EXHIBIT 10.2





REGISTRATION RIGHTS AGREEMENT


by and between


TRIAN ACQUISITION I CORP.,


TRIAN ACQUISITION I, LLC,


TRIAN FUND MANAGEMENT, L.P. 


and


THE OTHER PERSONS NAMED HEREIN




	
 

	
 

	
 


	
 

	


	
 


	
 

	
Dated as of January 29, 2008

	
 


	
 

	


	
 















TABLE OF CONTENTS


	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 

	



	
ARTICLE I

	
 

	
DEFINITIONS

	
 

	
2


	
 

	
 

	
 

	
 

	
 


	
ARTICLE II

	
 

	
REGISTRATION
  RIGHTS

	
 

	
4


	
 

	
2.1.

	
 

	
Demand
  Registration

	
 

	
4


	
 

	
2.2

	
 

	
Piggy-Back
  Registration

	
 

	
7


	
 

	
2.3

	
 

	
Form S-3
  Registrations

	
 

	
9


	
 

	
2.4

	
 

	
Automatic
  Shelf Registration Statement

	
 

	
10


	
 

	
2.5

	
 

	
Permitted
  Delays

	
 

	
11


	
 

	
 

	
 

	
 

	
 


	
ARTICLE III

	
 

	
REGISTRATION;
  PROCEDURES.

	
 

	
11


	
 

	
3.1

	
 

	
Filings;
  Information

	
 

	
11


	
 

	
3.2

	
 

	
Obligation
  to Suspend Distribution

	
 

	
15


	
 

	
3.3

	
 

	
Registration
  Expenses

	
 

	
15


	
 

	
3.4

	
 

	
Information

	
 

	
16


	
 

	
 

	
 

	
 

	
 


	
ARTICLE IV

	
 

	
INDEMNIFICATION
  AND CONTRIBUTION

	
 

	
16


	
 

	
4.1

	
 

	
Indemnification
  by the Company

	
 

	
16


	
 

	
4.2

	
 

	
Indemnification
  by Holders

	
 

	
17


	
 

	
4.3

	
 

	
Conduct of
  Indemnification Proceedings

	
 

	
18


	
 

	
4.4

	
 

	
Contribution

	
 

	
18


	
 

	
 

	
 

	
 

	
 


	
ARTICLE V

	
 

	
UNDERWRITING
  AND DISTRIBUTION

	
 

	
19


	
 

	
5.1

	
 

	
Rule 144

	
 

	
19


	
 

	
 

	
 

	
 

	
 


	
ARTICLE VI

	
 

	
MISCELLANEOUS

	
 

	
19


	
 

	
6.1

	
 

	
Other
  Registration Rights

	
 

	
19


	
 

	
6.2

	
 

	
Assignment;
  No Third Party Beneficiaries

	
 

	
19


	
 

	
6.3

	
 

	
Stock
  Splits, etc.


	
 

	
20


	
 

	
6.4

	
 

	
Notices

	
 

	
20


	
 

	
6.5

	
 

	
Severability

	
 

	
21


	
 

	
6.6

	
 

	
Counterparts

	
 

	
21


	
 

	
6.7

	
 

	
Entire
  Agreement

	
 

	
21


	
 

	
6.8

	
 

	
Modifications
  and Amendments

	
 

	
21


	
 

	
6.9

	
 

	
Titles and
  Headings

	
 

	
21


	
 

	
6.10

	
 

	
Waivers and
  Extensions

	
 

	
21


	
 

	
6.11

	
 

	
Remedies
  Cumulative

	
 

	
21


	
 

	
6.12

	
 

	
Governing
  Law; Submission to Jurisdiction

	
 

	
22


	
 

	
6.13

	
 

	
Waiver of
  Trial by Jury

	
 

	
22










REGISTRATION RIGHTS AGREEMENT


          This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of January
29, 2008, by and between Trian Acquisition I Corp. (the “Company”),
Trian Acquisition I, LLC (the “Sponsor”), Trian Fund Management,
L.P. (“Trian Fund Management”), the persons listed in Schedule I
hereto (the “Initial Holders”) and any Permitted Transferee (as defined
below) who hereafter becomes a party to this Agreement as contemplated by Section 6.2
of this Agreement (each such party who holds Registrable Securities (as defined
below), a “Holder” and, collectively, the “Holders”).


