Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of April 1, 1998, between
CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation (the "COMPANY"), and
CCPC ACQUISITION CORP. (the "PARENT").
RECITALS
As of the date hereof, the Parent is the holder of 22,080,000 shares
of common stock (the "COMMON STOCK") of the Company. The Company desires to
provide to the Parent and to each other Holder (as defined below) rights to
registration under the Securities Act (as defined below) of Registrable
Securities (as defined below), on the terms and subject to the conditions set
forth herein.
AGREEMENT
1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
"COMMON OR COMMON EQUIVALENT REGISTRABLE SECURITIES": Registrable
Securities which are (i) Common Stock or (ii) Preferred Stock or Warrants
that are convertible into or exchangeable or exercisable for Common Stock.
"DEMAND PARTY": (a) the Parent or (b) any other Holder or Holders,
including, without limitation, any Person that may become an assignee of
the Parent's rights hereunder; PROVIDED that to be a Demand Party under
this clause (b), a Holder or Holders must either individually or in
aggregate with all other Holders with whom it is acting together to demand
registration own at least 1% of the total number of Registrable Securities.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"HOLDER": The Parent and any other holder of Registrable Securities
(including any direct or indirect transferees of the Parent who agrees in
writing to be bound by the provisions of this Agreement).
"PERSON": Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
"REGISTRABLE SECURITIES": Any Common Stock, Preferred Stock or
Warrants acquired by the Parent from the Company or any affiliate of the
Company, Common Stock issued upon the conversion of any Preferred Stock or
upon the exercise of Warrants or otherwise, and any Common Stock, Preferred
Stock or Warrants which
may be issued or distributed in respect thereof by way of stock dividend or
stock split or other distribution, recapitalization or reclassification.
Any particular Registrable Securities that are issued shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale by the Holder of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) such securities shall
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) such securities shall have been
otherwise transferred, new certificates for such securities not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act
or any state securities or blue sky law then in force, or (iv) such
securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES": Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i)
all SEC and stock exchange or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees (including, if applicable,
the fees and expenses of any "qualified independent underwriter," as such
term is defined in Schedule E to the By-laws of the NASD, and of its
counsel), (ii) all fees and expenses of complying with securities or blue
sky laws (including fees and disbursements of counsel for the underwriters
in connection with blue sky qualifications of the Registrable Securities),
(iii) all printing, messenger and delivery expenses, (iv) all fees and
expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to clause (viii) of Section
4 and all rating agency fees, (v) the fees and disbursements of counsel for
the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities being registered to represent such
Holders in connection with each such registration, (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, including liability insurance if the Company so desires or if
the underwriters so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if
any, and (viii) other reasonable out-of-pocket expenses of Holders
(PROVIDED that such expenses shall not include expenses of counsel other
than those provided for in clause (vi) above).
"SECURITIES ACT": The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
2. INCIDENTAL REGISTRATIONS. (a) RIGHT TO INCLUDE COMMON OR COMMON
EQUIVALENT REGISTRABLE SECURITIES. If the Company at any time after the date
hereof proposes to register its Common Stock (or any security, including,
without limitation, Preferred Stock
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or Warrants, which is convertible into or exchangeable or exercisable for Common
Stock) under the Securities Act (other than a registration on Form S-4 or S-8,
or any successor or other forms promulgated for similar purposes), whether or
not for sale for its own account, in a manner which would permit registration of
Common or Common Equivalent Registrable Securities for sale to the public under
the Securities Act, it will, at each such time, give prompt written notice to
all Holders of Common or Common Equivalent Registrable Securities of its
intention to do so and of such Holders' rights under this Section 2. Upon the
written request of any such Holder made within 15 days after the receipt of any
such notice (which request shall specify the Common or Common Equivalent
Registrable Securities intended to be disposed of by such Holder), the Company
will use its best efforts to effect the registration under the Securities Act of
all Common or Common Equivalent Registrable Securities which the Company has
been so requested to register by the Holders thereof, to the extent requisite to
permit the disposition of the Common or Common Equivalent Registrable Securities
so to be registered; PROVIDED that (i) if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to proceed with the proposed
registration of the securities to be sold by it, the Company may, at its
election, give written notice of such determination to each Holder of Common or
Common Equivalent Registrable Securities and, thereupon, shall be relieved of
its obligation to register any Common or Common Equivalent Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (ii) if such
registration involves an underwritten offering, all Holders of Common or Common
Equivalent Registrable Securities requesting to be included in the Company's
registration must sell their Common or Common Equivalent Registrable Securities
to the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 2(a) involves an underwritten public offering, any Holder of
Common or Common Equivalent Registrable Securities requesting to be included in
such registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration. Nothing in this
Section 2(a) shall operate to limit the right of a Holder to (i) request the
registration of Common Stock issuable upon conversion or exercise of convertible
securities held by such Holder notwithstanding the fact that, at the time of
request, such Holder holds only convertible securities or (ii) request the
registration at one time of both Common Stock and Common Equivalent Registrable
Securities.
