If the Company has effected a registration
pursuant to this Section 1.2 within the preceding six (6) months, and such
registration has been declared or ordered effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3 COMPANY REGISTRATION.
(a) If (but without any obligation to do so) the Company
proposes to register any of its capital stock under the Securities Act for its
own account or the account of any of its stockholders with registration rights
(other than in connection with a registration effected solely to implement an
employee benefit plan or arrangement or a business combination transaction or
any other similar transaction for which a registration statement on Form S-4
under the Securities Act or any comparable successor form is applicable), the
Company will promptly give written notice thereof to the Holders of Registrable
Securities at least twenty (20) days prior to the filing of such registration
statement, or such lesser time that is reasonable taking into account the
Company's contractual obligation to file such registration statement. Upon the
written request of each Holder given within fifteen (15) days after the giving
of such notice by the Company, the Company shall, subject to the provisions of
this Section 1.3, cause to be registered under the Securities Act in such
registration statement all of the Registrable Securities that each such Holder
has requested to be registered.
(b) In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not be
required under this Section 1.3 to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it, and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. Regardless of any other
provision of this Section 1.3, if the underwriter advises the Company that
marketing factors require a reduction in the number of shares to be
underwritten, then the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated first, to the Company and the
Person or Persons requesting such registration (if other than the Company)
shall be entitled to participate in accordance with the relative priorities, if
any, as shall exist among them; and then second, all other holders of
securities having the right to include such securities in such registration
(including the Holders of the Registrable Securities) shall be entitled to
participate pro rata based on the number of shares requested to be sold by such
Holders. The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the effectiveness
5
of such registration whether or not any Holder has elected to include
securities in such registration. The registration expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 1.8
hereof.
1.4 FORM S-3 REGISTRATION.
Notwithstanding anything in Section 1.2 or Section 1.3 to the
contrary, if at any time after ______________,(2) in case the Company shall
receive from any Holders of Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, and the Company is then
eligible to use Form S-3 for the resale of Registrable Securities, the Company
will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) promptly effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution 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, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering
by the Holders;
(ii) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities at an aggregate price to the public (net
of any underwriters' discounts or commissions) of less than $2.5 million;
(iii) if the Company shall furnish to the Holders a
certificate signed by the Company's chief executive officer or chairman of the
Board stating that in the good faith judgment of the Board as evidenced by a
resolution by the Board, it would be seriously detrimental to the Company and
its stockholders 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 sixty (60) days after
receipt of the request of the Holder or Holders under this Section 1.4;
PROVIDED, that the Company shall not utilize this right more than once in any
twelve-month period; PROVIDED FURTHER, that this right is cumulative to the
right under Section 1.2(c) such that the Company may only defer the filing of a
registration statement under Section 1.2(c) or Section 1.4(b)(iii) once in any
twelve-month period;
------------
(2) Insert date that is 90 days after the closing of the Merger.
6
(iv) if the Company has, within the six (6) month
period preceding the date of such request, already effected one (1)
registration on Form S-3 for the Holders pursuant to this Section 1.3,
PROVIDED, THAT any such registration shall be deemed to have been "effected" if
the registration statement relating thereto (A) has become or been declared or
ordered effective under the Securities Act, and any of the Registrable
Securities of the Initiating Holder(s) included in such registration have
actually been sold thereunder and (B) has remained effective for a period of at
least 180 days; or
(v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered promptly after receipt of the request or requests
of the Holders. Registrations effected pursuant to this Section 1.4 shall not
be counted as requests for registration effected pursuant to Section 1.2 or
Section 1.3 respectively.
