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Exhibit (4e)
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REGISTRATION RIGHTS AGREEMENT
by and among
RUSSELL CORPORATION,
and
BENJAMIN RUSSELL, BAUMGARDNER FAMILY PARTNERSHIP, LTD.,
GWALTNEY INVESTMENT, LTD., GWALTNEY-BAIRD INVESTMENTS, LTD.,
GWALTNEY FAMILY FOUNDATION, INC., CALISON FOUNDATION AND
BAUMGARDNER FAMILY CHARITABLE REMAINDER TRUST
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Dated as of January 31, 2005
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TABLE OF CONTENTS
<TABLE>
<S>
<C>
1. Certain
Definitions......................................................
1
2. Registration of Common
Stock............................................. 3
3. Holdback
Agreements......................................................
5
4. Piggyback
Registration...................................................
6
5. Registration
Procedures..................................................
8
6. Registration
Expenses.................................................... 11
7.
Indemnification..........................................................
12
8. Participation in Underwritten
Registrations.............................. 14
9. Rule
144.................................................................
14
10.
Standstill...............................................................
14
11.
Voting...................................................................
15
12. Waiver of Dissenter's
Rights............................................. 16
13.
Miscellaneous............................................................
16
</TABLE>
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REGISTRATION RIGHTS AGREEMENT dated as of January 31, 2005
among
Russell Corporation, an Alabama corporation
(the "Company"), and Benjamin
Russell, an individual residing in Alabama,
Calison Foundation, an Alabama trust
(the "Foundation"), Baumgardner Family
Charitable Remainder Trust, an Alabama
trust (the "Baumgardner Trust), Baumgardner
Family Partnership, Ltd., an Alabama
limited partnership, Gwaltney Investment,
Ltd., an Alabama limited partnership,
Gwaltney-Baird Investments, Ltd., an
Alabama limited partnership, and Gwaltney
Family Foundation, Inc., an Alabama
corporation (each a "Stockholder" and
collectively, the "Stockholders"). Except
for the Foundation and the Baumgardner
Trust, each of the Stockholders was a
remainder beneficiary of the trust (the
"Trust") that was created under the will of
Benjamin C. Russell (the "Russell
Will"). Under the terms of the Russell
Will, as a result of the death of the
sole life income beneficiary of the Trust,
the Trust is being terminated, and
the corpus of the Trust will be distributed
upon receipt of all necessary
approvals.
In consideration of the mutual covenants and agreements herein
contained and other good and valid
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement,
the
following terms shall have the following
meanings:
"Affiliate" of any Person means any other Person which directly,
or
indirectly through one or more
intermediaries, controls, or is controlled by, or
is under common control with, such Person.
The term "control" (including the
terms "controlled by" and "under common
control with") as used with respect to
any Person means the possession, directly
or indirectly, of the power to direct
or cause the direction of the management
and policies of such Person, whether
through the ownership of voting securities,
by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including
all
amendments, modifications and supplements
and any exhibits or schedules to any
of the foregoing, and shall refer to this
Registration Rights Agreement as the
same may be in effect at the time such
reference becomes operative.
"Common Stock" means common stock, par value $.01 per share, of
the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, sole proprietorship,
partnership,
limited liability company, joint venture,
trust, incorporated organization,
association, corporation, institution,
public benefit corporation, government
(whether federal, state, county, city,
municipal or otherwise, including,
without limitation, any instrumentality,
division, agency, body or department
thereof) or any other entity.
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"Prospectus" means the prospectus or prospectuses included in
any
Registration Statement, as amended or
supplemented by any prospectus supplement
with respect to the terms of the offering
of any portion of the Registrable
Common Stock covered by such Registration
Statement and by all other amendments
and supplements to the prospectus,
including post-effective amendments and all
material incorporated by reference in such
prospectus or prospectuses.
