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EXHIBIT 10.11
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 31, 2000 (this
"Agreement") between ADVANCED THERMAL TECHNOLOGIES, INC., a Delaware corporation
(the "Company"), and B/E AEROSPACE, INC., a Delaware corporation (the
"Stockholder").
WHEREAS, the Stockholder owns all of the issued and
outstanding shares of the capital stock of the Company;
WHEREAS, the Company intends to conduct an initial public
offering (the "Public Offering") of shares of its Class A common stock; and
WHEREAS, the Company and the Stockholder have agreed to enter
into this Agreement prior to the completion of the Public Offering.
NOW, THEREFORE, in consideration of the foregoing and the
mutual convenants and agreements herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Certain Definitions. The following terms, as used
herein, have the following meanings:
"Affiliate" of a Holder means a Person who controls, is
controlled by or is under common control with such Holder or the spouse
or children (or a trust exclusively for the benefit of a spouse and/or
children) of such Holder or, in the case of a Holder that is a
partnership, its partners.
"Agreement" has the meaning set forth in the preamble to this
agreement.
"Class A Common Stock" means the common stock of the Company,
$0.01 par value per share, designated Class A.
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"Class A Shares" means any shares of the Class A Common Stock
issued upon the conversion of any Class B Common Stock in accordance
with the Amended and Restated Certificate of Incorporation of the
Company, as amended.
"Class B Common Stock" means the common stock of the Company,
$0.01 par value per share, designated Class B.
"Class B Shares" means the 10,000,000 shares of the Class B
Common Stock owned by the Stockholder as of the date of this Agreement.
"Common Stock" means all classes of the common stock of the
Company.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, as the same shall be in effect
at the time.
"Holder" means the Stockholder or any assignee thereof to whom
the rights under this Agreement are assigned in accordance with the
provisions of Section 12.
"Initiating Holders" has the meaning set forth in Section
2(a).
"Minimum Demand Amount" has the meaning set forth in Section
2(a).
"Person" means an individual, corporation, partnership,
limited partnership, syndicate, person (including, without limitation,
a "person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government.
"PORTAL" has the meaning set forth in Section 8(b).
"register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement
or document.
"Registrable Stock" means (a) the Class B Shares, (b) the
Class A Shares, (c) any other shares of Class B Common Stock or Class A
Common Stock which the Holders may hold from time to time, and (d) any
Common Stock issued or issuable in respect of Common Stock referred to
in clauses (a), (b) or (c) or this clause (d) by way of a stock
dividend or stock split or in connection with a combination or
subdivision of
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shares, reclassification, recapitalization, merger, consolidation or
other reorganization of the Company. For purposes of this Agreement,
any Registrable Stock shall cease to be Registrable Stock when (1) a
registration statement covering such Registrable Stock has been
declared effective and such Registrable Stock has been disposed of
pursuant to such effective registration statement, (2) such Registrable
Stock is sold by a Person in a transaction in which the rights under
the provisions of this Agreement are not assigned or (3) such
Registrable Stock may be sold pursuant to Rule 144(k) (or any similar
provision then in force under the Securities Act) without registration
under the Securities Act.
"Registration Date" means the date upon which a registration
statement pursuant to which the Company shall have initially registered
shares of the Class A Common Stock under the Securities Act for sale to
the public shall have been declared effective.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute, as the same shall be in effect at the
time.
"Stockholder" has the meaning set forth in the preamble to
this Agreement.