(d) If the Holders intend to distribute the Registrable
Securities covered by their request under this Section 1.4 by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Section 1.4 and the Company shall include such information in
the written notice referred to in subsection 1.4(a). The underwriter or
underwriters will be selected by the Company, subject to the approval of a
majority in interest of the Holders participating in such registration. In such
event, the right of any Holder to include 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 (unless otherwise mutually agreed by a majority in interest of the
Holders participating in the registration and the Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.5(i)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.4, if the managing underwriter advises the
Company and the Holders participating in such underwriting in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
underwriting shall be allocated first among all Holders thereof, in proportion
(as nearly as practicable) to the amount of Registrable Securities of the
Company owned by each Holder at the time of the filing of the registration
statement; provided, however, that the number of shares of Registrable
Securities held by Holders to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting. Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
1.5 OBLIGATIONS OF THE COMPANY.
Whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
7
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for 180 days or, if
earlier, until the distribution contemplated in the registration statement has
been completed; PROVIDED, that, in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous or
delayed basis, such 180-day period shall be extended, if necessary, to keep the
registration statement continuously effective, supplemented and amended to the
extent necessary to ensure that it is available for sales of such Registrable
Securities, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
SEC as announced from time to time, until the earlier of when (i) the Holders
have sold all of such Registrable Securities and (ii) the Holders may sell all
of such Registrable Securities on a single day pursuant to Rule 144(k)
promulgated under the Securities Act as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent and the affected Holders..
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement PROVIDED that before filing a
registration statement, or any amendments or supplements thereto, the Company
will furnish to counsel selected by the Holders of the Registrable Securities
covered by such registration statement to represent such Holders, copies of all
documents proposed to be filed, which documents (other than the documents
incorporated by reference therein) will be subject to the review of such
counsel.
(c) Furnish to the Holders and any Hedging Counterparty, if
any, such numbers of copies of such registration statement, the prospectus
included in such registration statement (including each preliminary prospectus,
summary prospectus and Free Writing Prospectus), and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the public sale or other disposition
of Registrable Securities owned by such Holder or Hedging Counterparty.
(d) Register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by the Holders and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such Holders to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Holder; provided, that the Company shall
not be required in connection therewith or as a condition thereto (i) to
qualify to do business or to file a general consent to service of process in
any such states or jurisdictions, (ii) subject itself to taxation in any
jurisdiction or (iii) in the case of a registration pursuant to Section 1.3,
register or qualify such Holder's Registrable Securities in any jurisdiction
where shares to be sold by the Company or any other Person initiating such
registration are not to be registered or qualified.
8
(e) Notify each Holder of Registrable Securities covered by
such registration statement and any Hedging Counterparty, if applicable, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the Company's becoming aware that the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such Holder or Hedging
Counterparty, prepare and furnish to such Holder and Hedging Counterparty a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such amended or supplemental prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(f) Cause all such Registrable Securities registered
pursuant to this Agreement to be listed on any securities exchange on which any
shares of the Common Stock are then listed.
(g) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(h) Enter into and perform its obligations under such
customary agreements (including an underwriting agreement in customary form),
which may include indemnification provisions in favor of underwriters and other
persons in addition to, or in substitution for the provisions of Section 1.9
hereof, and take such other actions as sellers of a majority of shares of such
Registrable Securities, a Hedging Counterparty, if any, or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities or any Registrable Class Securities in connection
with any Hedging Transaction.
(i) Make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement, by any Hedging Counterparty, and by any attorney,
accountant or other agent retained by any such seller, any such underwriter, or
any such Hedging Counterparty all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, Hedging Counterparty,
attorney, accountant or agent in connection with such registration statement.
(j) Obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent, and, in connection
with a Hedging Transaction, to any Hedging Counterparty, an opinion or opinions
from counsel for the Company in customary form and in form, substance and scope
reasonably satisfactory to such Holders, underwriters or agents and their
counsel.
(k) Use commercially reasonable efforts to prevent the
issuance of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of any preliminary
prospectus relating to such registration statement, and, if any such order is
issued, to obtain the withdrawal of any such order at the earliest possible
moment.
9
(l) Respond promptly to any comments received from the SEC
and request acceleration of effectiveness promptly after it learns that the
Commission will not review the registration statement or after it has satisfied
comments received from the SEC.
