EX-10.8
Registration Rights Agreement
EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
CSA ACQUISITION CORP.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF DECEMBER 23, 2004
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23,
2004 (the
"Agreement"), by and among CSA Acquisition Corp., a Delaware
corporation (the
"Company") and Cypress Merchant Banking Partners II L.P., a
Delaware limited
partnership ("Cypress Onshore"), Cypress Merchant B II C.V., a
limited
partnership formed under the laws of The Netherlands ("Cypress
Offshore"), 55th
Street Partners II L.P., a Delaware limited partnership ("55th
Street"), Cypress
Side-By-Side LLC, a Delaware limited liability company
("Side-by-Side" and,
together with Cypress Onshore, Cypress Offshore and 55th Street,
"Cypress"), GS
Capital Partners 2000, L.P. ("Goldman Onshore"), GS Capital
Partners 2000
Offshore, L.P. ("Goldman Offshore"), GS Capital Partners 2000 GmbH
& Co.
Beteiligungs KG ("Goldman KG"), GS Capital Partners 2000 Employee
Fund, L.P.
("Goldman Employee") and Goldman Sachs Direct Investment Fund 2000,
L.P.
("Goldman Direct" and, together with Goldman Onshore, Goldman
Offshore, Goldman
KG and Goldman Employee, "Goldman"; Goldman and Cypress are
referred to herein
as the "Sponsor Stockholders"), the Management Stockholders (as
defined in the
Stockholders Agreement) and the Director Stockholders (as defined
in the
Stockholders Agreement) (the Sponsor Stockholders, Management
Stockholders and
Director Stockholders, collectively, the "Stockholders").
RECITALS
WHEREAS, the Company has entered into that certain Stock
Purchase
Agreement, dated as of September 16, 2004 and amended as of
December 3, 2004
(the "Purchase Agreement"), by and among Cooper Tire & Rubber
Company, a
Delaware corporation ("Cooper"), Cooper Tyre & Rubber Company
UK Limited, a
company organized under the laws of England and Wales ("Cooper UK",
and,
together with Cooper, the "Sellers") and the Company, pursuant to
which the
Company will purchase equity interests held by the Sellers in the
Sold Companies
(as defined in the Purchase Agreement);
WHEREAS, the Company and each Stockholder have entered
into a
Subscription Agreement and a Stockholders Agreement pursuant to
which the
Company will issue and sell, and the Stockholders will purchase,
shares of
Common Stock (as defined below);
WHEREAS, the Company desires to provide to the
Stockholders 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.
NOW, THEREFORE, in consideration of the foregoing
recitals and of the
mutual promises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement,
the following
capitalized terms shall have the following respective meanings:
"Common Stock" means the common stock, par value $0.01
per share, of
the Company and any securities issued in respect thereof, or
in
substitution therefor, in connection with any stock split,
dividend or
combination, or any reclassification, recapitalization,
merger,
consolidation, exchange or other similar reorganization.
"Demand Party" means one or more Sponsor Holders;
provided that to be
a Demand Party such Holder or Holders must either individually
or in the
aggregate own at least five percent (5%) of the total number
of Registrable
Securities.
"Exchange Act" means 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" means each of the Stockholders and any Permitted
Transferee
of such Stockholder who or which holds Registrable Securities
(including
Sponsor Holders), provided, in the case of a Permitted
Transferee, that
such Permitted Transferee agrees in writing to be bound by the
provisions
of this Agreement.
"IPO" means the initial public offering of Common Stock
pursuant to an
effective registration statement under the Securities Act.
"IPO Date" means the first date of the issuance of Common
Stock in an
IPO.
"Permitted Transferee" as to any Stockholder, has the
meaning given to
such term in the Stockholders Agreement.
"Person" means any individual, corporation, limited
liability company,
limited or general partnership, joint venture, association,
joint-stock
company, trust, unincorporated organization, government or any
agency or
political subdivisions thereof or any group comprised of two
or more of the
foregoing.
"Qualified Sale Date" means the date upon which Cypress
and Goldman
have sold to the public pursuant to one or more effective
registration
statements under the Securities Act (or pursuant to Rule 144
(or any
successor provision) under the Securities Act) at least 25% of
the
outstanding shares of Common Stock (the number of shares
representing such
percentage to be adjusted following the date hereof to reflect
any stock
dividend or stock split or other distribution,
recapitalization,
reclassification or similar event following the date hereof)
held by the
Sponsor Stockholders in the aggregate on the date hereof.
"Registrable Securities" means any Common Stock held at
any time by
the Stockholders (including shares of Common Stock issued upon
exercise of
options or issued to Management Stockholders and Director
Stockholders
pursuant to the Original Subscription Agreements (as defined
in the
Stockholders Agreement) following the date hereof), and any
Common Stock
which may be issued or distributed in respect thereof by way
of stock
dividend or stock split or other distribution,
recapitalization,
reclassification or similar event following the date hereof.
Any particular
Registrable Securities that are
3
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 transferred to the public
pursuant to Rule
144 (or any successor provision) under the Securities Act, or
(iii) such
securities shall have ceased to be outstanding.
