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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 2)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
SUNBEAM CORPORATION
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(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(Title of Class of Securities)
867071 10 2
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(CUSIP Number)
BARRY F. SCHWARTZ
MAFCO HOLDINGS INC.
35 EAST 62ND STREET
NEW YORK, NEW YORK 10021
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
AUGUST 24, 1998
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ].
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SCHEDULE 13D
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CUSIP NO. 867071 10 2 Page 2 of 3
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This Amendment No. 2 to the Statement on Schedule 13D amends the
Statement on Schedule 13D filed by Ronald O. Perelman, Mafco Holdings Inc. and
Colman (Parent) Holdings Inc. on June 16, 1998, as amended (as so amended, the
"Schedule 13D") with respect to the Common Stock, par value $0.01 per share (the
"Shares"), of Sunbeam Corporation ("Sunbeam"). The principal executive offices
of Sunbeam are located at 1615 South Congress Avenue, Delray Beach, Florida
33445. Capitalized terms used herein shall have the meanings ascribed to them in
the Schedule 13D unless otherwise defined.
ITEM 4 PURPOSE OF THE TRANSACTION.
The following is added to the response to Item 4:
Issuance of the Warrant
On August 24, 1998, the transactions contemplated by the Settlement
Agreement were consummated, including the issuance to Parent Holdings by Sunbeam
of the Warrant to purchase 23,000,000 Shares and the execution of the Amendment
to the Registration Rights Agreement, all as described in Amendment No. 1 to the
Schedule 13D.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated as of: August 24, 1998
MAFCO HOLDINGS INC.
By: /s/ Glenn P. Dickes
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Name: Glenn P. Dickes
Title: Senior Vice President
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INDEX OF EXHIBITS
Exhibit Description
2.1* Agreement and Plan of Merger, dated as of February
27, 1998, by and among Sunbeam Corporation, Camper
Acquisition Corp. and The Coleman Company, Inc.
4.1 Warrant for the Purchase of Shares of Common Stock of
Sunbeam Corporation.
10.1* Agreement and Plan of Merger, dated as of February
27, 1998, by and among Sunbeam Corporation, Camper
Acquisition Corp., CLN Holdings Inc. and Coleman (Parent)
Holdings Inc.
10.2* Settlement Agreement, dated as of August 12, 1998, by and
between Sunbeam Corporation and Coleman (Parent) Holdings Inc.
10.3 Amendment to Registration Rights Agreement, by and
among Sunbeam Corporation and Coleman (Parent) Holdings Inc.
99.1* Joint Filing Agreement.
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* Previously filed.
EXHIBIT 4.1
EXECUTION COPY
SUNBEAM CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF SUNBEAM CORPORATION
ISSUE DATE: AUGUST 24, 1998
WARRANT NO. W-1 23,000,000 WARRANT SHARES
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASEABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS REGISTERED OR QUALIFIED
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS SUCH REGISTRATION, QUALIFICATION OR OTHER SUCH
ACTIONS ARE NOT REQUIRED UNDER ANY SUCH LAWS.
FOR VALUE RECEIVED, SUNBEAM CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that Coleman (Parent) Holdings Inc., its successor
or permitted assigns (the "Holder"), is entitled, subject to the provisions of
this Warrant, to purchase from the Company, at the times specified herein, a
number of the fully paid and non-assessable shares of Common Stock of the
Company, par value $.01 per share (the "Common Stock"), equal to the Warrant
Share Amount (as hereinafter defined) at a purchase price per share equal to the
Exercise Price (as hereinafter defined).
SECTION 1. DEFINITIONS. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"CERTIFICATE OF INCORPORATION" means the Restated Certificate of
Incorporation of the Company.
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"CLOSING PRICE" on any day means (1) if the shares of Common Stock then
are listed and traded on the New York Stock Exchange, Inc. ("NYSE"), the Closing
Price on such day as reported on the NYSE Composite Transactions Tape; (2) if
shares of Common Stock then are not listed and traded on the NYSE, the Closing
Price on such day as reported by the principal national securities exchange on
which the shares of Common Stock are listed and traded; (3) if the shares of
Common Stock then are not listed and traded on any such securities exchange, the
last reported sale price on such day on the National Market of The National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ");
or (4) if the shares of Common Stock then are not traded on the NASDAQ National
Market, the average of the highest reported bid and the lowest reported asked
price on such day as reported by NASDAQ.
"COMMON SHARE EQUIVALENT" means, with respect to any security of the
Company and as of a given date, a number which is, (i) in the case of a share of
Common Stock, one, (ii) in the case of all or a portion of any right, warrant or
other security which may be exercised for a share or shares of Common Stock, the
number of shares of Common Stock receivable upon exercise of such security (or
such portion of such security), and (iii) in the case of any security
convertible or exchangeable into a share or shares of Common Stock, the number
of shares of Common Stock that would be received if such security were converted
or exchanged on such date.
"COMMON STOCK" shall have the meaning set forth in the first paragraph
hereof.
"COMPANY" shall have the meaning set forth in the first paragraph
hereof.
"CONVERTIBLE SECURITIES" shall have the meaning set forth in Section
7(d).
"DETERMINATION DATE" shall have the meaning set forth in Section 7(f).
"EXERCISE PRICE" means a price per Warrant Share equal to $7.00.
"EXPIRATION DATE" means 5:00 p.m. New York City time on August 23, 2003.
"FAIR MARKET VALUE" as at any date of determination means, as to shares of
the Common Stock, if the Common Stock is publicly traded at such time, the
average of the daily Closing Prices of a share of Common Stock for the ten (10)
consecutive trading days ending on the most recent trading day prior to the date
of determination. If the shares of Common Stock are not publicly traded at such
time, and as to all things other than the Common Stock, Fair Market Value shall
be determined in good faith by an independent nationally recognized investment
banking firm selected by the Company and acceptable to a majority of the Holders
and which shall have no other substantial relationship with the Company.