(b) EXPENSES. The Company will pay all Registration Expenses in
connection with each registration of Common or Common Equivalent Registrable
Securities requested pursuant to this Section 2.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant
to this Section 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
price, timing or distribution of the securities offered in such offering as
contemplated by the Company, then the Company will include in such registration
(i) first, 100% of the securities proposed to be sold by the Company and, if
such
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registration was initiated pursuant to a "demand" registration right granted
pursuant to the Stockholders' Agreement dated April 1, 1998 among the Company,
the Parent and Corning Incorporated (the "CORNING STOCKHOLDERS' AGREEMENT"), the
parties exercising such right and (ii) second, to the extent of the number of
securities requested to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, the number of securities which the Holders (which term, for
the purposes of this paragraph, shall include other holders of Common Stock
having similar "incidental" or "piggyback" registration rights under the Corning
Stockholders' Agreement) have requested to be included in such registration,
such amount to be allocated pro rata among all requesting Holders on the basis
of the relative number of securities then held by each such Holder (provided
that any securities thereby allocated to any such Holder that exceed such
Holder's request will be reallocated among the remaining requesting Holders in
like manner).
3. REGISTRATION ON REQUEST. (a) REQUEST BY THE DEMAND PARTY. At any
time upon the written request of the Demand Party requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all other Holders of such Registrable Securities, and
thereupon will, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i) such Registrable Securities (including, if such request
relates to Preferred Stock or Warrants which are convertible into or
exchangeable or exercisable for shares of Common Stock, the shares of
Common Stock issuable upon such conversion, exchange or exercise) which the
Company has been so requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class or series
as are to be registered at the request of a Demand Party and which the
Company has been requested to register by any other Holder thereof by
written request given to the Company within 15 days after the giving of
such written notice by the Company (which request shall specify the amount
and intended method of disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; PROVIDED that, with respect to any Demand Party other than the
Parent, the Company shall not be obligated to effect any registration of
Registrable Securities under this Section 3(a) unless such Demand Party requests
that the Company register at least 1% of the total number of Registrable
Securities; and PROVIDED, FURTHER, that, unless Holders of a majority of the
shares of Registrable Securities held by Holders consent thereto in writing, the
Company shall not be obligated to file a registration statement relating to any
registration request under this Section 3(a) (x) within a period of nine months
after the effective date of any other registration statement relating to any
registration request under this Section 3(a) which was not effected on Form S-3
(or any successor or similar short-form registration statement) or relating to
any registration effected under Section 2, or (y) if with respect thereto the
managing underwriter, the SEC, the Securities Act or the rules and regulations
thereunder, or the form on which the registration statement is to be filed,
would require the conduct of an audit other than the regular audit conducted by
the Company at the end of its fiscal year, in which case the filing may be
delayed until the completion of such regular audit (unless the Holders of the
Registrable Securities to be registered agree to pay the expenses of the Company
in connection with such an audit other than the
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regular audit). Nothing in this Section 3(a) shall operate to limit the right
of a Holder to (i) request the registration of Common Stock issuable upon
conversion or exercise of convertible securities held by such Holder
notwithstanding the fact that, at the time of request, such Holder holds only
convertible securities or (ii) request the registration at one time of both
Common Stock and Common Equivalent Registrable Securities.
