Page 10 of 34 Pages
EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
THIS IS A REGISTRATION RIGHTS AGREEMENT, dated as of July 31, 2002 (this
"Agreement"), by and among OEP Imaging Corporation, a Delaware corporation (the
"Company"), Polaroid Corporation, a Delaware corporation ("Polaroid") and,
solely for the purpose of agreeing to be bound by the provisions in Sections
7.1, 8.1 and 8.2 hereinafter, One Equity Partners, LLC, a Delaware limited
liability company ("OEP").
BACKGROUND
A. This Agreement is being entered into in connection with the
consummation of the transactions contemplated by the Second Amended and Restated
Asset Purchase Agreement, dated as of July 3, 2002 (the "Asset Purchase
Agreement"), between the Company, Polaroid and certain subsidiaries of Polaroid.
B. In connection with the consummation of the transactions
contemplated by the Asset Purchase Agreement, the Company has issued to Polaroid
the Sellers' Stock (as defined in the Asset Purchase Agreement), consisting of
(i) shares of Series A 8.0% Cumulative Compounding Preferred Stock, par value
$.001 per share, of the Company (the "Preferred Stock"), and (ii) shares of
Common Stock, par value $.001 per share, of the Company (the "Common Stock").
C. The Company, Polaroid and OEP wish to set forth herein certain
agreements regarding certain rights and obligations with respect to the
Registrable Securities (as hereinafter defined).
TERMS
In consideration of the mutual covenants contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
REGISTRATION RIGHTS
1.1 Registration Rights; Certain Limitations. Polaroid shall have
registration rights with respect to the Registrable Securities as set forth in
this Agreement. Notwithstanding any other provision of this Agreement to the
contrary, however, (i) Polaroid shall not be entitled to request any Demand
Registration (as hereinafter defined), and the Company shall not be obligated to
prepare, file or cause to become effective any registration statement in
connection with any Demand Registration, involving any sale or other disposition
of Registrable Securities other than the distribution by Polaroid of Registrable
Securities to the creditors of Polaroid in connection with and as required by
the plan of reorganization or plan of liquidation which is confirmed in
connection with the current bankruptcy proceedings of Polaroid (the
"Distribution"), and (ii) Polaroid shall not be entitled to any registration
rights with respect to the Registrable Securities (regardless of whether a
Demand Registration shall have previously been requested), and the Company shall
not be obligated to prepare, file or cause to become effective any registration
Page 11 of 34 Pages
statement in connection with any Demand Registration if Polaroid shall have
received on or prior to the first anniversary of the date of this Agreement a
letter signed on behalf of the Company (the "Letter") informing Polaroid that
the Bankruptcy Court order contemplated by Section 7.05 of the Asset Purchase
Agreement has been entered and is no longer subject to appeal; provided,
however, that if Polaroid shall have received the Letter in accordance with
clause (ii) of this sentence, the Company shall register the Preferred Stock and
the Common Stock pursuant to Section 12(g) of the Exchange Act (as hereinafter
defined) on or prior the first anniversary of the date of this Agreement.
Without limiting the generality of clause (i) of the preceding sentence,
Polaroid shall not be entitled to request a Demand Registration which
contemplates a registration in which Registrable Securities are sold to an
underwriter for reoffering to the public, and no such underwritten offering
shall be made pursuant to any Demand Registration.
ARTICLE II
DEFINITIONS
2.1 Definitions. As used herein, the following terms shall have the
following meanings.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Business Day" means any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the State of New York.
"Current Market Price" means, in respect of any share of Common Stock
on any date herein specified, (i) for so long as there shall then be a public
market for the Preferred Stock or the Common Stock, the average of the Daily
Market Prices for the 20 consecutive Business Days commencing 30 Business Days
before such specified date, and (ii) if there is then no public market for the
Preferred Stock or the Common Stock, the fair market value per share of Common
Stock at such specified date as reasonably determined in good faith by the board
of directors of the Company, including the approval of at least one director
designated by Polaroid; provided, however, that if a director designated by
Polaroid does not approve the fair market value per share of Common Stock as
determined by the board of directors of the Company, the fair market value per
share of Common Stock shall be determined by a nationally recognized investment
banking firm mutually acceptable to the Company and Polaroid.