"HOLDER" shall have the meaning set forth in the first paragraph hereof.
"OPTIONS" shall have the meaning set forth in Section 7(d).
"PERSON" means an individual, partnership, corporation, limited liability
company, trust, joint stock company, association, joint venture, or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means, with respect to any Person, any corporation or other
entity of which a majority of the capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by such Person.
"WARRANT SHARE AMOUNT" means 23,000,000 (Twenty Three Million) shares of
Common Stock as such number may be adjusted pursuant to Sections 7 and 8.
"WARRANT SHARES" means the shares of Common Stock deliverable upon
exercise of this Warrant, as adjusted from time to time.
SECTION 2. EXERCISE OF WARRANT. (a) The Holder is entitled to exercise
this Warrant in whole or in part at any time, or from time to time, until the
Expiration Date or, if such day is not a Business Day, then on the next
succeeding day that shall be a Business Day. To exercise this Warrant, the
Holder shall deliver to the Company this Warrant, including the Warrant Exercise
Subscription Form forming a part hereof duly executed by the Holder, together
with payment of the applicable Exercise Price. Upon such delivery and payment,
the Holder shall be deemed to be the holder of record of the number of Warrant
Shares equal to the Warrant Share Amount (or, in the case of a partial exercise
of this Warrant, a ratable number of such shares), notwithstanding that the
stock transfer books of the Company shall then be closed or that certificates
representing such shares shall not then be actually delivered to the Holder.
(b) At the option of the Holder, the Exercise Price may be paid in cash
(including by wire transfer of immediately available funds) or by certified or
official bank check or bank cashier's check payable to the order of the Company
or by any combination of such cash or check. At the option of the Holder, the
Exercise Price may in the alternative be paid in whole or in part by reducing
the number of shares of Common Stock issuable to the Holder by a number of
shares of Common Stock that have a Fair Market Value equal to the Exercise Price
which otherwise would have been paid (so that the net number of shares of Common
Stock issued in respect of such exercise shall equal the number of shares of
Common Stock that would have been issuable had the Exercise Price been paid
entirely in cash, less a number of shares of Common Stock with a Fair Market
Value equal to the portion of the Exercise Price paid in kind); provided that
this option shall be available only with respect to the exercise of this Warrant
with respect to not more than one-half of the total number of Warrant Shares.
The Company shall pay any and all documentary, or similar issue or transfer
taxes payable in respect of the issue or delivery of the Warrant Shares. The
Company shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer involved in the issue or delivery of Warrants
or Warrant Shares (or other securities or assets) in a name other than that in
which the Warrants so exercised were registered, and no such issue or delivery
shall be made unless and until the person requesting such issue has paid to the
Company the amount of such transfer tax or has established, to the satisfaction
of the Company, that such transfer tax has been paid.
(c) If the Holder exercises this Warrant in part, this Warrant shall be
surrendered by the Holder to the Company and a new Warrant of the same tenor and
for the unexercised number of
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Warrant Shares shall be executed by the Company. The Company shall register the
new Warrant in the name of the Holder or in such name or names of its transferee
pursuant to Section 6 as may be directed in writing by the Holder and deliver
the new Warrant to the Person or Persons entitled to receive the same.
(d) Upon surrender of this Warrant in conformity with the foregoing
provisions, the Company shall, subject to the expiration of any applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act, transfer
to the Holder of this Warrant appropriate evidence of ownership of the shares of
Common Stock or other securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or payable to the order
of, the name or names of the Holder or such transferee as may be directed in
writing by the Holder, and shall deliver such evidence of ownership and any
other securities or property (including any money) to the Person or Persons
entitled to receive the same, together with an amount in cash in lieu of any
fraction of a share as provided in Section 5, subject to any required
withholding.
SECTION 3. RESTRICTIVE LEGEND. Each certificate representing shares of
Common Stock issued pursuant to this Warrant, unless at the time of exercise
such shares are registered under the Securities Act, shall bear a legend
substantially in the form of the legend set forth on the first page of this
Warrant.
SECTION 4. RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant such number of its authorized but unissued shares of Common Stock or
other securities of the Company from time to time issuable upon exercise of this
Warrant as will be sufficient to permit the exercise in full of this Warrant.
The Company hereby represents and agrees that all such shares shall be duly
authorized and, when issued upon such exercise, shall be validly issued, fully
paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive or similar rights, except to the extent imposed by or as a result of
the status, act or omission of, the Holder.
SECTION 5. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Fair Market Value thereof; provided, however, that, in the event that the
Company combines or reclassifies the outstanding shares of its Common Stock into
a smaller number of shares, it shall be required to issue fractional shares to
the Holder if the Holder exercises all or any part of its Warrants, unless the
Holder has consented in writing to such reduction and provided the Company with
a written waiver of its right to receive fractional shares in accordance with
this Section 5.
SECTION 6. TRANSFER, EXCHANGE OR ASSIGNMENT OF WARRANT. (a) Each taker
and holder of this Warrant by taking or holding the same, consents and agrees
that the registered holder hereof may be treated by the Company and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented hereby.
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(b) Subject to the requirements of state and federal securities laws, the
Holder of this Warrant shall be entitled, without obtaining the consent of the
Company to assign and transfer this Warrant, at any time in whole or from time
to time in part, to any Person or Persons. Subject to the preceding sentence,
upon surrender of this Warrant to the Company, together with the attached
Warrant Assignment Form duly executed, the Company shall, without charge,
execute and deliver a new Warrant in the name of the assignee or assignees named
in such instrument of assignment and, if the Holder's entire interest is not
being assigned, in the name of the Holder and this Warrant shall promptly be
canceled.
