EXHIBIT 10.3
EXECUTION COPY
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT, dated as of August 24, 1998 (this "Amendment"), to the
REGISTRATION RIGHTS AGREEMENT, dated as of March 29, 1998 (the "Registration
Rights Agreement"), by and among SUNBEAM CORPORATION, a Delaware corporation
("Laser" or "Sunbeam"), and XXXXXXX (PARENT) HOLDINGS INC., a Delaware
corporation ("Parent Holdings"). Capitalized terms used in this Amendment have
the meanings ascribed to them in the Registration Rights Agreement unless
otherwise defined herein. References to Articles and Sections shall, unless
otherwise stated, be to the Articles and Sections of the Registration Rights
Agreement. In all respects not inconsistent with the terms and provisions of
this Amendment, the Registration Rights Agreement shall continue to be in full
force and effect in accordance with the terms and conditions thereof, and is
hereby ratified, adopted, approved and confirmed. From and after the date
hereof, each reference to the Registration Rights Agreement therein or in any
other instrument or document shall be deemed a reference to the Registration
Rights Agreement as amended hereby, unless the context otherwise requires, and
this Amendment and the Registration Rights Agreement shall for all purposes and
matters be considered as one agreement, including that all of the ministerial
and miscellaneous provisions of the Registration Rights Agreement shall apply
equally thereto as so amended and to this Amendment.
WHEREAS, pursuant to the Holdings Merger Agreement, by and among
Sunbeam, a subsidiary of Sunbeam, CLN HOLDINGS INC., a Delaware corporation and
wholly owned subsidiary of Parent Holdings ("Holdings"), and Parent Holdings,
the Holdings Merger was consummated on March 30, 1998 and Holdings became an
indirect wholly owned subsidiary of Sunbeam; and
WHEREAS, following consummation of the Holdings Merger, the shares
of Holdings Common Stock issued and outstanding immediately prior to the
effective time of the Holdings Merger were converted into an aggregate of (A)
14,099,749 fully paid and nonassessable shares of common stock, par value $.01
per share, of Sunbeam ("Laser Common Stock") and (B) $159,956,756 in cash,
without interest thereon; and
WHEREAS, following the dismissal by Sunbeam of certain of its
executive officers in mid-June 1998, Sunbeam retained certain senior officers
employed by Affiliates of Parent Holdings as executive officers of Sunbeam; and
WHEREAS, Sunbeam and Parent Holdings have entered into a Settlement
Agreement (the "Settlement Agreement") pursuant to which Sunbeam will issue to
Parent Holdings certain warrants to purchase shares of Laser Common Stock (the
"Warrants") and has agreed to enter into this Agreement; and
WHEREAS, in order to induce Parent Holdings to enter into the
Settlement Agreement, Sunbeam has agreed to amend the Registration Rights
Agreement and modify the registration rights with respect to the shares of Laser
Common Stock issued to Parent Hold-
ings in the Holdings Merger and to provide for registration rights with respect
to the Warrants and Laser Common Stock issuable upon exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 is amended with respect to certain of the definitions
therein as follows:
The definition of the term "Agreement" is amended and restated in
its entirety to mean the Registration Rights Agreement as amended by this
Amendment.
The definition of the term "Registrable Securities" is amended and
restated in its entirety to mean (i) the Holdings Merger Stock, (ii) the
Warrants, and (iii) any shares of Laser Common Stock issued pursuant to the
Warrants, and, in each case, any other securities issued or issuable upon or in
respect of such securities by way of conversion, exchange, dividend, split or
combination, recapitalization, merger, consolidation, other reorganization or
otherwise. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when such securities have been sold or
otherwise transferred by Parent Holdings pursuant to the Shelf Registration
Statement or pursuant to Rule 144 under the Securities Act.
The following defined term shall be added to the list of definitions
in their respective alphabetically ordered positions:
The term "Holdings Merger Stock" shall mean the shares of Laser
Common Stock issued to Parent Holdings in the Holdings Merger.
The term "Warrants" shall mean the warrants to purchase 23,000,000
(Twenty-Three Million) shares of Laser Common Stock issued to Parent Holdings
pursuant to Warrant No. W-1 dated August 24, 1998.