"Daily Market Price" means (i) if the Preferred Stock or Common Stock
is then listed and traded on the New York Stock Exchange, Inc. (the "NYSE"), the
closing price on such day as reported on the NYSE Composite Transactions Tape;
(ii) if the Preferred Stock or Common Stock is not then listed and traded on the
NYSE, the closing price on such day as reported by the principal national
securities exchange on which the Preferred Stock or Common Stock is then listed
and traded; (iii) if the Preferred Stock or Common Stock is not then listed and
traded on any such securities exchange, the last reported sale price on such day
on the Nasdaq National Market (the "Nasdaq Market"); (iv) if the Preferred Stock
or Common Stock is not then listed and traded on any such securities exchange
and not traded on the Nasdaq Market, the last reported sale price on such day on
Page 12 of 34 Pages
the Nasdaq SmallCap Market (the "Nasdaq SmallCap Market"); (v) if the Preferred
Stock or Common Stock is not then listed and traded on any such securities
exchange and not traded on the Nasdaq Market or the Nasdaq SmallCap Market, the
average of the highest reported bid and lowest reported asked price on such day
as reported by the National Association of Securities Dealers, Inc. Automated
Quotation System (the "NASDAQ System"); or (vi) if the Preferred Stock or Common
Stock is not then listed and traded on any such securities exchange, not traded
on the Nasdaq Market or the Nasdaq SmallCap Market and bid and asked prices are
not reported by the NASDAQ System, the average of the closing bid and asked
prices, as reported by The Wall Street Journal for the over-the-counter market.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation:
(i) all registration and filing fees, (ii) fees and expenses relating to
compliance with securities or blue sky laws (including fees and expenses of
counsel in connection with blue sky qualifications of the securities
registered), (iii) printing, messenger and delivery expenses, (iv) internal
expenses of the Company (including all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) fees and expenses of
counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters), and (vi) fees and expenses
of any special experts retained by the Company in connection with such
registration. Under no circumstances shall "Registration Expenses" include the
fees and expenses of any underwriters or any underwriting discounts or
commissions.
"Registrable Securities" means 31,230 shares of Preferred Stock and
1,076,923 shares of Common Stock issued to Polaroid in connection with the
consummation of the transactions contemplated by the Asset Purchase Agreement,
in any case until (i) a registration statement covering such securities has been
declared effective by the SEC and such securities have been disposed of pursuant
to the Distribution, (ii) such securities have been disposed of under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act have been met, or
such securities may be disposed of pursuant to Rule 144(k), or (iii) such
securities may be disposed of without subsequent registration under any other
provisions of the Securities Act.
"Rule 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
Unless otherwise defined in this Agreement, all terms used in this Agreement
shall have the meanings ascribed to them in the Asset Purchase Agreement.
Page 13 of 34 Pages
ARTICLE III
DEMAND REGISTRATIONS
3.1 Demand Registrations.
(a) Subject to Sections 1.1 and 3.1(b), Polaroid may request
registration under the Securities Act of all or part of the Registrable
Securities on Form S-1 (or any similar long-form registration) or, if available,
on Form S-2 or Form S-3 (or any similar short-form registration). Each
registration requested pursuant to this Section 3.1(a) is referred to herein as
a "Demand Registration". Each request for a Demand Registration shall specify
the approximate number of Registrable Securities requested to be registered.
(b) Polaroid shall not be entitled to request any Demand Registration
at any time on or after the fourth anniversary of the date of this Agreement.
The Company will not be obligated to effect any Demand Registration within six
months after the effective date of a previous Demand Registration, nor will the
Company be obligated to effect more than two Demand Registrations in the
aggregate (it being understood that Polaroid shall only be entitled to request
the second such Demand Registration if the Distribution of all of the
Registrable Securities has not been completed pursuant to the first Demand
Registration requested by Polaroid).
(c) The Company shall use its reasonable best efforts to have the
registration statement in connection with the first Demand Registration
requested by Polaroid declared effective by the SEC on or prior to the first
anniversary of the date of this Agreement. The Company shall use its reasonable
best efforts to have the registration statement in connection with the second
Demand Registration requested by Polaroid, if any, declared effective by the SEC
as soon as practicable after the filing thereof.