(c) Upon receipt by the Company of evidence satisfactory to it (in the
exercise of its reasonable discretion) of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnification or security reasonably required by the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
(d) The Company shall pay all expenses, taxes (other than transfer taxes)
and other charges payable in connection with the preparation, issuance and
delivery of Warrants hereunder.
SECTION 7. ANTI-DILUTION PROVISIONS. So long as any Warrants are
outstanding, the Warrant Share Amount shall be subject to change or adjustment
as follows:
(a) Common Stock Dividends, Subdivisions, Combinations. In case the
Company shall (i) pay or make a dividend or other distribution to all holders of
its Common Stock in shares of Common Stock, (ii) subdivide or split the
outstanding shares of its Common Stock into a larger number of shares, or (iii)
combine the outstanding shares of its Common Stock into a smaller number of
shares (which shall not in any event be done without the express written
approval of Holders of a majority of the outstanding Warrants), then in each
such case the Warrant Share Amount shall be adjusted to equal the number of such
shares to which the holder of this Warrant would have been entitled upon the
occurrence of such event had this Warrant been exercised immediately prior to
the happening of such event or, in the case of a stock dividend or other
distribution, prior to the record date for determination of shareholders
entitled thereto. An adjustment made pursuant to this Section 7(a) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) Reorganization or Reclassification. In case of any capital
reorganization or any reclassification of the capital stock of the Company
(whether pursuant to a merger or consolidation or otherwise), or in the event of
any similar transaction, this Warrant shall thereafter be exercisable for the
number of shares of stock or other securities or property receivable upon such
capital reorganization or reclassification of capital stock or other
transaction, as the case may be, by a holder of the number of shares of Common
Stock into which this Warrant was exercisable immediately prior to such capital
reorganization or reclassification of capital stock; and, in any case,
appropriate adjustment (as determined in good faith by the Board of Directors of
the Company) shall be made for the application of the provisions herein set
forth with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth herein shall thereafter be
applicable, as nearly as reasonably practicable, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant. An ad-
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justment made pursuant to this Section 7(b) shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
(c) Distributions of Assets or Securities Other than Common Stock. In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of its capital stock (other than Common
Stock), or other debt or equity securities or evidences of indebtedness of the
Company, or options, rights or warrants to purchase any of such securities, cash
or other assets, then in each such case the Warrant Share Amount shall be
adjusted by multiplying the Warrant Share Amount immediately prior to the date
of such dividend or distribution by a fraction, of which the numerator shall be
the Fair Market Value per share of Common Stock at the record date for
determining shareholders entitled to such dividend or distribution, and of which
the denominator shall be such Fair Market Value per share less the Fair Market
Value of the portion of the securities, cash, other assets or evidences of
indebtedness so distributed applicable to one share of Common Stock. An
adjustment made pursuant to this Section 7(c) shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
(d) Below Market Issuances of Common Stock and Convertible Securities. In
case the Company shall issue Common Stock (or options, rights or warrants to
purchase shares of Common Stock (collectively, "Options") or other securities
convertible into or exchangeable or exercisable for shares of Common Stock (such
other securities, collectively, "Convertible Securities")) at a price per share
(or having an effective exercise, exchange or conversion price per share
together with the purchase price thereof) less than the Fair Market Value per
share of Common Stock on the date such Common Stock (or Options or Convertible
Securities), is sold or issued (provided that no sale of securities pursuant to
an underwritten public offering shall be deemed to be for less than Fair Market
Value), then in each such case the Warrant Share Amount shall thereafter be
adjusted by multiplying the Warrant Share Amount immediately prior to the date
of issuance of such Common Stock (or Options or Convertible Securities) by a
fraction, the numerator of which shall be (x) the sum of (i) the number of
Common Share Equivalents represented by all securities outstanding immediately
prior to such issuance and (ii) the number of additional Common Share
Equivalents represented by all securities so issued multiplied by (y) the Fair
Market Value of a share of Common Stock immediately prior to the date of such
issuance, and the denominator of which shall be (x) the product of (A) the Fair
Market Value of a share of Common Stock immediately prior to the date of such
issuance and (B) the number of Common Share Equivalents represented by all
securities outstanding immediately prior to such issuance plus (y) the aggregate
consideration received by the Company for the total number of securities so
issued plus, (z) in the case of Options or Convertible Securities, the
additional consideration required to be received by the Company upon the
exercise, exchange or conversion of such securities; provided that no adjustment
shall be required in respect of issuances of Common Stock (or options to
purchase Common Stock) pursuant to stock option or other employee benefit plans
in effect on the date hereof, or approved by the Board of Directors of the
Company after the date hereof. Notwithstanding anything herein to the contrary,
(1) no further adjustment to the Warrant Share Amount shall be made upon the
issuance or sale of Common Stock pursuant to (x) the exercise of any Options or
(y) the conversion or exchange of any Convertible Securities, if in each case
the adjustment in the Warrant Share Amount was made as required hereby upon the
issuance or sale of such Options or Convertible Securities or no adjustment was
required hereby at the time such
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Option or Convertible Security was issued, and (2) no adjustment to the Warrant
Share Amount shall be made upon the issuance or sale of Common Stock upon the
exercise of any Options existing on the original issue date hereof, without
regard to the exercise price thereof. Notwithstanding the foregoing, no
adjustment to the Warrant Share Amount shall be made pursuant to this paragraph
upon the issuance or sale of Common Stock, Options, or Convertible Securities in
a bona fide arm's-length transaction to any Person or group that, at the time of
such issuance or sale, is not an Affiliate of the Company (including any
possible issuance of Common Stock, Options, or Convertible Securities to the
public stockholders of The Coleman Company, Inc. ("Coleman") in connection with
the acquisition of their shares of Coleman common stock pursuant to the
Agreement and Plan of Merger, dated as of February 27, 1998 (the "Coleman Merger
Agreement"), by and among Sunbeam, Camper Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Sunbeam, and Coleman, or
otherwise). An adjustment made pursuant to this Section 7(d) shall become
effective immediately after such Common Stock, Options or Convertible Securities
are sold.