(b) REGISTRATION STATEMENT FORM. If any registration
requested pursuant to this Section 3 which is proposed by the Company to be
effected by the filing of a registration statement on Form S-3 (or any successor
or similar short-form registration statement) shall be in connection with an
underwritten public offering, and if the managing underwriter shall advise the
Company in writing that, in its opinion, the use of another form of registration
statement is of material importance to the success of such proposed offering,
then such registration shall be effected on such other form.
(c) EXPENSES. The Company will pay all Registration Expenses in
connection with the first six (6) registrations of each class or series of
Registrable Securities pursuant to this Section 3 upon the written request of
any of the Holders, PROVIDED that, for purposes hereof, a request to register
Common Stock into which Preferred Stock or Warrants are convertible,
exchangeable or exercisable in conjunction with a registration of such Preferred
Stock or Warrants shall be deemed to be one request for registration of a class
or series of Registrable Securities. All expenses for any subsequent
registrations of Registrable Securities pursuant to this Section 3 shall be paid
pro rata by the Company and all other Persons (including the Holders)
participating in such registration on the basis of the relative number of shares
of Common Stock or relative aggregate liquidation preference of the shares of
Preferred Stock, or the relative number of Warrants, as the case may be, of each
such person whose Registrable Securities are included in such registration.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless it
has become effective; PROVIDED that if, within 180 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, such registration will be
deemed not to have been effected.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this Section 3 involves an underwritten offering, the Holders of a majority
of the shares of Registrable Securities which are held by Holders and which the
Company has been requested to register shall have the right to select the
investment banker or bankers and managers to administer the offering; PROVIDED,
HOWEVER, that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities)
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exceeds the number which can be sold in such offering, the Company will include
in such registration only the Registrable Securities requested to be included in
such registration. In the event that the number of Registrable Securities
requested to be included in such registration exceeds the number which, in the
opinion of such managing underwriter, can be sold, the number of such
Registrable Securities to be included in such registration shall be allocated
pro rata among all requesting Holders on the basis of the relative number of
shares of Registrable Securities then held by each such Holder (provided that
any shares thereby allocated to any such Holder that exceed such Holder's
request shall be reallocated among the remaining requesting Holders in like
manner). In the event that the number of Registrable Securities requested to be
included in such registration is less than the number which, in the opinion of
the managing underwriter, can be sold, the Company may include in such
registration the securities the Company proposes to sell up to the number of
securities that, in the opinion of the underwriter, can be sold.
(g) ADDITIONAL RIGHTS. If the Company at any time grants to any other
holders of Common Stock, Preferred Stock or Warrants any rights to request the
Company to effect the registration under the Securities Act of any such shares
of Common Stock, Preferred Stock or Warrants on terms more favorable to such
holders than the terms set forth in this Section 3, the terms of this Section 3
shall be deemed amended or supplemented to the extent necessary to provide the
Holders such more favorable rights and benefits.