"Registrable Common Stock" means the 3,021,852 shares of Common
Stock
beneficially owned by the Stockholders on
the date of this Agreement; provided,
however, that such shares shall cease to be
Registrable Common Stock when (i) a
registration statement registering such
shares of Registrable Common Stock under
the Securities Act has been declared or
becomes effective and such shares of
Registrable Common Stock have been sold or
otherwise transferred pursuant to
such effective registration statement; (ii)
such shares of Registrable Common
Stock are sold pursuant to Rule 144 under
circumstances in which any legend
borne by such shares of Registrable Common
Stock relating to restrictions on the
transferability thereof, under the
Securities Act or otherwise, is removed by
the Company, or such shares of Registrable
Common Stock are eligible to be sold
pursuant to paragraph (k) of Rule 144; or
(iii) such shares of Registrable
Common Stock shall cease to be outstanding.
For the avoidance of doubt,
Registrable Common Stock shall include the
shares of common stock of Russell
Delaware into which the Common Stock owned
by the Stockholders is convertible
immediately following the
Reincorporation.
"Registration Statement" means any registration statement of
the
Company which covers any of the Registrable
Common Stock pursuant to the
provisions of this Agreement, including the
Prospectus, amendments and
supplements to such Registration Statement,
including post-effective amendments,
all exhibits and all materials incorporated
by reference in such Registration
Statement.
"Reincorporation" means the proposed reincorporation of the
Company
from Alabama to Delaware by merging the
Company into a wholly owned subsidiary
incorporated in Delaware (Russell
Delaware), as more fully set forth in the
Company's Definitive Proxy Statement filed
with the SEC on March 17, 2004.
"Russell Delaware" means a wholly owned subsidiary of the
Company
incorporated in Delaware which has been
organized in order to consummate the
Reincorporation.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"underwritten registration or underwritten offering" means a
registration in which securities of the
Company are sold to underwriters for
reoffering to the public.
2. REGISTRATION OF COMMON STOCK.
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(a) Right to Request Registration. Subject to Section 2(b) and
2(d)
below, at any time after the date hereof,
any Stockholder or Stockholders who
hold at least two million (2,000,000)
shares of Registrable Common Stock, or all
of the Registrable Common Stock if a lesser
number is then held by Stockholders
("Minimum Amount"), may request
registration under the Securities Act of not
less than the Minimum Amount ("Demand
Registration").
Within ten (10) days after receipt of any such request for a
Demand
Registration, the Company shall give
written notice of such request to all other
Stockholders that hold shares of
Registrable Common Stock and shall, subject to
the provisions of Section 2(c) hereof,
include in such registration all such
Registrable Common Stock with respect to
which the Company has received written
requests for inclusion therein within 15
days after the date of the Company's
notice.
(b) Number of Demand Registrations.
Subject to Sections 2(g) and 6(c) below, the Stockholders shall
be
entitled to request an aggregate of two (2)
Demand Registrations; provided that,
subject to Section 2(g) below, the first
Demand Registration must be requested
on or prior to the second anniversary of
the date of this Agreement, and the
second Demand Registration must be
requested within eighteen (18) months of the
initial effective date of the Registration
Statement in connection with the
first Demand Registration or the date of
the prospectus relating to an
underwritten takedown pursuant to Section
4(d); and further provided that if the
amount of time that the Company is required
to maintain the effectiveness of a
Registration Statement is extended pursuant
to Section 2(d), 3(b) or 5(k) herein
(the "Extension Period"), such eighteen
(18) month period shall be extended by
the Extension Period. If the Stockholders
fail to request the first Demand
Registration or an underwritten takedown
pursuant to Section 4(d) on or prior to
the second anniversary of the date of this
Agreement, the Stockholders will be
deemed to forfeit the Second Demand
Registration and the Piggyback Registration
rights set forth in Section 4 herein.