(e) Below Market Distributions or Issuances of Preferred Stock or Other
Securities. In case the Company shall issue non-convertible and non-exchangeable
preferred stock (or other debt or equity securities or evidences of indebtedness
of the Company (other than Common Stock or Options or Convertible Securities) or
options, rights or warrants to purchase any of such securities) at a price per
share (or other similar unit) less than the Fair Market Value per share (or
other similar unit) of such preferred stock (or other security) on the date such
preferred stock (or other security) is sold (provided that no sale of preferred
stock or other security pursuant to an underwritten public offering shall be
deemed to be for less than its fair market value), then in each such case the
Warrant Share Amount shall thereafter be adjusted by multiplying the Warrant
Share Amount immediately prior to the date of issuance of such preferred stock
(or other security) by a fraction, the numerator of which shall be the product
of (i) the number of Common Share Equivalents represented by all securities
outstanding immediately prior to such issuance and (ii) the Fair Market Value of
a share of Common Stock immediately prior to the date of such issuance, and the
denominator of which shall be (x) the product of (A) the number of Common Share
Equivalents represented by all securities outstanding immediately prior to such
issuance and (B) the Fair Market Value of a share of the Common Stock
immediately prior to the date of such issuance minus (y) the difference between
(1) the aggregate Fair Market Value of such preferred stock (or other security)
and (2) the aggregate consideration received by the Company for such preferred
stock (or other security). Notwithstanding the foregoing, no adjustment to the
Warrant Share Amount shall be made pursuant to this paragraph upon the issuance
or sale of preferred stock (or other securities of the Company other than common
Stock or Options or Convertible Securities) in a bona fide arm's-length
transaction to any Person or group that, at the time of such issuance or sale,
is not an Affiliate of the Company (including any possible issuance of preferred
stock (or other securities of the Company other than common Stock or Options or
Convertible Securities) to the public stockholders of Coleman in connection with
the acquisition of their shares of Coleman common stock pursuant to the Coleman
Merger Agreement, or otherwise). An adjustment made pursuant to this Section
7(e) shall become effective immediately after such preferred stock (or other
security) is sold.
(f) Above Market Repurchases of Common Stock. If at any time or from time
to time the Company or any Subsidiary thereof shall repurchase, by self-tender
offer or otherwise, any shares
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of Common Stock of the Company (or any Options or Convertible Securities) at a
purchase price in excess of the Fair Market Value thereof, on the Business Day
immediately prior to the earliest of (i) the date of such repurchase, (ii) the
commencement of an offer to repurchase, or (iii) the public announcement of
either (such date being referred to as the "Determination Date"), the Warrant
Share Amount shall be determined by multiplying the Warrant Share Amount
immediately prior to such Determination Date by a fraction, the numerator of
which shall be the product of (1) the number of Common Share Equivalents
represented by all securities outstanding immediately prior to such
Determination Date minus the number of Common Share Equivalents represented by
the securities repurchased or to be purchased by the Company or any Subsidiary
thereof in such repurchase and (2) the Fair Market Value of a share of Common
Stock immediately prior to such Determination Date, and the denominator of which
shall be (x) the product of (A) the number of Common Share Equivalents
represented by all securities outstanding immediately prior to the Determination
Date and (B) the Fair Market Value of a share of Common Stock immediately prior
to such Determination Date minus (y) the sum of (1) the aggregate consideration
paid by the Company in connection with such repurchase and (2) in the case of
Options or Convertible Securities, the additional consideration required to be
received by the Company upon the exercise, exchange or conversion of such
securities. Notwithstanding the foregoing, no adjustment to the Warrant Share
Amount shall be made pursuant to this paragraph upon the repurchase, by
self-tender offer or otherwise, of Common Stock (or any Options or Convertible
Security) in a bona fide arm's-length transaction from any Person or group that,
at the time of such repurchase, is not an Affiliate of the Company.
(g) Above Market Repurchases of Preferred Stock or Other Securities. If
at any time or from time to time the Company or any Subsidiary thereof shall
repurchase, by self-tender offer or otherwise, any shares of non-convertible and
non-exchangeable preferred stock (or other debt or equity securities or
evidences of indebtedness of the Company (other than Common Stock or Options or
Convertible Securities) or options, rights or warrants to purchase any of such
securities), at a purchase price in excess of the Fair Market Value thereof, on
the Business Day immediately prior to the Determination Date, the Warrant Share
Amount shall be determined by multiplying the Warrant Share Amount immediately
prior to the Determination Date by a fraction, the numerator of which shall be
the product of (i) the number of Common Share Equivalents represented by all
securities outstanding immediately prior to such Determination Date and (ii) the
Fair Market Value of a share of Common Stock immediately prior to such
Determination Date, and the denominator of which shall be (x) the product of (A)
the number of Common Share Equivalents represented by all securities outstanding
immediately prior to such Determination Date and (B) the Fair Market Value of a
share of Common Stock immediately prior to such Determination Date minus (y) the
difference between (1) the aggregate consideration paid by the Company in
connection with such repurchase and (2) the aggregate Fair Market Value of such
preferred stock (or other security). Notwithstanding the foregoing, no
adjustment to the Warrant Share Amount shall be made pursuant to this paragraph
upon the repurchase, by self-tender offer or otherwise, of non-convertible and
non-exchangeable preferred stock (or other securities of the Company other than
Common Stock or Options or Convertible Securities) in a bona fide arm's-length
transaction from any Person or group that, at the time of such repurchase, is
not an Affiliate of the Company.