(d) Notwithstanding any other provision of this Agreement to the
contrary, the Company may delay the preparation, filing or effectiveness of any
registration statement in connection with a Demand Registration for a period not
to exceed 45 days in any three-month period, or for three periods not to exceed
an aggregate of 90 days in any 12-month period, for valid business reasons, to
be determined in the reasonable judgment of the board of directors of the
Company, including without limitation the acquisition or divestiture of assets,
pending corporate developments and similar events; provided, however, that prior
to instituting any such delay the Company shall provide Polaroid with written
notice thereof, which notice need not specify the nature of the event giving
rise to such delay, and shall obtain the written consent of Polaroid thereto
(which consent shall not be unreasonably withheld).
ARTICLE IV
REGISTRATION PROCEDURES
4.1 Registration Procedures. Whenever Polaroid has requested that any
Registrable Securities be registered pursuant to Section 3.1 hereof, the Company
Page 14 of 34 Pages
will, subject to the provisions hereof, use its reasonable best efforts to
effect the registration of such Registrable Securities, and pursuant thereto the
Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable best efforts to
cause such registration statement to become effective within the time periods
specified in Section 3.1(c) above (provided, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
will furnish to Polaroid copies of all such documents proposed to be filed);
(b) 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 until the
Distribution of all Registrable Securities covered by such registration
statement is completed, but not more than 30 days;
(c) furnish to Polaroid such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as Polaroid may reasonably request in order to facilitate the
Distribution of such Registrable Securities;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as Polaroid reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable Polaroid to
consummate the Distribution in such jurisdictions of such Registrable Securities
(provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction);
(e) notify Polaroid, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of Polaroid, the
Company will promptly prepare a supplement or amendment to such prospectus so
that, as thereafter delivered, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar securities
issued by the Company are then listed and, if not so listed, to be listed on the
Nasdaq Market and, if not so listed on the Nasdaq Market, to be listed on the
Nasdaq SmallCap Market and, if not so listed on the Nasdaq SmallCap Market, to
cause to have the bid and asked prices for such Registrable Securities reported
on the NASDAQ System or, failing that, to cause to have such Registrable
Securities traded in the over-the-counter market;
(g) not later than the effective date of the registration statement,
obtain a CUSIP number for the Registrable Securities;
Page 15 of 34 Pages
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(i) enter into such customary agreements and take all such other
actions as Polaroid may reasonably request in order to expedite or facilitate
the Distribution of such Registrable Securities;
(j) make available for inspection by Polaroid and any attorney,
accountant or other agent retained by Polaroid, all financial and other records,
pertinent corporate documents and properties of the Company as may reasonably be
requested, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by
Polaroid, any attorney, accountant or agent in connection with such registration
statement;
(k) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to the creditors
of Polaroid who shall have received Registrable Securities pursuant to the
Distribution, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in such registration statement for
Distribution in any jurisdiction, use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its reasonable best efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities (other than as
provided for in Section 4.1(d) above) as may be necessary to enable Polaroid to
consummate the Distribution of such Registrable Securities; and
(n) in connection with any Distribution of Registrable Securities that
will result in such securities no longer being Registrable Securities, cooperate
with Polaroid to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and to register such Registrable Securities in such amounts and
denominations and in such names as Polaroid may request at least two Business
Days prior to the Distribution of such Registrable Securities.
4.2 Polaroid Information. Polaroid may not include any Registrable
Securities in a registration statement pursuant to a Demand Registration unless
and until Polaroid furnishes to the Company in writing, within 15 days after
receipt of a request therefor, the information specified in Item 507 of
Regulation S-K under the Securities Act and such other information as the
Company may reasonably request for use in connection with any such registration
Page 16 of 34 Pages
statement. Polaroid agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by Polaroid not materially misleading.
ARTICLE V
REGISTRATION EXPENSES
5.1 Registration Expenses. Except as otherwise expressly set forth
herein, all Registration Expenses incident to the Company's performance or
compliance with this Agreement shall be borne by the Company.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
Polaroid, its directors and officers, and each Person who controls Polaroid
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse Polaroid, such director, officer or controlling Person for any
legal or other expenses reasonably incurred by Polaroid, such director, officer
or controlling Person in connection with the investigation or defense of such
loss, claim, damage, liability or expense, except insofar as the same are caused
by or contained in any information furnished in writing to the Company by
Polaroid expressly for use therein or by Polaroid's failure to deliver a copy of
the registration statement or prospectus or any amendment or supplement thereto
after the Company has furnished Polaroid with a sufficient number of copies of
the same.