          WHEREAS,
the Sponsor and the Initial Holders currently hold all of the issued and
outstanding securities of the Company, consisting of 23,000,000 units (the “Sponsor
Units”) each consisting of one share of common stock, par value $0.0001 per
share, of the Company (“Common Stock”) and one warrant (“Warrant”)
entitling the holder thereof to purchase one share of Common Stock, or their
equivalent in shares of Common Stock and Warrants;


          WHEREAS,
the Sponsor has agreed to purchase from the Company an aggregate of 10,000,000
additional warrants (the “Sponsor Warrants”) at a price of $1.00 per
Sponsor Warrant in a private placement that will occur immediately prior to the
closing of the Company’s initial public offering; 


          WHEREAS,
in connection with the Company’s initial public offering, Trian Fund Management
has entered into an agreement with Deutsche Bank Securities Inc. and Merrill
Lynch & Co., as representatives of the underwriters, pursuant to which
Trian Fund Management will cause Trian Partners to place limit orders for up to
$75,000,000 of shares of Common Stock (the “Aftermarket Shares”) during
a period prior to the Company’s Business Combination (as defined below) (for
purposes of this Agreement, “Trian Partners” means the Trian Fund
Management and its Affiliates (as defined below), together with the funds and
accounts Trian Fund Management and its Affiliates manage);


          WHEREAS,
Trian Fund Management has further agreed to cause Trian Partners to apply any
portion of such $75,000,000 not used for open market purchases of Aftermarket
Shares to purchase from the Company such number of units, each consisting of
one share of Common Stock and one Warrant, as may be purchased with such unused
portion of the $75,000,000 at a price of $10.00 per unit (the “Co-Investment
Units” and, together with the Common Stock and Warrants comprising (or that
formerly were part of) the Co-Investment Units, the Common Stock issuable upon
exercise of such Warrants and the Aftermarket Shares, the “Purchase
Commitment Securities”); and


          WHEREAS,
the Sponsor, Trian Fund Management, the Initial Holders and the Company desire
to enter into this Agreement to provide the Sponsor and the Initial Holders
with certain rights relating to the registration of (i) the Sponsor Units, the
Common Stock and Warrants comprising (or that formerly were part of) the
Sponsor Units and the Common Stock issuable upon exercise of such Warrants and
(ii) the Sponsor Warrants and the Common Stock issuable upon exercise of the
Sponsor Warrants, and to provide the Holders of Purchase Commitment Securities
with certain rights relating to the registration of the Aftermarket Shares, the
Co-Investment Units, the Common Stock and Warrants comprising (or that formerly
were 






part of) the
Co-Investment Units and the Common Stock issuable upon exercise of such
Warrants;


          NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:


ARTICLE I 

DEFINITIONS


          The
following capitalized terms used herein have the following meanings:


          “Affiliate”
has the meaning set forth in Rule 405 promulgated under the Securities Act (in
effect on the date hereof).


          “Agreement”
means this Agreement, as amended, restated, supplemented or otherwise modified
from time to time.


          “Automatic
Shelf Registration Statement” means an “automatic shelf registration
statement” as defined in Rule 405 promulgated under the Securities Act (in
effect on the date hereof).


          “Business
Combination” means the Company’s initial business combination, through a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination, with one or more domestic or
international operating businesses or assets meeting the conditions described
in the Company’s Amended and Restated Certificate of Incorporation. 


          “Commission”
means the U.S. Securities and Exchange Commission or any successor entity.


          “Demand
Registration” is defined in Section 2.1(a).


          “Demanding
Holder” is defined in Section 2.1(a).


          “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall
be in effect at the time.


          “Free
Writing Prospectus” means any “free writing prospectus” as defined in Rule
405 promulgated under the Securities Act (in effect on the date hereof).


          “Indemnified
Party” is defined in Section 4.3.


          “Indemnifying
Party” is defined in Section 4.3.


          “Individual
Holders” means (i) the Initial Holders, (ii) any other current or future
officers or directors of the Company or employees of Trian Fund Management who
receive or acquire Registrable Securities from the Sponsor after the date
hereof, and (iii) any Permitted 


2






Transferees
(other than the Sponsor) of such persons described in (i) and (ii) (but only to
the extent that after the date hereof any such Permitted Transferees acquire
Registrable Securities from such persons).


          “Maximum
Threshold” is defined in Section 2.1(d).