2. Demand for Registration.
(a) The Holders of Registrable Stock (the "Initiating
Holders") may demand in a written notice that the Company file a
registration statement under the Securities Act (or a similar document
pursuant to any other statute then in effect corresponding to the
Securities Act) covering the registration of any or all Registrable
Stock held by such Initiating Holders in the manner specified in such
notice. Holders of Registrable Stock may initiate any number of demands
for registration under this Section 2(a), provided that the amount of
Registrable Stock included in each such registration shall be equal to
at least 500,000 shares of Common Stock (the "Minimum Demand Amount")
and at least 1,200,000 shares of Registrable Stock are outstanding
immediately prior to such demand. Following receipt of any notice under
this Section 2 the Company shall (x) within twenty (20) days notify all
other Holders of such request in writing and (y) use its best efforts
to cause to be registered under the Securities Act, subject to the
proviso of the immediately preceding sentence, all Registrable Stock
that the Initiating Holders and such other Holders have demanded,
within ten (10) days after the Company has given such notice, be
registered in accordance with the manner of disposition specified in
such notice by the Initiating Holders. Notwithstanding anything to the
contrary in this Section 2, if the managing underwriter (or, in the
case of a non-underwritten offering, the Company) has informed the
Holders of Registrable Stock
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requesting inclusion in such offering (and the Company in the case of
an underwritten offering) that in such underwriter's opinion (or, in
the case of a non-underwritten offering, the opinion of the Company)
the total number of securities which the Holders of Registrable Stock
and any other Persons desiring to participate in such registration
intend to include in such offering is such as could materially and
adversely affect the success of such offering, including the price at
which such securities can be sold, then the Company will be required to
include in such registration only the amount of securities which it is
so advised (or, in the case of a non-underwritten offering, that it
reasonably determines) should be included in such registration and in
such event securities shall be registered in the offering in the
following order of priority: (i) first, the securities which have been
requested to be included in such registration by the Holders of
Registrable Stock pursuant to this Agreement (pro rata based upon the
aggregate amount of securities then held); (ii) second, provided that
no securities of such Persons referred to in the immediately preceding
clause (i) have been excluded from such registration, the securities of
other Persons entitled to exercise participatory registration rights
pursuant to contractual commitments of the Company (pro rata based upon
the aggregate amount of securities then held) and are not included in
the immediately preceding clause (i), and (iii) third, provided that no
securities of any other Person have been excluded from such
registration, the securities which the Company proposes to register.
(b) If the Initiating Holders intend to have the
Registrable Stock distributed by means of an underwritten offering, the
Company shall include such information in the written notice referred
to in clause (x) of Section 2(a). In such event, the right of any
Holder to include its Registrable Stock in such registration shall be
conditioned upon such Holder's participation in such underwritten
offering and the inclusion of such Holder's Registrable Stock in the
underwritten offering (unless otherwise mutually agreed by a majority
in voting interest of the Initiating Holders and such Holder) on the
terms provided below. All Holders proposing to distribute Registrable
Stock through such underwritten offering shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters. Such underwriter or underwriters shall be selected by a
majority in voting interest of the Initiating Holders and shall be
approved by the Company, which approval shall not be unreasonably
withheld, provided that (i) all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the benefit
of such Holders of Registrable Stock, (ii) any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations
of such Holders of Registrable Stock, and (iii) no Holder shall be
required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, the Registrable Stock
of such Holder
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and such Holder's intended method of distribution and any other
representations required by law or reasonably required by the
underwriter or the Company. If any Holder of Registrable Stock
disapproves of the terms of the underwriting, such Holder may elect to
withdraw all its Registrable Stock by written notice to the Company,
the managing underwriter and the Initiating Holders. The Registrable
Stock so withdrawn shall also be withdrawn from registration. If, as a
result of such withdrawal, the amount of Registrable Stock to be
included in the offering is less than the Minimum Demand Amount, the
Company shall not be required to proceed with such offering.
(c) Notwithstanding any provision of this Agreement to
the contrary, the Company shall not be required to effect a
registration pursuant to this Section 2 during the period starting with
the date of filing by the Company of, and ending on a date ninety (90)
days following the effective date of, a registration statement
pertaining to a public offering of securities (x) for the account of
the Company or (y) on behalf of selling stockholders under any other
registration rights agreement, which, in the case of each of (x) and
(y), the Holders have been entitled to join pursuant to Section 3 of
this Agreement; provided that the Company shall actively employ best
efforts to cause such registration statement to become effective as
soon as possible.
3. Participatory Registration.
(a) If at any time the Company determines that it shall
file a registration statement under the Securities Act (other than a
registration statement on Form S-4 or S-8 or filed in connection with
an exchange offer or an offering of securities solely to the Company's
existing stockholders) on any form that would also permit the
registration of the Registrable Stock and such filing is to be on its
behalf and/or on behalf of selling holders of its securities for the
general registration of its Common Stock to be sold for cash, the
Company shall each such time promptly give each Holder written notice
of such determination setting forth the date on which the Company
proposes to file such registration statement, which date shall be no
earlier than thirty (30) days from the date of such notice, and
advising each Holder of its right to have Registrable Stock included in
such registration. Upon the written request of any Holder received by
the Company no later than fifteen (15) days after the date of receipt
of the Company's notice, the Company shall use its best efforts to
cause to be registered under the Securities Act all of the Registrable
Stock that each such Holder has so requested in such written request to
be registered.