(m) Promptly notify the Holders of Registrable Securities
to be sold and confirm such notice in writing, (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and, with
respect to a registration statement or any post-effective amendment, when the
same has become effective, (ii) of the receipt of any comments from the SEC,
(iii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a registration statement or related
prospectus, (iv) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
registration statement, or of any order preventing or suspending the use of any
preliminary prospectus relating to such registration statement, or the
initiation of any proceedings for such purpose(s), (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the discovery of any event that makes any statement made in
such registration statement or related prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in a registration statement,
prospectus or any such document so that, in the case of the registration
statement, it will not contain any 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, in light of the circumstances under
which they were made, and, in the case of the prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading and (vii) of the
Company's reasonable determination that a post-effective amendment to a
registration statement would be appropriate. In the event a registration
statement is interfered with by any event of the kind described in clauses (iv)
through (vii) of the first sentence of this Section 1.5(m) for more than twenty
(20) days, such registration shall not be deemed "effected" for purposes of
Section 1.2(d) or Section 1.4(b).
(n) If requested by the managing underwriter or agent or
any Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, without limitation, with respect to
the number of Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor by such
underwriter or agent and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after being notified of the matters incorporated in such
prospectus supplement or post-effective amendment.
(o) Cooperate with the Holders of Registrable Securities
covered by the registration statement and the managing underwriter or agent, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations
and registered in such names as the managing underwriter or agent, if any, or
such Holders may request.
10
(p) Cooperate with each seller of Registrable Securities,
any Hedging Counterparty, and each underwriter or agent participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(q) With respect to each Free Writing Prospectus or other
materials to be included in the Disclosure Package, ensure that no Registrable
Securities be sold "by means of" (as defined in Rule 159A(b) under the
Securities Act) such Free Writing Prospectus or other materials without the
prior written consent of the Holders of the Registrable Securities covered by
such registration statement, which Free Writing Prospectuses or other materials
shall be subject to the review of counsel to such Holders.
(r) Make all required filings of all Free Writing
Prospectuses with the Commission.
Each Holder shall be deemed to have agreed by acquisition of
the Registrable Securities that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in clauses (iv) through (vii)
of subsection (m) of this section 1.5, such Holder will forthwith discontinue
its disposition of the Registrable Securities pursuant to the Registration
Statement relating thereto until Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection (e) of this
section 1.5 and, if so directed by the Company, will deliver to the Company all
copies, other than permanent file copies, then in Holder's possession of the
prospectus relating to the Registrable Securities current at the time of
receipt of such notice.
1.6 REGISTRATION IN CONNECTION WITH HEDGING TRANSACTIONS.
(a) The Company acknowledges that from time to time a
Holder may seek to enter into one or more Hedging Transactions with a Hedging
Counterparty. Notwithstanding anything to the contrary provided herein, the
Company agrees that, in connection with any proposed Hedging Transaction, if,
in the reasonable judgment of counsel to the Holder (after good faith
consultation with counsel to the Company), it is necessary or desirable to
register under the Securities Act such Hedging Transaction or sales or
transfers (whether short or long) of Registrable Class Securities in connection
therewith, then the Company shall use its commercially reasonable efforts to
take such actions (which may include among other things, the filing of a
post-effective amendment to any shelf registration statement to include
additional or changed information that is material or is otherwise required to
be disclosed, including, without limitation, a description of such Hedging
Transaction, the name of the Hedging Counterparty, identification of the
Hedging Counterparty or its affiliates as underwriters or potential
underwriters, if applicable, or any change to the plan of distribution) as may
reasonably be required to register such Hedging Transactions or sales or
transfers of Registrable Class Securities in connection therewith under the
Securities Act in a manner consistent with the rights and obligations of the
Company hereunder with respect to the registration of Registrable Securities.
11
(b) The Company agrees to include in each prospectus
supplement filed in connection with any proposed Hedging Transaction language
mutually agreed upon by the Company, the Holder and the Hedging Counterparty
describing such Hedging Transaction.
(c) Any information regarding the Hedging Transaction
included in a registration statement or prospectus pursuant to this Section 1.6
shall be deemed to be information provided by the Holder selling Registrable
Securities pursuant to such registration statement or prospectus for purposes
of Section 1.5 of this Agreement.
(d) If in connection with a Hedging Transaction a Hedging
Counterparty or any affiliate thereof is (or may be considered) an underwriter
or selling securityholder, then it shall be required to provide customary
indemnities to the Company regarding itself, the plan of distribution and like
matters.