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ARTICLE II
REQUIRED REGISTRATION
Sections 2.1, 2.2 and 2.3 of Article II are amended and restated to
read in their entirety as follows:
Section 2.1 Required Registration.
(a) Form S-3. Promptly following a demand to such effect from any
holder of Registrable Securities, Laser shall prepare and file with the SEC a
registration statement (the "Shelf Registration Statement") on an appropriate
form permitting registration of the Registrable Securities so as to permit the
resale of the Registrable Securities pursuant to an offering on a delayed or
continuous basis under the Securities Act and shall use reasonable best efforts
to (i) cause the Shelf Registration Statement to be declared effective by the
SEC as promptly as practicable thereafter and (ii) permit the Shelf Registration
Statement to be used by Affiliates of Camper for resales of shares of Laser
Common Stock held by such Affiliates; provided, however, that any such
Affiliate using the Shelf Registration Statement shall agree in writing to be
bound by all of the restrictions, limitations and obligations of Parent Holdings
contained in this Agreement.
(b) Effectiveness. Laser shall use reasonable best efforts to keep
the Shelf Registration Statement continuously effective under the Securities Act
until the date that is the earliest to occur of (i) the date by which all
Registrable Securities have been sold and (ii) the date by which all Registrable
Securities are eligible for immediate sale to the public without registration
under Rule 144 under the Securities Act, with such sale not being limited by the
volume restrictions thereunder or otherwise.
(c) Amendments/Supplements. Laser shall amend and supplement the
Shelf Registration Statement and the prospectus contained therein if required by
the rules, regulations or instructions applicable to the registration form used
by Laser for such Shelf Registration Statement, if required by the Securities
Act.
(d) Offerings. At any time from and after the date on which the
Shelf Registration Statement is declared effective by the SEC (the "Effective
Date"), Parent Holdings, subject to the restrictions and conditions contained
herein and in the Merger Agreement and the Warrants to the extent applicable,
and subject further to compliance with all applicable state and federal
securities laws, shall have the right to dispose of all or any portion of the
Registrable Securities.
Section 2.2 Holdback Agreement.
From and after the Effective Date, upon the request of Laser, Parent
Holdings shall not effect any public sale or distribution (including sales
pursuant to Rule 144) of Registrable Securities that are equity securities of
Laser, or any securities convertible into or ex-
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changeable or exercisable for such securities, including the Warrants, (other
than any such sale or distribution of such securities pursuant to registration
of such securities on Form S-8 or any successor form) during the period
commencing on the date on which Laser commences a Laser Offering through the
sixty (60)-day period immediately following the closing date of such Laser
Offering; provided, however, that Parent Holdings shall not be obligated to
comply with this Section 2.2 on more than two (2) occasions in any twelve
(12)-month period; and provided, further, that notwithstanding anything to the
contrary in this Section 2.2 or Section 2.3, in no event shall Parent Holdings
be disabled from effecting offers or sales of Registrable Securities for more
than one-hundred-and-twenty (120) days during any twelve (12)-month period.
Section 2.3 Blackout Provisions.
In the event that, at any time while the Shelf Registration
Statement remains effective, Laser determines in its reasonable judgment and in
good faith that the sale of Registrable Securities would require disclosure of
material information which Laser has a bona fide business purpose for preserving
as confidential, Parent Holdings shall, upon receiving written notice from Laser
of such good faith determination, suspend sales of the Registrable Securities
for a period beginning on the date of receipt of such notice and expiring on the
earlier of (i) the date upon which such material information is disclosed to the
public or ceases to be material or (ii) forty-five (45) days after the receipt
of such notice from Laser; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.3 on more than two (2) occasions in any
twelve (12) month period; and provided, further, that notwithstanding anything
to the contrary in this Section 2.3 or Section 2.2, in no event shall Parent
Holdings be disabled from effecting offers or sales of Registrable Securities
for more than one-hundred-and-twenty (120) days during any twelve (12)-month
period.