(b) In a registration pursuant to Section 3(a) hereof, if
the managing underwriter (or, in the case of a non-underwritten
offering, the Company) has informed the Holders of Registrable Stock
requesting inclusion in such offering (and the Company in the case of
an underwritten offering) that in such underwriter's opinion
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(or, in the case of a non-underwritten offering, the opinion of the
Company) the total number of securities which the Company, the Holders
of Registrable Stock and any other Persons desiring to participate in
such registration intend to include in such offering is such as could
materially and adversely affect the success of such offering, including
the price at which such securities can be sold, then the Company will
be required to include in such registration only the amount of
securities which it is so advised (or, in the case of a
non-underwritten offering, that it reasonably determines) should be
included in such registration. In such event: (1) in cases where the
registration for sale of securities is initiated by the Company in
order to sell securities for the Company's own account, securities
shall be registered in such offering in the following order of
priority: (i) first, the securities which the Company proposes to
register, (ii) second, provided that no securities sought to be
included by the Company have been excluded from such registration, the
securities which have been requested to be included in such
registration by the Holders of Registrable Stock pursuant to this
Agreement (pro rata based upon the aggregate amount of securities then
held), and (iii) third, provided that no securities sought to be
included by the Company or the Holders of Registrable Stock have been
excluded from such registration, the securities of other Persons
entitled to exercise participatory registration rights pursuant to
contractual commitments of the Company (pro rata based upon the
aggregate amount of securities then held) and are not included in the
immediately preceding clause (ii); and (2) in cases where the
registration for sale of securities is initiated by any other Person
(other than a Holder), securities shall be registered in such offering
in the following order of priority: (i) first, the securities of any
Person whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Company is the basis for the
registration, (ii) second, provided that no securities of such Person
referred to in the immediately preceding clause (i) have been excluded
from such registration, the securities which have been requested to be
included in such registration by the Holders of Registrable Stock
pursuant to this Agreement, (iii) third, provided that no securities of
such Persons referred to in the immediately preceding clause (i) or
(ii) have been excluded from such registration, the securities of other
Persons entitled to exercise participatory registration rights pursuant
to contractual commitments of the Company (pro rata based upon the
aggregate amount of securities then held) and are not included in the
immediately preceding clause (ii) and (iv) fourth, provided that no
securities of any other Person have been excluded from such
registration, the securities which the Company proposes to register.
4. Obligations of the Company. Whenever required under
this Agreement to use its best efforts to effect the registration of any
Registrable Stock, the Company shall, as expeditiously as possible:
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(a) prepare and file with the SEC a registration
statement signed, pursuant to Section 6(a) of the Securities Act, by
the officers and directors of the Company with respect to such
Registrable Stock and use its best efforts to cause such registration
statement to become and remain effective for the period of the
distribution contemplated thereby determined as hereinafter provided;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement signed, pursuant to Section
6(a) of the Securities Act, by the officers and directors of the
Company and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Stock covered by such
registration statement;
(c) furnish to the Holders such numbers of copies of the
registration statement and the prospectus included therein (including
each preliminary prospectus and any amendments or supplements thereto
in conformity with the requirements of the Securities Act) and such
other documents and information as they may reasonably request;
(d) use its best efforts to register or qualify the
Registrable Stock covered by such registration statement under such
other securities or blue sky laws of such jurisdiction within the
United States and Puerto Rico as shall be reasonably appropriate for
the distribution of the Registrable Stock covered by the registration
statement; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business in, subject itself to general taxation by or to file a general
consent to service of process in any jurisdiction wherein it would not
but for the requirements of this paragraph (d) be obligated to do so;
and provided further that the Company shall not be required to qualify
such Registrable Stock in any jurisdiction in which the securities
regulatory authority requires that any Holder submit any shares of its
Registrable Stock to the terms, provisions and restrictions of any
escrow, lockup or similar agreement(s) for consent to sell Registrable
Stock in such jurisdiction unless such Holder agrees to do so;
(e) furnish, at least five business days before filing a
registration statement, to counsel designated by the Holders of
Registrable Stock covered by the registration statement, a copy of the
registration statement proposed to be filed and the prospectus relating
thereto or any amendments or supplements relating to such a
registration statement or prospectus (it being understood that such
five-business-day period need not apply to successive drafts of the
same document proposed to be filed so long as such successive drafts
are supplied to such counsel in advance of the proposed filing by a
period of time that is reasonable under the circumstances);
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(f) promptly notify each Holder for whom such Registrable
Stock is covered by such registration statement, 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, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, and at the request of any such Holder promptly