(h) Readjustment of Warrant Share Amount. If (i) the purchase price
provided for in any Option or the additional consideration, if any, payable upon
the conversion or exchange of any
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Convertible Securities or the rate at which any Convertible Securities, in each
case as referred to in paragraphs (b) and (f) above, are convertible into or
exchangeable for Common Stock shall change at any time (other than under or by
reason of provisions designed to protect against dilution upon an event which
results in a related adjustment pursuant to this Section 7), or (ii) any of such
Options or Convertible Securities shall have irrevocably terminated, lapsed or
expired, the Warrant Share Amount then in effect shall forthwith be readjusted
(effective only with respect to any exercise of this Warrant after such
readjustment) to the Warrant Share Amount which would then be in effect had the
adjustment made upon the issuance, sale, distribution or grant of such Options
or Convertible Securities been made based upon such changed purchase price,
additional consideration or conversion rate, as the case may be (in the case of
any event referred to in clause (i) of this paragraph (h)) or had such
adjustment not been made (in the case of any event referred to in clause (ii) of
this paragraph (h)).
(i) Exercise Price Adjustment. Upon each adjustment of the Warrant Share
Amount pursuant to this Section 7, the Exercise Price of each Warrant
outstanding immediately prior to such adjustment shall thereafter be equal to an
adjusted Exercise Price per Share determined (to the nearest cent) by
multiplying the Exercise Price for the Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the Warrant Share
Amount in effect immediately prior to such adjustment and the denominator of
which shall be the Warrant Share Amount in effect immediately after such
adjustment.
(j) Consideration. If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for cash, the consideration
received in respect thereof shall be deemed to be the amount received by the
Company therefor, before deduction therefrom of any reasonable, customary and
adequately documented expenses incurred in connection therewith. If any shares
of Common Stock, Options or Convertible Securities shall be issued, sold or
distributed for a consideration other than cash, the amount of the consideration
other than cash received by the Company shall be deemed to be the Fair Market
Value of such consideration, before deduction of any reasonable, customary and
adequately documented expenses incurred in connection therewith. If any shares
of Common Stock, Options or Convertible Securities shall be issued in connection
with any merger in which the Company is the surviving corporation, the amount of
consideration therefor shall be deemed to be the Fair Market Value of such
portion of the assets and business of the non-surviving corporation as shall be
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. If any Options shall be issued in connection with the issuance and
sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Options by
the parties thereto, such Options shall be deemed to have been issued without
consideration.
(k) No Impairment. The Company will not, by amendment of its Certificate
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 7 and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the Holder against
impairment. Without limiting the generality of the foregoing, the
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<PAGE>
Company will not increase the par value of any shares of Common Stock receivable
on the exercise of the Warrants above the amount payable therefor on such
exercise.
(l) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Warrant Share Amount pursuant to this Section 7, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Holder a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, upon the written
request at any time of the Holder, furnish or cause to be furnished to Holder a
like certificate setting forth (1) such adjustments and readjustments and (2)
the number of shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the exercise of this Warrant.
(m) Proceedings Prior to Any Action Requiring Adjustment. As a condition
precedent to the taking of any action which would require an adjustment pursuant
to this Section 7, the Company shall take any action which may be necessary,
including obtaining regulatory approvals or exemptions, in order that the
Company may thereafter validly and legally issue as fully paid and nonassessable
all shares of Common Stock which the Holders are entitled to receive upon
exercise thereof.
(n) Notice of Adjustment. Upon the record date or effective date, as the
case may be, of any action which requires or might require an adjustment or
readjustment pursuant to this Section 7, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal executive
office and with its stock transfer agent or its warrant agent, if any, an
officers' certificate showing the adjusted number of Warrant Shares determined
as herein provided, setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment. Each such officers'
certificate shall be signed by the chairman, president or chief financial
officer of the Company and by the secretary or any assistant secretary of the
Company. Each such officers' certificate shall be made available at all
reasonable times for inspection by the Holder or any Holder of a Warrant
executed and delivered pursuant to Section 6(b) and the Company shall, forthwith
after each such adjustment, mail a copy, by first-class mail, of such
certificate to the Holder or any such holder.
(o) Payments in Lieu of Adjustment. The Holder shall, at its option, be
entitled to receive, in lieu of the adjustment pursuant to Section 7(c)
otherwise required thereof, on (but not prior to) the date of exercise of the
Warrants, the evidences of indebtedness, other securities, cash, property or
other assets which such Holder would have been entitled to receive if it had
exercised its Warrants for shares of Common Stock immediately prior to the
record date with respect to such distribution. The Holder may exercise its
option under this Section 7(o) by delivering to the Company a written notice of
such exercise simultaneously with its notice of exercise of this Warrant.
SECTION 8. CONSOLIDATION, MERGER OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or
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<PAGE>
any sale or transfer of all or substantially all of the assets of the Company to
the Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, the Holder shall have the right
thereafter to exercise this Warrant for the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by a holder of the number of shares of Common Stock for which this Warrant may
have been exercised immediately prior to such consolidation, merger, sale or
transfer. Adjustments for events subsequent to the effective date of such a
consolidation, merger, sale or transfer of assets shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Warrant. In any
such event, effective provisions shall be made in the certificate or articles of
incorporation of the resulting or surviving corporation, in any contract of
sale, merger, conveyance, lease, transfer or otherwise so that the provisions
set forth herein for the protection of the rights of the Holder shall thereafter
continue to be applicable; and any such resulting or surviving corporation shall
expressly assume the obligation to deliver, upon exercise, such shares of stock,
other securities, cash and property. The provisions of this Section 8 shall
similarly apply to successive consolidations, mergers, sales, leases or
transfers.