* * *
Section 2.4(a) of Article II is hereby amended by deleting the word
"and" from the end of paragraph (12) thereof, replacing the period at the end of
paragraph (13) thereof with "; and" and adding the following additional
paragraph:
(14) will enter into customary agreements (including an underwriting
agreement in customary form) and take such actions as are reasonably required in
order to expedite or facilitate the sale of such Registrable Securities,
including, without limitation, cooperation, and causing its officers, employees
and advisors to cooperate, with the sellers of such Registrable Securities and
the underwriter(s), if any, including participation in meetings and road shows
held in connection with such sale.
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ARTICLE III
TRANSFERS OF REGISTRABLE SECURITIES
Sections 3.1 and 3.2 of Article III are amended and restated to read
in their entirety as follows:
Section 3.1 Transferability of Registrable Securities.
(a) Parent Holdings may not Transfer the Registrable
Securities, other than
(1) pursuant to Rule 144;
(2) pursuant to the Shelf Registration Statement; or
(3) in any other Transfer exempt from registration under the
Securities Act, and as to which Laser has received an opinion of
counsel, reasonably satisfactory to Laser, that such Transfer is so
exempt;
and shall in no event Transfer any Registrable Securities in violation of
the Settlement Agreement.
Section 3.2 Restrictive Legends.
Parent Holdings hereby acknowledges and agrees that, during the term
of this Agreement, all of the Registrable Securities shall include the legend
set forth in Section 7.2 of the Holdings Merger Agreement, the legend set forth
on the Warrants or as provided in the Warrants or as may otherwise be reasonably
appropriate to reflect the fact that such Registrable Securities have not been
issued in transactions registered under the Securities Act, unless at the time
such Registrable Securities have been registered under the Securities Act.
ARTICLE IV
MISCELLANEOUS
Sections 4.5 and 4.11 of Article IV are amended and restated in
their entirety to read as follows:
Section 4.5 Binding Effect; Assignment.
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, successors and permitted assigns, but, except as expressly
contemplated herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly, by Laser or
Parent Holdings without the prior written consent of the other (except in the
case of
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any assignment in whole or in part by Parent Holdings to any Affiliate,
as to which no such consent shall be required); provided, that in connection
with a bona fide pledge of any Registrable Securities to secure indebtedness or
other obligations, Parent Holdings may assign its rights, interests and
obligations hereunder to the beneficiary of such pledge in whole or in part.
Upon any permitted assignment (other than in connection with any such bona fide
pledge), this Agreement shall be amended to substitute or add the assignee as a
party hereto in a writing reasonably acceptable to the other party.
Section 4.11 Termination; Restrictive Legend.
This Agreement shall terminate only following such time as Sunbeam
shall have no further obligation under Section 2.1(b) to use its reasonable best
efforts to keep the Shelf Registration Statement effective; provided, however,
that the provisions of Section 2.6 hereof shall survive termination of this
Agreement. It is understood and agreed that any restrictive legends set forth on
any Registrable Securities shall be removed by delivery of substitute
certificates without such legends and such Registrable Securities shall no
longer be subject to the terms of this Agreement or upon the resale of such
Registrable Securities in accordance with the terms of this Agreement.
ARTICLE V
OTHER
The following provisions shall also apply to this Amendment:
Section 5.1 Effectiveness of this Amendment. The provisions of this
Amendment shall be effective as of the date hereof.
Section 5.2 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 5.3 Governing Law. This Amendment shall be
governed by the laws of the State of New York, without regard to the
principles of conflicts of law thereof.
Section 5.4 No Waiver. The execution, delivery and performance of
this Amendment shall not operate as a waiver of any condition, power, remedy or
right exercisable in accordance with the Registration Rights Agreement, and
shall not constitute a waiver of any provision of the Registration Rights
Agreement, except as expressly provided herein.
Section 5.5 Descriptive Headings. The article and section headings
contained in this Amendment are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Amendment.
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IN WITNESS WHEREOF, the undersigned hereby agree to be bound by the
terms and provisions of this Amendment as of the date first above written.
SUNBEAM CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President &
General Counsel
XXXXXXX (PARENT) HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxx
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Name:
Title:
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