prepare and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(g) use best efforts to furnish, at the request of any
Holder demanding registration of Registrable Stock pursuant to this
Agreement, if the method of distribution is by means of an
underwriting, on the date that the shares of Registrable Stock are
delivered to the underwriters for sale pursuant to such registration,
or if such Registrable Stock is not being sold through underwriters, on
the date that the registration statement with respect to such shares of
Registrable Stock becomes effective, (i) a signed opinion, dated such
date, of the independent legal counsel representing the Company for the
purpose of such registration, addressed to the underwriters, if any,
and if such Registrable Stock is not being sold through underwriters,
then to the Holders making such request, as to such matters as such
underwriters or the Holders holding a majority of the Registrable Stock
included in such registration, as the case may be, may reasonably
request and as would be customary in such a transaction; and (ii)
letters dated such date and the date the offering is priced from the
independent certified public accountants of the Company, addressed to
the underwriters, if any, and if such Registrable Stock is not being
sold through underwriters, then to the Holders making such request and,
if such accountants refuse to deliver such letters to such Holders,
then to the Company (A) stating that they are independent certified
public accountants within the meaning of the Securities Act and that,
in the opinion of such accountants, the financial statements and other
financial data of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereto, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and (B) covering such other
financial matters (including information as to the period ending not
more than five business days prior to the date of such letters) with
respect to the registration in respect of which such letter is being
given as such underwriters or the Holders holding a majority of the
Registrable Stock included in such registration, as the case may be,
may reasonably request and as would be customary in such a transaction;
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(h) enter into customary agreements (including if the
method of distribution is by means of an underwriting, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Stock to be so included in the registration
statement;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, but not later than
eighteen (18) months after the effective date of the registration
statement, an earnings statement covering the period of at least twelve
(12) months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(j) use its best efforts to list the Registrable Stock
covered by such registration statement with any securities exchange on
which the Common Stock is then listed;
(k) use its best efforts to cause its senior officers to
participate in any "road show" in connection with the disposition of
the Registrable Stock to be so included in the registration statement;
(l) provide a transfer agent and registrar (which may be
the same entity and which may be the Company) for such Registrable
Stock;
(m) issue to any underwriter to which the Holders of such
Registrable Stock may sell shares in such offering certificates
evidencing such Registrable Stock; and
(n) subject to all the other provisions of this
Agreement, use its best efforts to take all other steps necessary to
effect such registration of such Registrable Stock contemplated hereby.
For purposes of Sections 4(a) and 4(b), the period of distribution of
Registrable Stock shall be deemed to extend until the earlier of (i) the sale of
all Registrable Stock covered thereby or, in the case of a firm commitment
underwritten public offering, the distribution of all securities purchased by
the underwriters and (ii) six (6) months after the effective date thereof.
5. Suspension of Registration Statement. The Company may
delay or suspend for a period of up to sixty (60) days the filing or
effectiveness of any registration statement referred to in Section 2 or 3 and
the use of the prospectus included therein if such suspension is effected in
good faith and for valid business reasons (not including avoidance of the
Company's obligations hereunder), including the acquisition or divestiture of
assets, the
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filing of public reports with the SEC and during the pendency of material
corporate developments. Upon such suspension of a registration statement by the
Company, the Holders shall suspend offers and sales of Registrable Stock until
the Company notifies the Holders that (i) offers and sales may recommence or
(ii) the Company has filed a supplement to the prospectus or an amendment to
such registration statement to update the disclosure contained therein.
6. Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement that the Holders shall furnish to the Company such information
regarding themselves, the Registrable Stock held by them, and the intended
method of disposition of such securities as the Company shall reasonably request
and as shall be required in connection with the action to be taken by the
Company.
7. Expenses of Registration. All expenses incurred in
connection with each registration pursuant to Section 2 and Section 3 of this
Agreement, excluding underwriters' discounts and commissions and fees, but
including, without limitation, all registration, filing and qualification fees,
word processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance), listing fees, messenger and delivery
expenses, all fees and expenses of complying with state securities or blue sky
laws, fees and disbursements of counsel for the Company, and the fees and
disbursements of one counsel for the selling Holders (which counsel shall be
selected by the holders of a majority in interest of the Common Stock being
registered (excluding the Company)), shall be paid by the Company, the selling
Holders and any other selling holders pro rata based upon the amount of Common
Stock being offered by the Company, the selling Holders and any other selling
holders in such registration. The Holders shall bear and pay the underwriting
commissions and discounts applicable to securities offered for their account in
connection with any registrations, filings and qualifications made pursuant to
this Agreement.