SECTION 9. WARRANT AGENT. At the written request of the Holders of a
majority of the outstanding Warrants, the Company shall as soon as is
reasonably practicable:
(i) appoint a warrant agent to act as agent for the Company in
connection with the issuance, transfer and exchange of the Warrants
and shall enter into an agreement with such warrant agent reflecting
the terms and conditions of such appointment, which terms and
conditions shall be customary for such appointments, and such other
matters as are customarily included in such agreements so as to
facilitate the transfer and registration of the Warrants; and
(ii) use its reasonable best efforts to cause the Warrants to be
eligible to be publicly traded, including, without limitation,
amending this Warrant to provide terms and conditions necessary and
appropriate for the Warrants to be publicly traded.
SECTION 10. NOTICES. Any notice, demand or delivery authorized by this
Warrant shall be in writing and shall be given to the Holder or to the Company,
as the case may be, at its address (or facsimile number) set forth below, or
such other address (or facsimile number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Sunbeam Corporation
1615 South Congress Avenue, Suite 200
Delray Beach, Florida 33445
Attention: Corporate Secretary
Facsimile: (561) 243-2191
with copies to: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Blaine V. Fogg, Esq.
Facsimile: (212) 735-3597
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<PAGE>
and to: Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Stephen E. Jacobs, Esq.
Facsimile: (212) 310-8007
If to the Holder: Coleman (Parent) Holdings Inc.
c/o MacAndrews & Forbes Holdings Inc.
35 East 62nd Street
New York, New York 10021
Attention: Barry F. Schwartz, Esq.
Facsimile: (212) 572-5056
with copies to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich, Esq.
Facsimile: (212) 403-2000
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy, or (ii)
if given by any other means, when received at the address specified herein.
SECTION 11. RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant,
the Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder of the Company, including, without limitation, the right to vote, to
receive dividends or other distributions, to exercise any preemptive right or to
receive any notice of meetings of shareholders or any notice of any proceedings
of the Company except as may be specifically provided for herein.
SECTION 12. GOVERNING LAW. THIS WARRANT AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF DELAWARE, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED
AND ENFORCED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13. AMENDMENTS; WAIVERS. Any provision of this Warrant may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder 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 either 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. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
-12-
<PAGE>
SECTION 14. Interpretation. When a reference is made in this Warrant to a
Section such reference shall be to a Section of this Warrant unless otherwise
indicated. Whenever the words "include", "includes" or "including" are used in
this Warrant, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Warrant shall refer to this Warrant as a whole and not
to any particular provision of this Warrant. The definitions contained in this
Warrant are applicable to the singular as well as the plural forms of such terms
and to the masculine as well as to the feminine and neuter genders of such term.
References to a person are also to its permitted successors and assigns and, in
the case of an individual, to his heirs and estate, as applicable.
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<PAGE>
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
by its duly authorized officer and to be dated as of the date first above
written.
SUNBEAM CORPORATION
By: /s/ Karen Clark
-------------------
Name: Karen Clark
Title: VP-Finance
ATTEST:
By: /s/ Janet G. Kelley
Name: Janet G. Kelley
Title: Vice President &
General Counsel
ACKNOWLEDGED AND AGREED:
COLEMAN (PARENT) HOLDINGS INC.
By: /s/ Glenn P. Dickes
Name: Glenn P. Dickes
Title: Vice President
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<PAGE>
WARRANT EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of the Warrant
after delivery of the Warrant Exercise Notice)
To: Sunbeam Corporation
The undersigned irrevocably exercises the Warrant for the purchase of
__________ shares (the "Shares") of Common Stock, par value $.01 per share, of
Sunbeam Corporation (the "Company") ("Common Stock") at an exercise price of
$_______ per Share and herewith makes payment of $__________ (such payment being
made in cash or by certified or official bank or bank cashier's check payable to
the order of the Company or by any permitted combination of such cash or check
or by the reduction of the number of shares of Common Stock that otherwise would
be issued upon this exercise by the number of shares of Common Stock that have a
value equal to such exercise price), all on the terms and conditions specified
in this Warrant, surrenders this Warrant and all right, title and interest
therein to the Company and directs that the Shares deliverable upon the exercise
of this Warrant be registered or placed in the name and at the address specified
below and delivered thereto.
Date: _______ __, ____.
--------------------------------------
(Name - Please Print)
--------------------------------------
(Signature of Owner)
--------------------------------------
(Street Address)
--------------------------------------
(City) (State) (Zip Code)
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<PAGE>
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the within Warrant to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
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<PAGE>
WARRANT ASSIGNMENT FORM
Dated ___________ __, ____
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers
unto ______________________________________________ (the "Assignee"),
(please type or print in block letters)
- ------------------------------------------------------------------------------
(insert address)
its right to purchase up to _____ shares of Common Stock represented by this
Warrant and does hereby irrevocably constitute and appoint
_________________________ Attorney, to transfer the same on the books of the
Company, with full power of substitution in the premises.
Signature:
-----------------------------------------
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EXHIBIT 10.3
EXECUTION COPY
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT, dated as of August 24, 1998 (this "Amendment"), to the
REGISTRATION RIGHTS AGREEMENT, dated as of March 29, 1998 (the "Registration
Rights Agreement"), by and among SUNBEAM CORPORATION, a Delaware corporation
("Laser" or "Sunbeam"), and COLEMAN (PARENT) HOLDINGS INC., a Delaware
corporation ("Parent Holdings"). Capitalized terms used in this Amendment have
the meanings ascribed to them in the Registration Rights Agreement unless
otherwise defined herein. References to Articles and Sections shall, unless
otherwise stated, be to the Articles and Sections of the Registration Rights
Agreement. In all respects not inconsistent with the terms and provisions of
this Amendment, the Registration Rights Agreement shall continue to be in full
force and effect in accordance with the terms and conditions thereof, and is
hereby ratified, adopted, approved and confirmed. From and after the date
hereof, each reference to the Registration Rights Agreement therein or in any
other instrument or document shall be deemed a reference to the Registration
Rights Agreement as amended hereby, unless the context otherwise requires, and
this Amendment and the Registration Rights Agreement shall for all purposes and
matters be considered as one agreement, including that all of the ministerial
and miscellaneous provisions of the Registration Rights Agreement shall apply
equally thereto as so amended and to this Amendment.