          “Permitted
Transferees” means (i) the Company, any of the Company’s officers,
directors and employees, any Affiliates or Family Members of such individuals,
the Sponsor, Trian Partners, any Affiliates of the Company, the Sponsor or
Trian Partners and any officers, directors, members and employees of the
Sponsor, Trian Partners or such Affiliates, (ii) any charitable organization, (iii)
any individual pursuant to a qualified domestic relations order, (iv) if the
transferor is a corporation, partnership or limited liability company, any
stockholder, partner or member of the transferor and (v) any individual or
entity by virtue of laws or agreements governing descent or distribution upon
the death or dissolution of the transferor; provided, that, any such
transferees agree in writing to become a party to this Agreement. For purposes
of this definition, “Family Member” of a person means such person’s
present spouse and/or domestic partner, parents, lineal ascendants or
descendants or any siblings of any of the foregoing, any descendants of any
sibling of such person, any estate planning vehicle formed primarily for the
benefit of such person or any of the foregoing persons or any corporation,
partnership, limited liability company, trust, incorporated or unincorporated
association, joint venture or other entity of any kind (including any successor
of such entity) owned by any of the foregoing.


          “Piggy-Back
Registration” is defined in Section 2.2(a).


          “Pro
Rata” is defined in Section 2.1(d).


          “Registrable
Securities” means (i) the Sponsor Units, the Common Stock and Warrants
comprising (or that were formerly part of) the Sponsor Units and the Common
Stock issuable upon exercise of such Warrants, (ii) the Sponsor Warrants and
the Common Stock issuable upon exercise of the Sponsor Warrants, (iii) the
Aftermarket Shares and (iv) the Co-Investment Units, the Common Stock and
Warrants comprising (or that formerly were part of) the Co-Investment Units and
the Common Stock issuable upon exercise of such Warrants. Registrable
Securities include any shares of capital stock, warrants or other securities of
the Company issued as a dividend or other distribution with respect to or in
exchange for or in replacement of Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when: (a) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding; or (d)
the entire amount of the Registrable Securities held by any Holder may be sold
in a single sale, in the opinion of counsel reasonably satisfactory to the
Company, without any limitation as to volume or manner of sale pursuant to
Rule 144 (or any successor rule or regulation) under the Securities Act.


3






          “Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act for a public offering and sale
of Registrable Securities (other than a registration statement on Form S-4 or
S-8 (or any successor or substantially similar form), or in connection with (i)
an employee stock option, stock purchase or compensation plan or securities issued
or issuable pursuant to any such plan or (ii) a dividend reinvestment plan).


          “Release
Date” means (i) with respect to the Sponsor Warrants and the Common Stock
issuable upon exercise of the Sponsor Warrants, the day following the
consummation of a Business Combination and (ii) with respect to all other
Registrable Securities, the 180th day following the consummation of a Business
Combination.


          “S-3
Initiating Holders” means either (i) the Holders of a majority-in-interest,
on an as-converted to Common Stock basis, of the Registrable Securities or (ii)
the Holders of a majority-in-interest, on an as-converted to Common Stock
basis, of the Registrable Securities held by the Individual Holders.


          “Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.


          “Underwriter”
means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making
activities.


          “Warrant
Agreement” means the warrant agreement, dated November 1, 2007, between the
Company and American Stock Transfer & Trust Company, as warrant agent.


ARTICLE II 

REGISTRATION RIGHTS


                    2.1.
Demand Registration.


                    (a)
Request for Registration. At any time on or after the date that is three
months prior to the applicable Release Date (i) with respect to the Registrable
Securities, the Holders of a majority-in-interest, on an as-converted to Common
Stock basis, of such Registrable Securities may make a written demand for
registration under the Securities Act of all or part of their Registrable
Securities and (ii) with respect to the Purchase Commitment Securities, the
Holders of a majority-in-interest, on an as-converted to Common Stock basis, of
such Purchase Commitment Securities may make a written demand for registration
under the Securities Act of all or part of their Purchase Commitment Securities
if such Purchase Commitment Securities are Registrable Securities (each such
demand under subclause (i) or (ii), a “Demand Registration”); provided
that any Registration Statement filed with the Commission with respect to a
Demand Registration shall not be declared effective before the applicable
Release Date. Any demand for a Demand Registration shall specify the class and
number of shares of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will promptly notify all Holders
of the demand, and each who wishes to include all or a portion of such Holder’s
Registrable Securities in the Demand Registration (each 


4






such Holder
including shares of Registrable Securities in such registration, a “Demanding
Holder”) shall so notify the Company in writing within 10 days after the
receipt by the Holder of the notice from the Company. Upon receipt by the
Company of any such notice, the Demanding Holders shall be entitled to have
their Registrable Securities included in the Demand Registration, subject to Sections
2.1(d) and 2.1(f). The Company shall not be obligated to effect
more than one Demand Registration with respect to the Purchase Commitment
Securities under subclause (ii) of this Section 2.1(a) and shall not be
obligated to effect more than three Demand Registrations in respect of all
Registrable Securities under subclause (i) of this Section 2.1(a); provided,
however, that if a Demand Registration has not been made under subclause
(ii) at such time as the Purchase Commitment Securities are no longer
Registrable Securities, then the Company shall be obligated to effect up to
four Demand Registrations under subclause (i).