8. Rule 144 Information. With a view to making available
the benefits of certain rules and regulations of the SEC which may at any time
permit the sale of the Registrable Stock to the public without registration, (a)
at all times after the Registration Date during which the Company is subject to
the reporting requirements of either Section 13 or 15(d) of the Exchange Act,
the Company agrees to:
(i) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
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(iii) furnish to each Holder of Registrable Stock forthwith
upon request a written statement by the Company as to its compliance
with the reporting requirements of such Rule 144 and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by
the Company as such Holder may reasonably request in availing itself of
any rule or regulation of the SEC allowing such Holder to sell any
Registrable Stock without registration; and
(b) at all times during which the Company is not subject
to the reporting requirements of either Section 13 or 15(d) of the Exchange Act,
it will provide, upon the written request of any Holder of Registrable Stock in
written form (as promptly as practicable and in any event within 15 business
days), to any prospective buyer of such stock designated by such Holder, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the SEC under the Securities Act and upon written request of the
Holder, the Company will cooperate with and assist any Holder of Registrable
Stock or any member of the National Association of Securities Dealers, Inc.
system for Private Offerings Resales and Trading through Automated Linkage
("PORTAL") in applying to designate and thereafter maintain the eligibility of
the Registrable Stock for trading through PORTAL.
9. Indemnification. In the event any Registrable Stock
is included in a registration statement under this Agreement:
(a) The Company shall indemnify and hold harmless each
Holder, such Holder's directors and officers, each Person who
participates in the offering of such Registrable Stock, including
underwriters (as defined in the Securities Act), and each Person, if
any, who controls such Holder or participating Person within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or proceedings in respect thereof) arise out of
or are based on any untrue statement or alleged untrue statement of any
material fact contained in such registration statement (or any
amendments or supplements thereto), including all documents
incorporated therein by reference, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or prospectus (or any amendment or
supplement thereto) or arise out of or are based upon the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and shall reimburse each such Holder,
such Holder's directors and officers, such participating person or
controlling person for any legal or other expenses reasonably incurred
by them (but not
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in excess of expenses incurred in respect of one counsel for all of
them unless, in the reasonable judgment of an indemnified party there
is a conflict of interest with another indemnified party, in which case
the indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 9(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld); and provided
further that the Company shall not be liable to any Holder, such
Holder's directors and officers, participating Person or controlling
Person in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary
prospectus, final prospectus or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, such Holder's directors and officers, participating Person or
controlling Person. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such
Holder, such Holder's directors and officers, participating Person or
controlling Person, and shall survive the transfer of such securities
by such Holder.
(b) The Holders demanding or joining in a registration
severally and not jointly shall indemnify and hold harmless the
Company, each of its directors and officers, each agent and any
underwriter for the Company (within the meaning of the Securities Act)
and each Person who controls any of the foregoing Persons (within the
meaning of the Securities Act) against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such
director, officer, controlling Person, agent or underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration statement
(or any amendments or supplements thereto), including all documents
incorporated therein by reference, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or prospectus (or any amendment or
supplement thereto) or arise out of or are based upon the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such
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registration statement, preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished by or on behalf of such Holder expressly for use
in connection with such registration; and each such Holder shall
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, agent, underwriter or
controlling Person (but not in excess of expenses incurred in respect
of one counsel for all of them unless, in the reasonable judgment of an
indemnified party, there is a conflict of interest with another
indemnified party, in which case the indemnified parties may be
represented by separate counsel) in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section 9(b)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of such Holder (which consent shall not be unreasonably
withheld), and provided further that the liability of each Holder
hereunder shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the
net proceeds from the sale of the shares sold by such Holder under such
registration statement bears to the total net proceeds from the sale of
all securities sold thereunder, but not in any event to exceed the net
proceeds received by such Holder from the sale of Registrable Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and assume
the defense thereof with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified party; provided, however,
that an indemnified party shall have the right to retain its own
counsel, with all fees and expenses thereof to be paid by such
indemnified party (except as provided in paragraph (a) and (b) above),
and to be apprised of all progress in any proceeding the defense of
which has been assumed by the indemnifying party. The failure to notify
an indemnifying party promptly of the commencement of any such action
shall only release the indemnifying party from any of its obligations
under this Section 9 if, and only to the extent that, such indemnifying
party is materially prejudiced by such failure, but the omission to so
notify the indemnifying party will not relieve it of any liability that
it may have to any indemnified party otherwise than under this Section.