WHEREAS, pursuant to the Holdings Merger Agreement, by and among
Sunbeam, a subsidiary of Sunbeam, CLN HOLDINGS INC., a Delaware corporation and
wholly owned subsidiary of Parent Holdings ("Holdings"), and Parent Holdings,
the Holdings Merger was consummated on March 30, 1998 and Holdings became an
indirect wholly owned subsidiary of Sunbeam; and
WHEREAS, following consummation of the Holdings Merger, the shares
of Holdings Common Stock issued and outstanding immediately prior to the
effective time of the Holdings Merger were converted into an aggregate of (A)
14,099,749 fully paid and nonassessable shares of common stock, par value $.01
per share, of Sunbeam ("Laser Common Stock") and (B) $159,956,756 in cash,
without interest thereon; and
WHEREAS, following the dismissal by Sunbeam of certain of its
executive officers in mid-June 1998, Sunbeam retained certain senior officers
employed by Affiliates of Parent Holdings as executive officers of Sunbeam; and
WHEREAS, Sunbeam and Parent Holdings have entered into a Settlement
Agreement (the "Settlement Agreement") pursuant to which Sunbeam will issue to
Parent Holdings certain warrants to purchase shares of Laser Common Stock (the
"Warrants") and has agreed to enter into this Agreement; and
WHEREAS, in order to induce Parent Holdings to enter into the
Settlement Agreement, Sunbeam has agreed to amend the Registration Rights
Agreement and modify the registration rights with respect to the shares of Laser
Common Stock issued to Parent Hold-
<PAGE>
ings in the Holdings Merger and to provide for registration rights with respect
to the Warrants and Laser Common Stock issuable upon exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 is amended with respect to certain of the definitions
therein as follows:
The definition of the term "Agreement" is amended and restated in
its entirety to mean the Registration Rights Agreement as amended by this
Amendment.
The definition of the term "Registrable Securities" is amended and
restated in its entirety to mean (i) the Holdings Merger Stock, (ii) the
Warrants, and (iii) any shares of Laser Common Stock issued pursuant to the
Warrants, and, in each case, any other securities issued or issuable upon or in
respect of such securities by way of conversion, exchange, dividend, split or
combination, recapitalization, merger, consolidation, other reorganization or
otherwise. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when such securities have been sold or
otherwise transferred by Parent Holdings pursuant to the Shelf Registration
Statement or pursuant to Rule 144 under the Securities Act.
The following defined term shall be added to the list of definitions
in their respective alphabetically ordered positions:
The term "Holdings Merger Stock" shall mean the shares of Laser
Common Stock issued to Parent Holdings in the Holdings Merger.
The term "Warrants" shall mean the warrants to purchase 23,000,000
(Twenty-Three Million) shares of Laser Common Stock issued to Parent Holdings
pursuant to Warrant No. W-1 dated August 24, 1998.
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<PAGE>
ARTICLE II
REQUIRED REGISTRATION
Sections 2.1, 2.2 and 2.3 of Article II are amended and restated to
read in their entirety as follows:
Section 2.1 Required Registration.
(a) Form S-3. Promptly following a demand to such effect from any
holder of Registrable Securities, Laser shall prepare and file with the SEC a
registration statement (the "Shelf Registration Statement") on an appropriate
form permitting registration of the Registrable Securities so as to permit the
resale of the Registrable Securities pursuant to an offering on a delayed or
continuous basis under the Securities Act and shall use reasonable best efforts
to (i) cause the Shelf Registration Statement to be declared effective by the
SEC as promptly as practicable thereafter and (ii) permit the Shelf Registration
Statement to be used by Affiliates of Camper for resales of shares of Laser
Common Stock held by such Affiliates; provided, however, that any such
Affiliate using the Shelf Registration Statement shall agree in writing to be
bound by all of the restrictions, limitations and obligations of Parent Holdings
contained in this Agreement.
(b) Effectiveness. Laser shall use reasonable best efforts to keep
the Shelf Registration Statement continuously effective under the Securities Act
until the date that is the earliest to occur of (i) the date by which all
Registrable Securities have been sold and (ii) the date by which all Registrable
Securities are eligible for immediate sale to the public without registration
under Rule 144 under the Securities Act, with such sale not being limited by the
volume restrictions thereunder or otherwise.
(c) Amendments/Supplements. Laser shall amend and supplement the
Shelf Registration Statement and the prospectus contained therein if required by
the rules, regulations or instructions applicable to the registration form used
by Laser for such Shelf Registration Statement, if required by the Securities
Act.
(d) Offerings. At any time from and after the date on which the
Shelf Registration Statement is declared effective by the SEC (the "Effective
Date"), Parent Holdings, subject to the restrictions and conditions contained
herein and in the Merger Agreement and the Warrants to the extent applicable,
and subject further to compliance with all applicable state and federal
securities laws, shall have the right to dispose of all or any portion of the
Registrable Securities.
Section 2.2 Holdback Agreement.
From and after the Effective Date, upon the request of Laser, Parent
Holdings shall not effect any public sale or distribution (including sales
pursuant to Rule 144) of Registrable Securities that are equity securities of
Laser, or any securities convertible into or ex-
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<PAGE>
changeable or exercisable for such securities, including the Warrants, (other
than any such sale or distribution of such securities pursuant to registration
of such securities on Form S-8 or any successor form) during the period
commencing on the date on which Laser commences a Laser Offering through the
sixty (60)-day period immediately following the closing date of such Laser
Offering; provided, however, that Parent Holdings shall not be obligated to
comply with this Section 2.2 on more than two (2) occasions in any twelve
(12)-month period; and provided, further, that notwithstanding anything to the
contrary in this Section 2.2 or Section 2.3, in no event shall Parent Holdings
be disabled from effecting offers or sales of Registrable Securities for more
than one-hundred-and-twenty (120) days during any twelve (12)-month period.