1.7 FURNISH INFORMATION; LIMITATION OF OBLIGATIONS.
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any selling Holder as to which a registration is
being effected to furnish, and such Holder shall furnish, to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of such Holder's Registrable Securities.
1.8 EXPENSES OF REGISTRATIONS.
All expenses other than underwriting discounts and commissions
incurred in connection with registrations pursuant to this Section 1, including
without limitation all registration, filing and qualification fees, printers'
and accounting fees and reasonable fees and disbursements of counsel for the
Company and one counsel for the participating Holders, shall be borne by the
Company; PROVIDED, that the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 1.2 or
Section 1.4 as applicable, if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating Holders shall bear
all such expenses incurred), unless, in the case of a registration requested
under Section 1.2, the Holders of a majority of the Registrable Securities
agree to forfeit one demand registration pursuant to Section 1.2.
1.9 INDEMNIFICATION.
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the
Securities Act) for such Holder, their respective affiliates and controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and the partners, officers, directors members,
representatives, agents and employees of each Holder, and each such person
(collectively, the "HOLDER INDEMNIFIED PARTIES"), against any losses, claims,
damages or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
12
omissions or violations (collectively, a "VIOLATION") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including without limitation any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Disclosure Package or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, or (iv) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse each
such Holder Indemnified Party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, that the indemnity agreement
contained in this Section 1.9(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the written consent of the Company, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case to any
Holder Indemnified Party for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs
in reliance upon and in conformity with written information furnished by such
Holder Indemnified Party under an instrument duly executed by any such Holder
Indemnified Party expressly for use in connection with such registration by
such Holder; PROVIDED further, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Holder Indemnified Party from whom the person asserting any such losses,
claims, damages or liabilities purchased shares in the offering, if a copy of
the prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Holder Indemnified Party to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the shares to such person, and if the prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability. For purposes of the last proviso to the immediately
preceding sentence, the term "prospectus" shall not be deemed to include the
documents, if any, incorporated therein by reference, and no person who
participates as an underwriter in the offering or sale of Registrable
Securities or any other person, if any, who controls such underwriter within
the meaning of the Securities Act, shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
preliminary prospectus or the final prospectus to any person other than a
person to whom such underwriter had delivered such incorporated document or
documents in response to a written request therefor. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such party and shall survive the transfer of such securities.
(b) To the extent permitted by law, each Holder shall, if
shares held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, each underwriter and each
other stockholder selling securities under such registration statement against
any losses, claims, damages or liabilities (joint or several) to which any of
13
the foregoing persons may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder under an instrument duly executed by such Holder
expressly for use in connection with such registration; and each Holder shall
reimburse any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this Section 1.9(b), in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such violation; PROVIDED, that the
indemnity agreement contained in this Section 1.9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the written consent of such Holder, which
consent shall not be unreasonably withheld; PROVIDED FURTHER, that the
liability of each Holder under this Section 1.9(b) shall be limited to an
amount equal to the net proceeds actually received and retained by such Holder
in the registered public offering out of which such liability arises, unless
such liability arises out of or is based on willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, that an indemnified party (together with
all other indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9 to the extent so prejudiced, but the omission so to deliver written notice
to the indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section 1.9.
(d) If the indemnification provided for in this Section 1.9
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other in connection with the Violation that resulted in such loss, liability,
claim, damage or expense as well as any other relevant equitable
considerations; PROVIDED, that in no event shall any contribution by a Holder
that is a selling party under this Section 1.9(d) exceed the net proceeds from
the offering received by such Holder. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
14
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control. No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of each indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(f) The obligations of the Company and Holders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1 and otherwise.
1.10 RULE 144 REPORTING.
With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Securities Act and any other rule or regulation
of the SEC which may permit the sale of the Registrable Securities to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to use commercially reasonable efforts to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144 or any similar or analogous
rule promulgated under the Securities Act;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon written request: (i) a written statement
by the Company as to its compliance with the reporting requirements of SEC Rule
144 and the Exchange Act; (ii) a copy of the most recent annual or quarterly
report of the Company; and (iii) such other reports and documents as a Holder
may reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
1.11 ASSIGNMENT OF REGISTRATION RIGHTS.
A Holder may assign any or all of its rights hereunder (but
only with all related obligations) to any person or entity to whom the Holder
may transfer or assign its Common Stock; provided, THAT: (i) the Company is,
within ten (10) days after such transfer, furnished with written notice of the
name and address of such transferee or assignee and the securities with respect
to which such registration rights are being assigned; (ii) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement; and (iii) such assignment shall be effective only
if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act.