(d) To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate
<PAGE> 14
14
to reflect the relative fault of the indemnifying party and indemnified
party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
10. Lockup. Each Holder shall, in connection with any
registration of the Company's securities, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
agree in writing not to effect any sale, transfer, disposition or distribution
of any Registrable Stock (other than that included in the registration) without
the prior written consent of the Company or such underwriters, as the case may
be, for such period of time which shall begin not more than ten (10) days prior
to the initial filing of the registration statement pursuant to which such
public offering shall be made and which shall not exceed ninety (90) days from
the effective date of such registration statement, as the Company or the
underwriters may specify; provided, however, that the officers and directors of
the Company who own capital stock of the Company and all other holders of 5% or
more of the capital stock of the Company shall each be subject to similar
restrictions.
11. No Conflict of Rights. The Company shall not, after
the date hereof, grant any registration rights unless such registration rights
are substantially similar to and no more favorable than those registration
rights granted hereby and do not conflict with or otherwise impair any
registration rights contained herein.
12. Assignment of Registration Rights. The registration
rights of any Holder under this Agreement with respect to any Registrable Stock
may be assigned to any purchaser
<PAGE> 15
15
or transferee of such Registrable Stock; provided, however, that (a) the
assigning Holder shall give the Company written notice at or prior to the time
of such assignment stating the name and address of the assignee and identifying
the securities with respect to which the rights under this Agreement are being
assigned; (b) such assignee shall agree in writing, in form and substance
reasonably satisfactory to the Company, to be bound as a Holder by the
provisions of this Agreement; and (c) immediately following such assignment the
further disposition of such securities by such assignee is restricted under the
Securities Act. No assignment of the registration rights of any Holder with
respect to any Registrable Stock in accordance with this Section 12 shall cause
such Registrable Stock to lose such status as Registrable Stock.
13. Binding Effect; Benefit. Subject to Section 12, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns and nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
14. Governing Law; Jurisdiction and Service of Process.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to contracts executed in and to be performed
in that State. Any legal action or proceeding with respect to this Agreement
shall be brought in the courts of the State of New York located in New York, New
York or the United States District Court for the Southern District of New York.
By execution and delivery of this Agreement, each of the parties hereto accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Section 17.
15. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
16. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
17. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, telecopy,
nationally-recognized overnight courier or by registered or certified mail
(postage prepaid, return receipt requested) to the
<PAGE> 16
16
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
17):
if to the Company:
Advanced Thermal Technologies, Inc.
3355 East La Palma Avenue
Anaheim, California 92806
Facsimile: (714) 688-4153
Attention: Chief Executive Officer
if to the Stockholder:
B/E Aerospace, Inc.
1400 Corporate Center Way
Wellington, Florida 33414
Facsimile: (561) 791-3966
Attention: General Counsel
in each case, with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile: (212) 848-7179
Attention: Rohan S. Weerasinghe
18. Amendments and Waivers. Any provision of this
Agreement may be amended or waived if such amendment or waiver is in writing and
is signed, in the case of an amendment, by the Holders of a majority of the
Registrable Stock and the Company, or in the case of a waiver, by the party
against whom the waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
19. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, such term or provision, as to such jurisdiction, shall be
ineffective, and all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions set forth in this Agreement is not affected in any
manner materially adverse to any party hereto. Upon such determination that any
term or other
<PAGE> 17
17
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions set forth in this Agreement be consummated
as originally contemplated to the fullest extent possible.
20. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings among the parties
hereto with respect thereto.
21. Attorneys' Fees. In the event that any party hereto
shall file suit to enforce any of the terms of this Agreement or to recover
damages for a breach of this Agreement, the prevailing party shall be entitled
to recover attorneys' fees and costs incurred in such proceeding.
22. Waiver of Jury Trial. EACH OF THE COMPANY AND THE
HOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE COMPANY AND
THE HOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
<PAGE> 18
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ADVANCED THERMAL TECHNOLOGIES, INC.
By: /s/Cameron Adamson
----------------------------------------
Name: Cameron Adamson
Title: CFO
B/E AEROSPACE, INC.
By: /s/ Thomas P. McCaffrey
-------------------------------------------
Name: Thomas P. McCaffrey
Title: Sr. VP & CFO
