Exhibit 4.e
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 and
General Counsel
XXXXXXX (PARENT) HOLDINGS INC.
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title:
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