15
1.12 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
The Company shall not, without the prior written consent of the
Holders of at least a majority of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any
securities of the Company that would grant to such holder or prospective holder
registration rights superior to or, except with respect to piggyback or
incidental registration rights, on parity with those granted under this Section
1.
1.13 ADDITIONAL RESTRICTIONS.
So long as this Agreement is in effect, each of the Holders of
Registrable Securities agrees that during the 90-day period following the date
any Registration Statement (which such Holder had the opportunity to
participate in under Section 1.2, 1.3 or 1.4) with respect to an underwritten
public offering of equity securities of the Company becomes effective, such
Holder will not effect any sale or distribution of equity securities of the
Company or any other security of the Company convertible, exchangeable or
exercisable (directly or indirectly) for or into equity securities of the
Company (other than pursuant to such Registration Statement) including, without
limitation, pursuant to Rule 144 or in a transaction which would require
registration under the Securities Act, unless the managing underwriter of such
public offering otherwise agrees in writing.
1.14 CONFIDENTIAL INFORMATION.
Each Holder of Registrable Securities agrees that any
information obtained pursuant to this Agreement which the Company identifies to
be proprietary to the Company or otherwise confidential will not be disclosed
without the prior written consent of the Company. Notwithstanding the
foregoing, each Holder of Registrable Securities may disclose such information,
on a need to know basis, to their employees, accountants or attorneys (so long
as each such person to whom confidential information is disclosed agrees to
keep such information confidential) or to the extent required by applicable
law, rule, regulation or court order. Each Holder of Registrable Securities
further acknowledges, understands and agrees that any confidential information
will not be utilized in connection with purchases and/or sales of the Company's
securities except in compliance with applicable state and federal antifraud
statutes.
1.15 TERMINATION OF REGISTRATION RIGHTS.
No Holder shall be entitled to exercise any right provided for
in this Section 1 after such time at which all Registrable Securities held by
such Holder (and any affiliate of the Holder or other person with whom such
Holder must aggregate sales under Rule 144 of the Securities Act) can be sold
without restriction (including volume and manner-of-sale restrictions) on a
single day without registration in compliance with Rule 144 of the Securities
Act (or any similar provision then in effect) and such Holder has received,
upon such Holder's request, an opinion of counsel to the Company to that
effect.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Holders as follows:
(a) The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware.
16
(b) The Company has the requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery by the Company of this Agreement have been duly
authorized and approved by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(c) The execution and delivery by Parent of this Agreement
and the performance of its obligations hereunder and compliance with the terms
hereof do not and will not violate any provision of law, any order of any court
or other agency of government, the Certificate of Incorporation, bylaws or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, and will not conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS.
This Agreement will be binding upon and will inure to the
benefit of the signatories hereto and their respective successors and permitted
assigns (including transferees of any shares of Registrable Securities).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
3.2 GOVERNING LAW.
This Agreement will be governed by and construed in accordance
with the internal Laws of the State of New York applicable to Contracts made
and wholly performed within such state, without regard to any applicable
conflict of laws principles.
3.3 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, all
of which will be considered one and the same agreement and will become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that each party need not
sign the same counterpart.
3.4 NOTICES.
All notices required or permitted pursuant to this Agreement
will be in writing and will be deemed to be properly given when actually
received by the Person entitled to receive the notice at the address set forth
on EXHIBIT B hereto, or at such other address as a party may provide by notice
to the other.
17
3.5 ATTORNEYS' FEES.
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
3.6 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company, the holders of at least a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of any Registrable
Securities then outstanding, each future holder of all such Registrable
Securities and the Company.
3.7 OTHER AGREEMENTS.
Neither the Company nor any of its subsidiaries has entered, as
of the date hereof, nor shall the Company or any of its subsidiaries, on or
after the date of this Agreement, enter into any agreement with respect to its
securities, that would have the effect of impairing the rights granted to the
Investors in this Agreement or otherwise conflicts with the provisions hereof.