4. REGISTRATION PROCEDURES. If and whenever the Company is required
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end of
the period within which a request for registration may be given to the
Company, file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective, PROVIDED, HOWEVER, that the Company may
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 270 days and to comply
with the provisions of the Securities Act, the Exchange Act and the rules
and regulations of the SEC thereunder with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; PROVIDED that
before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel selected pursuant
to Section 7 hereof 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 will be subject to the
review of such counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto
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(in each case including all exhibits filed therewith, including any
documents incorporated by reference), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such registration in such jurisdictions as each
seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section 4,
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
seller, prepare and furnish to such seller 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
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;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder;
(viii) (A) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion of a convertible
security), use its best efforts to list such Registrable Securities on any
securities exchange on which the Common Stock is then listed if such
Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (B) if such Registrable
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Securities are convertible securities, upon the reasonable request of
sellers of a majority of shares of such Registrable Securities, use its
best efforts to list the convertible securities and, if requested, the
Common Stock underlying the convertible securities, notwithstanding that at
the time of request such sellers hold only convertible securities, on any
securities exchange so requested, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of
such exchange; and (C) and use its best efforts to provide a transfer agent
and registrar for such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(ix) enter into 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 5 hereof, and
take such other actions as sellers of a majority of shares of such
Registrable Securities or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers
of a majority of shares of such Registrable Securities shall reasonably
request (provided that Registrable Securities constitute at least 25% of
the securities covered by such registration statement);
(xi) 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 and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, 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, attorney, accountant or agent in connection with such
registration statement;
(xii) notify counsel (selected pursuant to Section 7 hereof) for
the Holders of Registrable Securities included in such registration
statement and the managing underwriter or agent, immediately, and confirm
the notice in writing (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment prospectus
shall have been filed, (ii) of the receipt of any comments from the SEC,
(iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv)
of the issuance by the SEC of any stop order suspending the effectiveness
of the registration statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for
any of such purposes;
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(xiii) make every reasonable effort 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
and, if any such order is issued, to obtain the withdrawal of any such
order at the earliest possible moment;
(xiv) 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;
(xv) 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;
(xvi) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent 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; and
(xvii) cooperate with each seller of Registrable Securities 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.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 4, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 4, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the
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period mentioned in clause (ii) of this Section 4 shall be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to clause (vi) of this Section 4 and including the date
when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by clause (vi) of this Section 4.
5. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. In the event
of any registration of any securities of the Company under the Securities Act
pursuant to Section 2 or 3, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers or general and limited partners
(including any director, officer, affiliate, employee, agent and controlling
Person of any of the foregoing), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "INDEMNIFIED PARTIES"), against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including reasonable attorney's fees and reasonable expenses of investigation)
to which such Indemnified Party may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof, whether or not such Indemnified
Party is a party thereto) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or (b) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, and the Company will
reimburse such Indemnified Party for any legal or any other expenses reasonably
incurred by it in connection with investigating or defending against any such
loss, claim, liability, action or proceeding; PROVIDED that the Company shall
not be liable to any Indemnified Party in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
amendment or supplement thereto or in any such preliminary, final or summary
prospectus in reliance upon and in conformity with written information furnished
to the Company with respect to such seller through an instrument duly executed
by such seller specifically stating that it is for use in the preparation
thereof; and PROVIDED, FURTHER, that the Company will not be liable to any
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, under the indemnity agreement in this Section
5(a) with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the extent
that any such loss, claim, damage or liability of such underwriter or
controlling Person results from the fact that such underwriter sold Registrable
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus or of the
final prospectus as then amended or supplemented, whichever is most recent, if
the Company has previously furnished copies thereof to such underwriter. For
purposes of the last proviso to the immediately preceding sentence, the term
"prospectus" shall not be deemed to include the documents incorporated therein
by reference, and no Person who participates as an
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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 seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
In addition, the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the Parent, each affiliate of the
Parent and their respective directors and officers or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including reasonable
attorney's fees and reasonable expenses of investigation) in any manner arising
out of or relating to (x) the purchase or ownership of capital stock or other
securities of the Company by the Parent or any such other Person or (y) any
litigation to which the Parent or any such other Person is made a party in its
capacity as a stockholder or owner of securities (or a partner, director,
officer, affiliate, employee, agent or controlling Person of a stockholder or
owner of securities) of the Company.
(b) INDEMNIFICATION BY THE SELLER. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 5) the Company and all other prospective sellers with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company with
respect to such seller through an instrument duly executed by such seller or
underwriter specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of such securities by such
seller. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; PROVIDED that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying
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party of its obligations under the preceding subdivisions of this Section 5,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
Indemnified Party, unless in such Indemnified Party's reasonable judgment a
conflict of interest between such Indemnified Party and indemnifying parties may
exist in respect of such claim, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will consent to entry of any judgment or
enter into any settlement which 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.
(d) CONTRIBUTION. If the indemnification provided for in this Section
5 from the indemnifying party is unavailable to an Indemnified Party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the 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 losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and Indemnified Parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and Indemnified Parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or Indemnified Parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 5(d) as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) 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 paragraph.
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.