(b) In connection with any registration statement in which Polaroid is
participating, Polaroid will furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by Polaroid.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification; provided, that the failure to notify the
Page 17 of 34 Pages
indemnifying party shall not relieve it from any liability to the indemnified
party hereunder except to the extent the indemnifying party is actually
prejudiced thereby, and (ii) unless such indemnified party has been advised in
writing by counsel that it would be impermissible under the applicable standards
of professional conduct for one law firm to represent both the Company and the
indemnified party, permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided hereunder will remain in full force
and effect regardless of any investigation made by or on behalf of the
indemnified party or any director, officer or controlling Person of such
indemnified party and will survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
ARTICLE VII
CERTAIN COVENANTS
7.1 Directors and Voting Agreement. From the date of this Agreement
until the earlier of the date the registration statement in connection with the
first Demand Registration requested by Polaroid is declared effective by the SEC
or the date Polaroid receives the Letter, each of Polaroid and OEP shall take
all actions necessary (including without limitation voting the Preferred Stock
and Common Stock entitled to vote and owned by each of them, calling special
meetings of stockholders and executing and delivering written consents) to
ensure that the board of directors of the Company will include two directors
designated by Polaroid.
7.2 Anti-Dilution Protection. From the date of this Agreement until
the earlier of the date the registration statement in connection with the first
Demand Registration requested by Polaroid is declared effective by the SEC or
the date Polaroid receives the Letter, the Company shall not issue any shares of
its equity securities (or any debt securities convertible into or exchangeable
for equity securities) to OEP or any of its affiliates (as such term is defined
pursuant to Rule 12b-2 promulgated under the Exchange Act) without obtaining the
prior written consent of Polaroid; provided, however, that the foregoing
restriction shall not apply to (i) shares of Preferred Stock and Common Stock
issued in connection with the consummation of the transactions contemplated by
the Asset Purchase Agreement, (ii) shares of Preferred Stock or Common Stock
issued at an issue price per share equal to or greater than 95% of the Current
Market Price, (iii) securities issued upon the conversion or exercise of any
security, (iv) securities issued as a dividend or (v) any transaction in respect
of a security that is available to all holders of such security on a pro rata
basis.
Page 18 of 34 Pages
7.3 Confidential Information. Polaroid hereby agrees that Confidential
Information (as defined herein) has been and will be made available to Polaroid
in connection with its interest in the Company. From the date hereof until such
time as the Company shall have a class of securities registered pursuant to
Section 12(g) of the Exchange Act, the Company shall deliver to Polaroid (or the
plan administrator of Polaroid's bankruptcy estate; provided that such plan
administrator has agreed in writing to be subject to the provisions of this
Section 7.3) unaudited quarterly financial statements and audited annual
consolidated financial statements on or around the same time as the Company is
required to deliver financial statements to its senior lenders. Polaroid agrees
not to divulge, communicate, use to the detriment of the Company for Polaroid's
benefit or the benefit of any other person, or misuse in any way, in whole or
part, Confidential Information; provided, however, that Confidential Information
may be disclosed (i) to Polaroid's Representatives (as defined herein) in the
normal course of the performance of their duties, (ii) to the extent required by
applicable statute, law, rule or regulation (including complying with any oral
or written questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process to which Polaroid is
subject), or (iii) if the prior written consent of the Board of Directors of the
Company has been obtained. Polaroid and the plan administrator may also provide
copies of the financial statements referred to above to holders of unsecured
claims against Polaroid who request such information and who have a significant
amount of unsecured claims provided that the recipients enter into a
confidentiality agreement with the Company reasonably satisfactory to the
Company. The Company and Polaroid agree to negotiate the minimum amount of
unsecured claims that will be necessary for such a holder to receive such
financial statements, the intention being to minimize the number of recipients,
to the extent reasonable, given the private nature of the Company .