"Registration Expenses" means 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 NASD
conduct rule
2720, 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 4.1(a) 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 7.1 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" means 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" means the Securities and Exchange Commission or any
other
federal agency at the time administering the Securities Act or
the Exchange
Act.
"Sponsor Holder" means each of the Sponsor Stockholders
and any other
Permitted Transferee of such Sponsor Stockholder) who or which
holds
Registrable Securities and is a direct or indirect transferee
of a Sponsor
Stockholder, provided such Permitted Transferee agrees in
writing to be
bound by the provisions of this Agreement.
"Stockholders Agreement" means the Stockholders
Agreement, dated as of
the date hereof, by and among the Company, Cypress, Goldman,
the Management
4
Stockholders and the Director Stockholders, as it may be
amended,
supplemented or restated from time to time.
ARTICLE II
INCIDENTAL REGISTRATIONS
Section 2.1. Right to Include Registrable Securities. (a)
If the
Company at any time after the IPO Date (or in the case of a
Management
Stockholder, the Qualified Sale Date) proposes to register its
Common Stock
under the Securities Act (other than a registration filed by the
Company in
connection with the IPO or a registration statement 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
Registrable Securities for sale to the public under the Securities
Act, it will,
at each such time, give prompt written notice to all eligible
Holders of
Registrable Securities of its intention to do so and of such
Holders' rights
under this Article II. Upon the written request of any such Holder
made within
fifteen (15) days after the receipt of any such notice (which
request shall
specify the Registrable Securities intended to be disposed of by
such Holder),
the Company will use its reasonable best efforts to effect the
registration
under the Securities Act of all 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 Registrable Securities so to be
registered;
provided that (a) 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 Registrable
Securities and,
thereupon, shall be relieved of its obligation to register any
Registrable
Securities in connection with such registration (but not from its
obligation to
pay the Registration Expenses in connection therewith), and (b) if
such
registration involves an underwritten offering, all Holders of
Registrable
Securities requesting to be included in the Company's registration
must sell
their 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 2.1 involves an
underwritten
public offering, any Holder of 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.
(b) For the avoidance of doubt, no Management Stockholder
or Director
Stockholder (or Permitted Transferee thereof) will have the right
to require the
Company to effect the registration under the Securities Act of
Registrable
Securities of such Management Stockholder or Director Stockholder
(or Permitted
Transferee thereof) pursuant to this Section 2.1 prior to the
Qualified Sale
Date.
Section 2.2. Expenses. The Company will pay all
Registration Expenses
in connection with each registration of Registrable Securities
pursuant to this
Article II.
5
Section 2.3. Priority in Incidental Registrations. If a
registration
pursuant to this Article II 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 (other than the Registrable
Securities), then the
Company will include in such registration (i) first, 100% of the
securities the
Company proposes to sell, (ii) second, to the extent of the number
of
Registrable Securities requested to be included in such
registration pursuant to
Article III which, in the opinion of such managing underwriter, can
be sold
without having the adverse effect referred to above, the number of
Registrable
Securities which the Holders have requested to be included in such
registration,
such amount to be allocated pro rata among all requesting Holders
pursuant to
Article III 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 will
be
reallocated among the remaining requesting Holders in like manner)
and (iii)
third, to the extent of the number of Registrable Securities
requested to be
included in such registration pursuant to this Article II which, in
the opinion
of such managing underwriter, can be sold without having the
adverse effect
referred to above, the number of Registrable Securities which the
Holders 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 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
will be reallocated among the remaining requesting Holders in like
manner). The
priority of registration of any shares being registered by the
Company pursuant
to the exercise of (a) "demand registration rights" granted
following the date
of this Agreement to holders of shares of Common Stock other than
the Sponsor
Stockholders or the Management Stockholders and Director
Stockholders relative
to other shares being registered pursuant to this Article II shall
be on the
basis provided in clause (ii) above and (b) "piggyback registration
rights"
granted following the date of this Agreement to holders of shares
of Common
Stock other than the Sponsor Stockholders or the Management
Stockholders and
Director Stockholders relative to other shares being registered
pursuant to this
Article II shall be pro rata with such shares on the basis provided
in clause
(iii) above.
ARTICLE III
REGISTRATION ON REQUEST
Section 3.1. Request by the Demand Party. (a) At any
time, after the
IPO Date, 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 Registrable
Securities, and
thereupon will, as expeditiously as possible, use its reasonable
best efforts to
effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company
has been so
requested to register by the Demand Party; and
6
(ii) all other Registrable Securities of the same
class or series
as to which the Company has been requested by 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 fifteen
(15) days after
the giving of such written notice by the Company (which
notice 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 in accordance with the timing specified in Section
4.1(a)(i).