                    (b)
Effective Registration. A registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with
respect to such Demand Registration has been declared effective and the Company
has complied with all of its material obligations under this Agreement with
respect thereto; provided, however, that if, after such
Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to a Demand Registration is interfered with by any stop
order or injunction of the Commission or any other governmental agency or
court, the Registration Statement with respect to such Demand Registration will
be deemed not to have been declared effective, unless and until (i) such
stop order or injunction is removed, rescinded or otherwise terminated and
(ii) a majority-in-interest, on an as-converted to Common Stock basis, of
the Demanding Holders thereafter elect to continue the offering; provided,
further, that the Company shall not be obligated to file a second
Registration Statement until a Registration Statement that has been filed is
counted as a Demand Registration or is terminated.


                    (c)
Underwritten Offering. If a majority-in-interest, on an as-converted to
Common Stock basis, of the Demanding Holders so elects and such Holders so
advise the Company as part of their written demand for a Demand Registration,
the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering with one or more
investment banking firms of national reputation to act as the managing
Underwriter or Underwriters of the offering. In such event, the right of any
Holder to include its Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest, on an as-converted to Common Stock
basis, of the Demanding Holders, which Underwriter or Underwriters shall be
reasonably acceptable to the Company.


                    (d)
Reduction of Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises the Company
and the Demanding Holders in writing that the dollar amount or number or amount
of Registrable Securities that the Demanding Holders desire to sell, taken
together with all other shares of Common Stock or other securities that the
Company desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written 


5






contractual
piggy-back registration rights held by other stockholders of the Company who
desire to sell, exceeds the maximum dollar amount or maximum number of
securities that the Company believes can be sold in such offering without
adversely affecting the proposed offering price, the timing, the distribution
method or the probability of success of such offering (such maximum dollar
amount or maximum number of securities, as applicable, the “Maximum
Threshold”), then the Company shall include in such registration:
(i) first, the Registrable Securities as to which Demand Registration has
been requested by the Demanding Holders (pro rata in accordance with the number
of shares (including Sponsor Units and Warrants, on an as-converted to Common
Stock basis) that each such person has requested be included in such
registration, regardless of the number of shares held by each such person (such
proportion is referred to herein as “Pro Rata”)) that can be sold
without exceeding the Maximum Threshold; (ii) second, to the extent that
the Maximum Threshold has not been reached under the foregoing clause (i), the
shares of Common Stock or other securities that the Company desires to sell
that can be sold without exceeding the Maximum Threshold; and (iii) third,
to the extent that the Maximum Threshold has not been reached under the
foregoing clauses (i) and (ii) collectively, the shares of Common Stock or
other securities for the account of other persons that the Company is obligated
to register pursuant to written contractual arrangements with such persons and
that can be sold without exceeding the Maximum Threshold.


                    (e)
Withdrawal. If a majority-in-interest, on an as-converted to Common
Stock basis, of the Demanding Holders disapproves of the terms of any
underwriting or is not entitled to include all of its Registrable Securities in
any offering, such majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of its request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest, on an
as-converted to Common Stock basis, of the Demanding Holders withdraws from a
proposed offering relating to a Demand Registration, then the Company shall
withdraw the Registration Statement related to such offering with regards to
all such Demanding Holders and such registration shall not count as a Demand
Registration provided for in Section 2.1(a). Notwithstanding any
such withdrawal, the Company shall pay all expenses incurred by the Holders in
connection with such Demand Registration as provided in Section 3.3.


                    (f)
Permitted Delays. The Company shall be entitled to postpone the filing
of any Registration Statement under this Section 2.1 if (i) at any time
prior to the filing of such Registration Statement the Board of Directors of
the Company determines, in its good faith business judgment, that such
registration and offering would materially and adversely affect any financing,
acquisition, corporate reorganization or other material transaction involving
the Company and (ii) the Company delivers the Demanding Holders written notice
thereof within 10 business days of the date of receipt of such request for a
Demand Registration; provided that all such periods of postponement may
not exceed 45 days during any 365-day period.