"Confidential Information" means any information concerning the Company, its
financial condition, business, subsidiaries, operations, prospects, trade
secrets or other intellectual property rights, personnel information, know-how,
customer lists or other confidential or proprietary information or data in the
possession of or to be furnished to Polaroid (whether furnished to Polaroid in
its capacity as a stockholder of the Company, by virtue of its present or former
position as, or right to designate, a director of the Company, or otherwise);
provided, that the term "Confidential Information" does not include information
which (a) was or becomes generally available publicly other than as a result of
a disclosure by Polaroid or Polaroid's directors, officers, employees, agents,
counsel, investment advisors, consultants or representatives (all such persons
being collectively referred to as "Representatives") in violation of this
Section 7.3, or (b) was or becomes available to Polaroid on a nonconfidential
basis from a source other than the Company, any regulatory entity or Polaroid or
its Representatives, provided, that such source is or was (at the time of
receipt of the relevant information) not, to the best of such Polaroid's
knowledge, bound by a confidentiality agreement with the Company or another
person. Polaroid agrees to hold, as the property of the Company, all memoranda,
books, papers, letters and other data (and all copies thereof or therefrom) made
by Polaroid or otherwise coming into Polaroid's possession, and at any time
deliver the same to the Company upon its demand.
7.4 Transfer Restriction. Prior to the first anniversary of the date
of this Agreement, Polaroid shall not sell, assign, convey, transfer, exchange,
pledge, hypothecate, make gifts of or in any manner whatsoever distribute or
dispose of or encumber or grant any rights or interests in or in respect of,
Page 19 of 34 Pages
create any voting trust or other agreement or arrangement with respect to the
transfer or grant of voting rights or any other beneficial interest in, create
any other claim or make any other transfer or disposition whatsoever, whether
voluntary or involuntary, affecting the right, title or interest in or
possession of the Registrable Securities (including any Distribution of the
Registrable Securities).
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment,
modification or waiver is set forth in a writing executed by the Company,
Polaroid and OEP. No course of dealing between or among any persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
8.2 Successors and Assigns; Entire Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, permitted assigns, executors, administrators and heirs. This
Agreement and any rights or obligations existing hereunder may not be assigned
or otherwise transferred by any party without the prior written consent of the
other parties hereto. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings, written or
oral, relating to the subject matter of this Agreement (it being understood that
the Company, Polaroid and OEP are contemporaneously entering into other
agreements and instruments in connection with the consummation of the
transactions contemplated by the Asset Purchase Agreement).
8.3 Separability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall remain in full force and effect unless deletion of such
provision causes this Agreement to become materially adverse to any party, in
which event the parties shall use reasonable efforts to arrive at an
accommodation which best preserves for the parties the benefits and obligations
of the offending provision.
8.4 Notices. All notices provided for or permitted hereunder shall be
made in writing by hand-delivery, registered or certified first-class mail, fax
or reputable courier guaranteeing overnight delivery to the other party at the
following addresses (or at such other address as shall be given in writing by
any party to the others):
If to the Company, to:
OEP Imaging Corporation
c/o One Equity Partners LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a required copy to:
Dechert
Page 20 of 34 Pages
0000 Xxxx Xxxxxxxx Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Polaroid, to:
Polaroid Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a required copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
and a required copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
All such notices shall be deemed to have been duly given: when delivered by
hand, if personally delivered; four Business Days after being deposited in the
mail, postage prepaid, if mailed; when confirmation of transmission is received,
if faxed; and on the next Business Day, if timely delivered to a reputable
courier guaranteeing overnight delivery.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to principles of conflicts of law, except to the extent that Delaware law
shall be mandatorily applicable.
8.6 Headings. The headings preceding the text of the sections and
subsections of this Agreement are for convenience of reference only and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
8.7 Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
Page 21 of 34 Pages
8.8 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
8.9 Remedies. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The parties
agree that the provisions of this Agreement shall be specifically enforceable,
it being agreed by the parties that the remedy at law, including monetary
damages, for breach of such provision will be inadequate compensation for any
loss and that any defense in any action for specific performance that a remedy
at law would be adequate is waived.
8.10 Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
8.11 Third Party Beneficiary. Until the confirmation of Polaroid's
plan of reorganization or plan of liquidation under the Bankruptcy Code, the
Official Committee of Unsecured Creditors of Polaroid appointed in connection
with the current bankruptcy proceedings of Polaroid shall be deemed to be a
third party beneficiary of this Agreement.
[Signature Page Follows]
Page 22 of 34 Pages
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OEP IMAGING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
POLAROID CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
The undersigned is executing this
Agreement solely for the purposes
of indicating its agreement to Sections 7.1, 8.1
and 8.2, and for no other purpose:
ONE EQUITY PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
[Signature Page to Registration Rights Agreement]