(c) Priority on Demand Registrations. If the Demand Registration is
an
underwritten offering and the managing
underwriters advise the Company or the
demanding Stockholders in writing that in
their opinion the number of shares of
Registrable Common Stock proposed to be
included in any such registration
exceeds the number of securities which can
be sold in such offering and/or the
number of shares of Registrable Common
Stock proposed to be included in any such
registration would adversely affect the
price per share of the Common Stock to
be sold in such offering, the Company shall
include in such registration only
the number of shares of Registrable Common
Stock which in the opinion of such
managing underwriters can be sold and/or
the number of shares of Registrable
Common Stock that would not adversely
affect the price per share of the Common
Stock. If the number of shares which can be
sold is less than the number of
shares of Registrable Common Stock for
which registration has been requested,
the amount of Registrable Common Stock to
be so sold shall be allocated first,
pro rata to the shares of Registrable
Common Stock requested to be registered by
the Stockholders (whether initially or
after the Company provides notice to the
Stockholders pursuant to Section 2(a)) and
then pro rata among the other holders
of Common Stock
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entitled and desiring to participate in
such registration. If the number of
shares which can be sold exceeds the number
of shares of Registrable Common
Stock proposed to be sold, such excess
shall be allocated among the other
holders of securities (who are not
Stockholders), if any, entitled and desiring
to participate in such registration, as the
Company shall determine.
(d) Restrictions on Demand Registrations. The Company shall not
be
obligated to effect more than one (1)
Demand Registration in any twelve (12)
month period. The Company may postpone for
up to sixty (60) days the filing or
the effectiveness of a Registration
Statement or suspend the effectiveness of a
Registration Statement for a period up to
sixty (60) days if, based on the good
faith judgment of the Company's board of
directors or a committee thereof, such
postponement or suspension is necessary in
order to avoid premature disclosure
of a matter that the board has determined
would not be in the best interest of
the Company to be disclosed at such time.
The Company shall provide written
notice to the Stockholders of (x) any
postponement of the filing or suspension
of the effectiveness of a Registration
Statement pursuant to this Section 2(d),
(y) the Company's decision to file or seek
effectiveness of such Registration
Statement following such postponement or
suspension, and (z) the effectiveness
of such Registration Statement. In the
event of any suspension of a Registration
Statement, the period that the Company
shall be required to keep such
Registration Statement effective shall be
extended by the period of the
suspension, and (if the suspended
Registration Statement is not the second
Demand Registration permitted under this
Agreement) the period in which the
Stockholders may request a second Demand
Registration pursuant to Section 2(b)
hereof shall automatically be extended by
the period of the suspension.
(e) Prepaid Variable Share Forward Contracts. Up to one million
(1,000,000) shares of Registrable Common
Stock in one Demand Registration may be
the subject of one or more prepaid variable
share forward purchase contracts
(the "Forward Shares"). The Stockholders
agree not to repurchase or otherwise
acquire more than 23% of any Forward
Shares.
(f) Selection of Underwriters. If any shares of Registrable
Common
Stock covered by a Demand Registration are
to be sold in an underwritten
offering, the Company shall have the right
to select the managing underwriter(s)
to administer the offering, subject to the
approval of Stockholders that are the
beneficial owner of a majority of the
shares of Registrable Common Stock to be
included in such underwritten offering,
which approval will not be unreasonably
withheld or delayed.