                    (g)
Cancellation of Registration. A majority-in-interest, on an as converted
to Common Stock basis, of the Demanding Holders shall have the right to cancel
a proposed registration of Registrable Securities pursuant to Section 2.1
when (i) in their discretion, market conditions are so unfavorable as to be
seriously detrimental to an offering 


6






pursuant to
such registration or (ii) the request for cancellation is based upon material
adverse information relating to the Company that was unknown to the Demanding
Holders at the time of their written request for a Demand Registration. Such
cancellation of a registration shall not be counted as one of the three Demand
Registrations provided for in Section 2.1(a) and, notwithstanding
anything to the contrary in this Agreement, the Company shall be responsible
for the expenses of the Demanding Holders incurred in connection with the
registration prior to the time of such cancellation.


                    (h)
Suspension of Registration. If the filing, initial effectiveness or
continued use of a Registration Statement in respect of a Demand Registration
at any time would require the Company to make an Adverse Disclosure or would
require the inclusion in such Registration Statement of financial statements
that are unavailable to the Company for reasons beyond the Company’s control,
the Company may, upon giving prompt written notice of such action to the
Holders, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement for the shortest possible period of time determined in
good faith by the Company to be necessary for such purpose. In the event the
Company exercises its rights under the preceding sentence, the Holders agree to
suspend, immediately upon their receipt of notice referred to above, their use
of the prospectus relating to the Demand Registration in connection with any
sale or offer to sell Registrable Securities. The Company shall immediately
notify the Holders of the expiration of any period during which it exercised
rights under this Section 2.1(h). For the purpose of this Section
2.1(h), “Adverse Disclosure” means public disclosure of material
non-public information, which, in the good faith judgment of the Chairman of
the Board of Directors, the principal executive officer or the principal financial
officer of the Company, after consultation with counsel to the Company, (i)
would be required to be made in any Registration Statement or prospectus in
order for the applicable Registration Statement or prospectus not to contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein in light of the circumstances
under which they were made not misleading, (ii) would not be required to be
made at such time if the Registration Statement were not being filed and (iii)
the Company has a bona fide business purpose for not publicly making.


          2.2
Piggy-Back Registration. 


                    (a)
Piggy-Back Rights. If at any time on or after the applicable Release
Date, the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering of equity securities, or securities
or other obligations exercisable or exchangeable for, or convertible into,
equity securities, by the Company for its own account or for stockholders of
the Company for their account other than pursuant to Section 2.1,
then the Company shall (i) give written notice of such proposed filing to the
Holders as soon as practicable but in no event less than 10 business days
before the intended filing date, which notice shall disclose the amount and
type of securities to be included in such Registration Statement, the intended
method(s) of distribution and the name of the proposed managing Underwriter or
Underwriters, if any and (ii) offer to the Holders in such notice the
opportunity to register the sale of such number or amount of Registrable
Securities as such Holders may request in writing within 10 days following
receipt of such notice (a “Piggy-Back Registration”). The Company shall
cause such Registrable Securities to be included in such registration and shall
use its commercially reasonable efforts to cause the managing Underwriter or
Underwriters of a 


7






proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition
of such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All Holders proposing to distribute their securities
through a Piggy-Back Registration that involves an Underwriter or Underwriters
shall enter into an underwriting agreement in customary form with the
Underwriter or Underwriters selected for such Piggy-Back Registration.


                    (b)
Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the
Company and the Holders in writing that the dollar amount or number or amount
of securities which the Company desires to sell, taken together with the shares
of Common Stock or other securities, if any, as to which registration has been
demanded pursuant to written contractual arrangements with persons other than
the Holders hereunder, the Registrable Securities as to which registration has
been requested under this Section 2.2, and the securities, if any,
as to which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds
the Maximum Threshold, then the Company shall include in any such registration:


	
 

	
 


	
 

	
                    (i)
  If the registration is undertaken for the Company’s account: (A) first,
  the shares of Common Stock or other securities that the Company desires to
  sell that can be sold without exceeding the Maximum Threshold; (B) second, to
  the extent that the Maximum Threshold has not been reached under the
  foregoing clause (A), the shares of Common Stock or other securities, if any,
  comprised of Registrable Securities as to which Piggy-Back Registration has
  been requested pursuant to Section 2.2(a), Pro Rata, that can be sold
  without exceeding the Maximum Threshold; and (C) third, to the extent
  that the Maximum Threshold has not been reached under the foregoing clauses
  (A) and (B) collectively, the shares of Common Stock or other securities for
  the account of other persons that the Company is obligated to register
  pursuant to written contractual piggy-back registration rights with such
  persons and that can be sold without exceeding the Maximum Threshold; and