Notwithstanding the foregoing, the Company shall not be obligated
to file a
registration statement relating to any registration request under
this Section
3.1 within a period of 180 days after the IPO Date or ninety (90)
days after the
effective date of any other registration statement relating to any
registration
request under this Section 3.1 or relating to any registration
effected under
Article II unless Holders of a majority of the shares of
Registrable Securities
held by Sponsor Holders consent thereto in writing. In the case of
a Sponsor
Holder requesting registration pursuant to clause (ii) above, such
Sponsor
Holder shall have the option to specify whether the Registrable
Securities such
Sponsor Holder wishes to include in such registration are to be
included
pursuant to this Article III or pursuant to Article II. In the
absence of such a
specification, the Registrable Securities requested to be included
will be
included on the basis set forth in Article II.
(b) For the avoidance of doubt, no Management
Stockholders or Director
Stockholders (or Permitted Transferee thereof) will have the right
to require
the Company to effect the registration under the Securities Act of
Registrable
Securities of such Management Stockholder or Director Stockholders
(or Permitted
Transferee thereof) pursuant to this Section 3.1 (it being
understood that such
rights may be exercised pursuant to Article II and only after the
Qualified Sale
Date).
Section 3.2. Registration Statement Form. If any
registration
requested pursuant to this Article III 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.
Section 3.3. Expenses. The Company will pay all
Registration Expenses
in connection with registrations of each class or series of
Registrable
Securities pursuant to this Article III.
Section 3.4. Effective Registration Statement. A
registration
requested pursuant to this Article III will not be deemed to have
been effected
unless it has become effective and remains effective for the period
provided in
Section 4.1(a)(ii); 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.
7
Section 3.5. Selection of Underwriters. If a requested
registration
pursuant to this Article III 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 pursuant to
Article III 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.
Section 3.6. Priority in Requested Registrations. (a) If
a requested
registration pursuant to this Article III 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 or
which are Registrable Securities proposed to be sold pursuant to
Article II)
exceeds the number which can be sold in such offering, the Company
will first
include in such registration only the Registrable Securities of the
Holders
requested to be included in such registration pursuant to this
Article III. In
the event that the number of Registrable Securities of the Holders
requested to
be included in such registration pursuant to this Article III
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 such requesting Holders pursuant to
this Article
III 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).
(b) 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,
for its own
account or for the account of others (including pursuant to Article
II) to the
number of securities that, in the opinion of the underwriter, can
be sold.
Section 3.7. Limitation on Registration on Request.
Notwithstanding
anything in this Article III to the contrary, the Company shall not
be obligated
to take any action to effect any registration pursuant to this
Article III if
the Company has previously effected a number of registrations upon
the request
of a Sponsor Stockholder pursuant to this Article III equaling or
exceeding, in
accordance with Section 3.4 above, (a) five (5) registrations in
the aggregate,
in the case of Cypress and its Permitted Transferees and (b) five
(5)
registrations in the aggregate, in the case of Goldman and its
Permitted
Transferees. For purposes of the foregoing, a Sponsor Holder
requesting
registration of Registrable Securities pursuant to Section
3.1(a)(ii) which
chooses to include such shares pursuant to this Article III shall
be treated as
having made a request pursuant to this Article III.
Section 3.8. Postponements in Requested Registrations.
(a) If the
Company shall at any time furnish to the Holders a certificate
signed by its
chairman of the board, chief executive officer, president or any
other of its
authorized officers stating that the filing of a registration
statement would
require the disclosure of material information the disclosure of
which would, in
the good faith judgment of the Board of Directors of the Company,
have a
material adverse effect on the business, operations or prospects of
the Company,
the Company may postpone the filing (but not the preparation) of a
registration
statement required
8
by this Article III for up to forty-five (45) days and (b) if the
Board of
Directors of the Company determines in its good faith judgment,
that the
registration and offering otherwise required by this Article III
would have an
adverse effect on a then contemplated public offering of the
Company's Common
Stock, the Company may postpone the filing (but not the
preparation) of a
registration statement required by this Article III, during the
period starting
with the thirtieth (30th) day immediately preceding the date of the
anticipated
filing of, and ending on a date ninety (90) days (or such shorter
period as the
managing underwriter may permit) following the effective date of,
the
registration statement relating to such other public offering;
provided that the
Company shall at all times in good faith use its reasonable best
efforts to
cause any registration statement required by this Article III to be
filed as
soon as possible and; provided, further, that the Company shall not
be permitted
to postpone registration pursuant to this Section 3.8 more than
once in any
360-day period. The Company shall promptly give the Holders
requesting
registration thereof pursuant to this Article III written notice of
any
postponement made in accordance with the preceding sentence. If the
Company
gives the Holders such a notice, the Holders shall have the right,
within
fifteen (15) days after receipt thereof, to withdraw their request
in which
case, such request will not be counted for purposes of Section 3.7.
ARTICLE IV
REGISTRATION PROCEDURES
Section 4.1. Procedures. (a) If and whenever the Company
is required
to use its reasonable 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 ninety (90)
days after the
end of the period within which a request for registration
may be given
to the Company pursuant to Article II or III, 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 as promptly as practicable, provided,
however,
that the Company may discontinue any registration of its
securities
which is being effected pursuant to Article II 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 180
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
Article VII
hereof by the Holders of the Registrable Securities
covered by such
registration statement to
9
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
|