(g) Effective Period of Demand Registrations. After a
Registration
Statement filed pursuant to Section 2(a) of
this Agreement has become effective,
the Company shall use its reasonable best
efforts to keep such Registration
Statement effective for a period equal to
one year from the initial date on
which the SEC declares such Registration
Statement effective (subject to any
extension pursuant to Sections 2(d), 3(b)
or 5(k) herein, or if such
Registration Statement is not effective
during any period within such one year
period, such one year period shall be
extended by the number of days that the
Registration Statement is not effective),
or such shorter period which shall
terminate
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when all of the shares of Registrable
Common Stock covered by such Registration
Statement have been sold pursuant to such
Registration Statement or Rule 144
(the "Effectiveness Period"). If the
Company shall withdraw any Demand
Registration prior to the expiration of the
Effectiveness Period (a "Withdrawn
Registration Statement"), Stockholders that
continue to hold Registrable Common
Stock, which shares were covered by the
Withdrawn Registration Statement, shall
be entitled to an additional Demand
Registration and the Company shall use
reasonable best efforts to keep such
additional Demand Registration effective
for (x) the longer of (A) the remainder of
the Effectiveness Period of the
Withdrawn Registration Statement or (B)
three months, or (y) if earlier, until
the date on which all of the Registrable
Common Stock covered by such Demand
Registration has been sold. If the
Withdrawn Demand Registration was the first
Demand Registration under this Agreement,
then the period in which the
Stockholders may request (i) a first Demand
Registration (in replacement of such
Withdrawn Demand Registration) shall be
extended by the number of days elapsed
between the date that the Withdrawn
Registration Statement was requested by the
Stockholders and the date that the
Withdrawn Registration Statement was declared
effective, and (ii) a second Demand
Registration under this Agreement shall run
from the date of effectiveness of the
replacement Demand Registration. If the
Withdrawn Registration Statement was the
second Demand Registration under this
Agreement, then a request for an additional
Demand Registration in replacement
of such Withdrawn Registration Statement
must be made no later than the later of
(x) eighteen (18) months from the initial
effective date of the Withdrawn
Registration Statement, or (y) six (6)
months from the withdrawal of the
Withdrawn Registration Statement. The
Company shall reimburse the Stockholders
for all reasonable legal and other advisory
fees, not to exceed $30,000,
incurred by the Stockholders in connection
with the Withdrawn Registration
Statement, and any such reimbursable costs
shall be in addition to the amount of
the Reimbursement payable by the Company
pursuant to Section 6(c) hereof. Any
additional Demand Registration pursuant to
this paragraph otherwise shall be
subject to all of the provisions of this
Agreement.
3. HOLDBACK AGREEMENTS.
(a) In the case of an underwritten offering by the Stockholders
(which
includes any underwritten takedown off of a
shelf registration statement
otherwise permitted by this Agreement), the
Company agrees not to effect any
public sale or distribution of any of its
equity securities (other than any sale
or distribution in connection with any
merger, amalgamation, reorganization or
consolidation by the Company or any
Affiliate of the Company, or the acquisition
by the Company or an Affiliate of the
Company of shares or assets from any other
Person, or in connection with any employee
stock ownership or other benefit
plan) during the ninety (90) day period (or
such longer period that the managing
underwriters reasonably request) beginning
on the initial effective date of the
Registration Statement relating to a Demand
Registration, or the date of the
Prospectus relating to a Demand
Registration that is a shelf takedown, as
applicable, unless the underwriters
managing the offering agree to such sale or
distribution (the "Lock-up Period").
Notwithstanding the foregoing, if the
effectiveness of a Registration Statement
relating to a Demand Registration has
been suspended during the term of the
Lock-up Period, the Lock-up Period shall
be extended, for the number of
5
<PAGE>
days that the Registration Statement is not
effective, subject to the right of
the underwriters managing the offering to
permit sales, distributions or an
early release date.
(b) In the case of an underwritten offering by the Company
(which
includes any underwritten takedown off of a
shelf registration statement), each
Stockholder agrees not to sell or otherwise
transfer or dispose of any shares of
Registrable Common Stock (or other
securities) of the Company held by them
during the ninety (90) day period (or such
longer period that the managing
underwriters reasonably request) beginning
on the initial effective date of a
registration statement of the Company filed
under the Securities Act, or the
date of the Prospectus (not including a
preliminary Prospectus) relating to a
shelf takedown, as applicable, unless the
underwriters managing the offering
agree to such sale or distribution (a
"Stockholder Lock-up"). Such agreement
shall be in writing in form satisfactory to
the Company and the managing
underwriters. The Company may impose
stop-transfer instructions with respect to
the shares of Registrable Common Stock (or
other securities) subject to the
foregoing restriction until the end of the
Stockholder Lock-up. If a Stockholder
is required to enter into a Stockholder
Lock-up at a time when shares of
Registrable Common Stock are included in an
effective Registration Statement
relating to a Demand Registration, then the
period that the Company shall be
required to keep such Registration
Statement effective shall be extended by the
period of the Stockholder Lock-up.
4. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any offer or sale of
Common
Stock under the Securities Act, whether or
not for sale for its own account or
for the benefit of other security holders
of the Company, on any registration
form (other than Form S-4 or S-8 or other
successor forms or, except as provided
in Section 4(d) below, an omnibus shelf
registration statement on Form S-3)
which permits the inclusion of shares of
Registrable Common Stock, the Company
will promptly give each Stockholder that
holds shares of Registrable Common
Stock written notice of its intention (the
"Piggyback Notice"), which Piggyback
Notice shall specify the aggregate number
of shares of Common Stock to be
registered, the intended method of
disposition thereof and the Stockholder's
rights under this Section 4. Upon the
written request of any Stockholder made
within 10 days of the date of delivery of
the Piggyback Notice, the Company will
use its reasonable best efforts to effect
the registration under the Securities
Act of the offer and sale of all shares of
Registrable Common Stock which the
Company has been so requested to register
by the Stockholders (the "Piggyback
Registration"); provided, however, that (i)
if, any time after giving the
Piggyback Notice 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 effect such registration, the
Company shall give written notice of
such determination to each Stockholder that
requested inclusion in such
Piggyback Registration and, thereupon,
shall be relieved of its obligation to
register any offer and sale of shares of
Registrable Common Stock in connection
with such registration; and (ii) any
Stockholder requesting to be included in
such registration may elect, in writing at
least 10 days prior to the effective
date of the registration statement filed in
connection with such registration,
not to register the offer and sale of such
Stockholder's Registrable Common
Stock in connection with such registration.
The
6
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election by any of the Stockholders to
effect a Piggyback Registration (other
than in connection with an omnibus shelf
Registration Statement as set forth in
Section 4(d)) shall not count against the
maximum number of Demand Registrations
permissible under this Agreement as set
forth in Section 2(b).
(b) If the Piggyback Registration relates to an underwritten
public
offering, the Company shall so advise the
Stockholders as part of the Piggyback
Notice given pursuant to Section 4(a). In
such event, the right of any
Stockholder to participate in such
registration shall be conditioned upon such
Stockholder's participation in such
underwriting in accordance with the terms
and conditions thereof. The Company shall
have the right to select the managing
underwriter(s) for any underwritten
Piggyback Registration. All Stockholders
proposing to distribute their shares of
Registrable Common Stock through such
underwriting shall (together with the
Company) enter into an underwriting
agreement in customary form.
(c) If such proposed Piggyback Registration is an underwritten
offering
and the managing underwriters for such
offering advise the Company that the
securities requested to be included therein
exceeds the amount of securities
that can be sold in such offering (the
"Cut-back Notice"), any securities to be
sold by the Company or other holders of the
Company's securities initiating such
offering or otherwise contractually
entitled to be included in such offering
prior to the Stockholders shall have
priority over any shares of Registrable
Common Stock, and the number of shares to
be included by a Stockholder and other
holders of the Company's securities that
did not initiate the offering and not
having priority over the Stockholders in
such registration shall be reduced pro
rata. The Company shall provide the
Stockholders that have requested to be
included in such offering with a copy of
any written Cut-back Notice.
(d) A Stockholder or Stockholders may, upon complying with the
provisions of Sections 2(a) and 4(a),
include shares of Registrable Common Stock
in an omnibus shelf Registration Statement
on Form S-3, but only in order to
effect up to two (2) offerings of
Registrable Common Stock in underwritten
takedown(s) from such Registration
Statement. Any such underwritten takedown
shall count against the maximum number of
Demand Registrations permissible under
this Agreement as set forth in Section
2(b). Except as provided in this Section
4(d), the Stockholders shall have no
Piggyback Registration rights under this
Agreement with respect to the Company's
registration or proposed registration of
the offer or sale of Common Stock through
an omnibus shelf registration on Form
S-3. For the avoidance of doubt: (i) one or
more Stockholders may resell their
Registrable Securities pursuant to an
omnibus shelf registration statement only
if done so pursuant to an underwritten
takedown by such Stockholder(s) from such
shelf registration, and not in open market
sales from time to time; and (ii) no
Stockholder shall have the right to
piggyback onto any underwritten takedown by