Section 2.3 Blackout Provisions.
In the event that, at any time while the Shelf Registration
Statement remains effective, Laser determines in its reasonable judgment and in
good faith that the sale of Registrable Securities would require disclosure of
material information which Laser has a bona fide business purpose for preserving
as confidential, Parent Holdings shall, upon receiving written notice from Laser
of such good faith determination, suspend sales of the Registrable Securities
for a period beginning on the date of receipt of such notice and expiring on the
earlier of (i) the date upon which such material information is disclosed to the
public or ceases to be material or (ii) forty-five (45) days after the receipt
of such notice from Laser; provided, however, that Parent Holdings shall not be
obligated to comply with this Section 2.3 on more than two (2) occasions in any
twelve (12) month period; and provided, further, that notwithstanding anything
to the contrary in this Section 2.3 or Section 2.2, in no event shall Parent
Holdings be disabled from effecting offers or sales of Registrable Securities
for more than one-hundred-and-twenty (120) days during any twelve (12)-month
period.
* * *
Section 2.4(a) of Article II is hereby amended by deleting the word
"and" from the end of paragraph (12) thereof, replacing the period at the end of
paragraph (13) thereof with "; and" and adding the following additional
paragraph:
(14) will enter into customary agreements (including an underwriting
agreement in customary form) and take such actions as are reasonably required in
order to expedite or facilitate the sale of such Registrable Securities,
including, without limitation, cooperation, and causing its officers, employees
and advisors to cooperate, with the sellers of such Registrable Securities and
the underwriter(s), if any, including participation in meetings and road shows
held in connection with such sale.
-4-
<PAGE>
ARTICLE III
TRANSFERS OF REGISTRABLE SECURITIES
Sections 3.1 and 3.2 of Article III are amended and restated to read
in their entirety as follows:
Section 3.1 Transferability of Registrable Securities.
(a) Parent Holdings may not Transfer the Registrable
Securities, other than
(1) pursuant to Rule 144;
(2) pursuant to the Shelf Registration Statement; or
(3) in any other Transfer exempt from registration under the
Securities Act, and as to which Laser has received an opinion of
counsel, reasonably satisfactory to Laser, that such Transfer is so
exempt;
and shall in no event Transfer any Registrable Securities in violation of
the Settlement Agreement.
Section 3.2 Restrictive Legends.
Parent Holdings hereby acknowledges and agrees that, during the term
of this Agreement, all of the Registrable Securities shall include the legend
set forth in Section 7.2 of the Holdings Merger Agreement, the legend set forth
on the Warrants or as provided in the Warrants or as may otherwise be reasonably
appropriate to reflect the fact that such Registrable Securities have not been
issued in transactions registered under the Securities Act, unless at the time
such Registrable Securities have been registered under the Securities Act.
ARTICLE IV
MISCELLANEOUS
Sections 4.5 and 4.11 of Article IV are amended and restated in
their entirety to read as follows:
Section 4.5 Binding Effect; Assignment.
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, successors and permitted assigns, but, except as expressly
contemplated herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly, by Laser or
Parent Holdings without the prior written consent of the other (except in the
case of
-5-
<PAGE>
any assignment in whole or in part by Parent Holdings to any Affiliate,
as to which no such consent shall be required); provided, that in connection
with a bona fide pledge of any Registrable Securities to secure indebtedness or
other obligations, Parent Holdings may assign its rights, interests and
obligations hereunder to the beneficiary of such pledge in whole or in part.
Upon any permitted assignment (other than in connection with any such bona fide
pledge), this Agreement shall be amended to substitute or add the assignee as a
party hereto in a writing reasonably acceptable to the other party.
Section 4.11 Termination; Restrictive Legend.
This Agreement shall terminate only following such time as Sunbeam
shall have no further obligation under Section 2.1(b) to use its reasonable best
efforts to keep the Shelf Registration Statement effective; provided, however,
that the provisions of Section 2.6 hereof shall survive termination of this
Agreement. It is understood and agreed that any restrictive legends set forth on
any Registrable Securities shall be removed by delivery of substitute
certificates without such legends and such Registrable Securities shall no
longer be subject to the terms of this Agreement or upon the resale of such
Registrable Securities in accordance with the terms of this Agreement.
ARTICLE V
OTHER
The following provisions shall also apply to this Amendment:
Section 5.1 Effectiveness of this Amendment. The provisions of this
Amendment shall be effective as of the date hereof.
Section 5.2 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 5.3 Governing Law. This Amendment shall be
governed by the laws of the State of New York, without regard to the
principles of conflicts of law thereof.
Section 5.4 No Waiver. The execution, delivery and performance of
this Amendment shall not operate as a waiver of any condition, power, remedy or
right exercisable in accordance with the Registration Rights Agreement, and
shall not constitute a waiver of any provision of the Registration Rights
Agreement, except as expressly provided herein.
Section 5.5 Descriptive Headings. The article and section headings
contained in this Amendment are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Amendment.
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<PAGE>
IN WITNESS WHEREOF, the undersigned hereby agree to be bound by the
terms and provisions of this Amendment as of the date first above written.
SUNBEAM CORPORATION
By: /s/ Janet G. Kelley
-----------------------
Name: Janet G. Kelley
Title: Vice President &
General Counsel
COLEMAN (PARENT) HOLDINGS INC.
By: /s/ Glenn P. Dickes
-----------------------
Name:
Title:
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