(e) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
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(f) NON-EXCLUSIVITY. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. RULE 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may deregister
under Section 12 of the Exchange Act if it then is permitted to do so pursuant
to the Exchange Act and the rules and regulations thereunder.
7. SELECTION OF COUNSEL. In connection with any registration of
Registrable Securities pursuant to Sections 2 and 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; PROVIDED, HOWEVER, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
8. MISCELLANEOUS. (a) OTHER INVESTORS. The Company may enter into
agreements with other purchasers of Common Stock who are then employees of the
Company or any of its subsidiaries, making them parties hereto (and thereby
giving them all, or a portion, of the rights, preferences and privileges of an
original party hereto) with respect to additional shares of Common Stock (the
"SUPPLEMENTAL AGREEMENTS"); PROVIDED, HOWEVER, that pursuant to any such
Supplemental Agreement, such purchaser expressly agrees to be bound by all of
the terms, conditions and obligations of this Agreement as if such purchaser
were an original party hereto. All shares of Common Stock issued or issuable
pursuant to such Supplemental Agreements shall be deemed to be Registrable
Securities.
(b) HOLDBACK AGREEMENT. If any such registration shall be in
connection with an underwritten public offering, each Holder of Registrable
Securities agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any equity securities of
the Company, or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or such period not to exceed
180 days as the underwriting agreement may require (or such lesser period as the
managing underwriters may permit) after the effective date of such registration
(except as part of such registration), and the Company hereby also so agrees and
agrees to cause each other holder of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of the
Company purchased from the Company (at any time other than in a public offering)
to so agree.
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(c) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding; PROVIDED, HOWEVER,
that no amendment, waiver or consent to the departure from the terms and
provisions of this Agreement that is adverse to the Parent or any of its
successors and assigns shall be effective as against any such Person for so long
as such Person holds any Registrable Securities unless consented to in writing
by such Person. Each Holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
8(b), whether or not such Registrable Securities shall have been marked to
indicate such consent.
(d) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Upon any merger or consolidation of Parent
with the Company or any liquidation of Parent, the stockholder or stockholders
of Parent shall succeed to all of Parent's rights and obligations hereunder. In
addition, and whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the parties hereto
other than the Company shall also be for the benefit of and enforceable by any
subsequent Holder of any Registrable Securities, subject to the provisions
contained herein. Without limitation to the foregoing, in the event that the
Parent or any of its successors or assigns or any other subsequent Holder of any
Registrable Securities distributes or otherwise transfers any shares of the
Registrable Securities to any of its present or future shareholders, members,
general or limited partners, the Company hereby acknowledges that the
registration rights granted pursuant to this Agreement shall be transferred to
such shareholders, members or partners on a pro rata basis, and that at or after
the time of any such distribution or transfer, any such shareholder, member,
partner or group of shareholders, members or partners may designate a Person to
act on its behalf in delivering any notices or making any requests hereunder.
(e) NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) if to the Company, to:
Corning Consumer Products Company
E-Building
Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: President
(ii) if to the Parent, to:
c/x Xxxxxx Capital Management Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Chief Executive Officer
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with copies to:
KKR Associates
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx
-and-
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq
(iii) if to any other holder of Registrable Securities, to the
address of such
other holder as shown in the stock record book of the Company, or
to such other address as any of the above shall have designated
in writing to all of the other above.
All such notices and communications shall be deemed to have been given
or made (A) when delivered by hand, (B) five business days after being deposited
in the mail, postage prepaid, (C) when telexed answer-back received or (D) when
telecopied, receipt acknowledged.
(f) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(g) SEVERABILITY. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(h) COUNTERPARTS. This Agreement may be executed in counterparts, and
by different parties on separate counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
(i) GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York applicable to contracts made and to be performed therein. The
parties to this Agreement hereby agree to submit to the jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof in any
action or proceeding arising out of or relating to this Agreement.
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(j) SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.
[Continued on next page.]
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
CORNING CONSUMER PRODUCTS COMPANY
By
----------------------------
Name:
Title:
CCPC ACQUISITION CORP.
By
----------------------------
Name:
Title:
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