Notwithstanding the foregoing, the Holders acknowledge that the Company has
previously entered into (i) the Registration Rights Agreement dated as of
August 26, 2005 between the Company and Xxxxxx, Xxxxxx & Co., L.P., (ii) the
Registration Rights Agreement dated as of July 15, 1998 by and among the
Company and the parties listed on the signature pages thereto and (iii) the
Registration Rights Agreement dated as of February 8, 2006 by and between the
Company and Silver Point Finance, LLC (as each is in effect on the date hereof,
the "PRIOR REGISTRATION RIGHTS AGREEMENTS") and that nothing in this Agreement
is intended to, or shall, impair or conflict with the rights of the parties to
the Prior Registration Rights Agreements under the terms of the Prior
Registration Rights Agreements.
3.8 SPECIFIC PERFORMANCE.
The parties hereby acknowledge and agree that the failure of
any party to perform its agreements and covenants hereunder, including its
failure to take all actions as are necessary on its part to the consummation of
the Transactions, will cause irreparable injury to the other parties for which
damages, even if available, will not be an adequate remedy. Accordingly, each
party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such party's obligations and to
the granting by any court of the remedy of specific performance of its
obligations hereunder.
3.9 SEVERABILITY.
The illegality or partial illegality of any of this Agreement,
or any provision hereof, will not affect the validity of the remainder of this
Agreement, or any provision hereof, and the illegality or partial illegality of
this Agreement will not affect the validity of this Agreement in any
jurisdiction in which such determination of illegality or partial illegality
18
has not been made, except in either case to the extent such illegality or
partial illegality causes this Agreement to no longer contain all of the
material provisions reasonably expected by the parties to be contained therein.
3.10 RULES OF CONSTRUCTION.
(a) When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference will be to an Article or
Section or Exhibit or Schedule to this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they will be deemed to be followed by the words "without
limitation." Unless the context otherwise requires, (i) "or" is disjunctive but
not necessarily exclusive, (ii) words in the singular include the plural and
vice versa, and (iii) the use in this Agreement of a pronoun in reference to a
party hereto includes the masculine, feminine or neuter, as the context may
require. This Agreement will not be interpreted or construed to require any
Person to take any action, or fail to take any action, that would violate any
applicable Law.
(b) The parties have participated jointly in negotiating
and drafting this Agreement. In the event that an ambiguity or a question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties, and no presumption or burden of proof will arise
favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.
3.11 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and
supersedes the HCP Registration Rights Agreement (which is hereby terminated)
and all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, each of the Company and the Investors have
caused this Registration Rights Agreement to be signed by its officer thereunto
duly authorized, all as of the date first written above.
SALTON, INC.
By:
---------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., ITS INVESTMENT MANAGER
By:
---------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS SPECIAL
SITUATIONS FUND, L.P.
By: Harbinger Capital Partners Special
Situations GP, LLC, ITS GENERAL PARTNER
By: HMC - New York, Inc., ITS MANAGING MEMBER
By:
---------------------------------
Name:
Title:
[Signature Page to Registration Rights Agreement]
EXHIBIT A
---------
SHARES OF COMMON STOCK
----------------------
-------------------------------------------------------------------------------
SHARES OF
STOCKHOLDER COMMON STOCK
-------------------------------------------------------------------------------
Harbinger Capital Partners Master Fund I, Ltd. [ ]
Harbinger Capital Partners Special Situations GP, L.P. [ ]
EXHIBIT B
---------
ADDRESSES FOR NOTICE
--------------------
SALTON, INC.
0000 X. Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention:
Facsimile: (000) 000-0000
With a copy to:
XXXXXXXXXXXX XXXX & XXXXXXXXX LLP
7800 Sears Tower, 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000 6404
Attention: Xxxx Xxxxxxxxxx
Facsimile: 312.876.7934
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
c/o 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 6064
Attention: Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Facsimile: (000) 000 0000
HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS GP, L.P.
c/o 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 6064
Attention: Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Facsimile: (000) 000 0000