	
 

	
 


	
 

	
                    (ii)
  If the registration is a “demand” registration undertaken at the demand of
  persons other than the Holders, (A) first, the shares of Common Stock or
  other securities for the account of the demanding persons that can be sold
  without exceeding the Maximum Threshold; (B) second, to the extent that the
  Maximum Threshold has not been reached under the foregoing clause (A), the
  shares of Common Stock or other securities that the Company desires to sell
  that can be sold without exceeding the Maximum Threshold; (C) third, to
  the extent that the Maximum Threshold has not been reached under the
  foregoing clauses (A) and (B) collectively, the shares of Common Stock
  or other securities comprised of Registrable Securities, Pro Rata, as to
  which Piggy-Back Registration has been requested pursuant to Section
  2.2(a), that can be sold without exceeding the Maximum Threshold; and
  (D) fourth, to the extent that the Maximum Threshold has not been
  reached under the foregoing clauses (A), (B) and (C) collectively, the
  shares of Common Stock or other securities for the account of other persons
  that the Company 





8









	
 

	
 


	
 

	
is obligated
  to register pursuant to written contractual arrangements with such persons,
  that can be sold without exceeding the Maximum Threshold. 





                    (c)
Withdrawal. Any Holder may elect to withdraw such Holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a demand
pursuant to written contractual obligations) may withdraw a Registration
Statement filed pursuant to this Section 2.2 at any time prior to the
effectiveness of the Registration Statement. Notwithstanding any such withdrawal,
the Company shall pay all expenses incurred by the Holders in connection with
such Piggy-Back Registration as provided in Section 3.3.


          2.3
Form S-3 Registrations.


                    (a)
Requests for a Form S-3 Registration. Upon the later of (i) the Company
becoming eligible for use of Form S-3 or any successor form thereto under the
Securities Act in connection with a secondary public offering of its securities
and (ii) the time at which the Holders may request a Demand Registration under Section
2.1(a), in the event that the Company shall receive from the S-3 Initiating
Holders a written request that the Company register under the Securities Act on
Form S-3 or any successor form then in effect (an “S-3 Registration”)
the sale of all or a portion of the Registrable Securities owned by such S-3
Initiating Holders (which S-3 Registration may be a shelf registration pursuant
to Rule 415 promulgated under the Securities Act (or any successor rule or
regulation)), the Company shall give written notice of such request to all of
the other Holders as promptly as practicable but in no event later than 10 days
before the anticipated filing date of such Form S-3, which notice shall
describe the proposed registration, the intended method of distribution of such
Registrable Securities and any other information that at the time would be
appropriate to include in such notice, and offer such other Holders the
opportunity to register the number of Registrable Securities as each such
Holder may request in writing to the Company, given within 10 days of the date
on which the Company sent the written notice of such registration. Each request
for an S-3 Registration by the S-3 Initiating Holders shall state the amount of
the Registrable Securities proposed to be sold and the intended method of
disposition thereof. With respect to each S-3 Registration, the Company shall,
subject to Section 2.3(c), (i) include in such offering the Registrable
Securities of the S-3 Initiating Holders and the other Holders who have requested
in writing to participate in such registration on the same terms and conditions
as the Registrable Securities of the S-3 Initiating Holders included therein
(collectively, the “S-3 Participating Holders”) and (ii) use its
commercially reasonable efforts to cause such registration pursuant to this Section
2.3(a) to become and remain effective as soon as practicable but in no
event earlier than 90 days after the effective date of any other Registration
Statement of the Company that had been filed with the Commission but not yet
declared effective at the time such registration was requested. Notwithstanding
the foregoing, immediately upon determination of the price at which such
Registrable Securities are to be sold in a S-3 Registration that is a firm commitment
underwritten offering, if such price is below the price which any S-3
Participating Holder finds acceptable, such S-3 Participating Holder shall then
have the right, by written notice to the Company, to withdraw its Registrable
Securities from being included in such offering; provided,


9






that such a
withdrawal by any one of the S-3 Initiating Holders shall constitute and effect
an automatic withdrawal by all other S-3 Participating Holders. If the S-3
Initiating Holders request, the Company shall cause such S-3 Registration to be
made pursuant to an Automatic Shelf Registration Statement (provided such
Automatic Shelf Registration Statement is available for use by the Company) and
may omit the names of the S-3 Participating Holders and the amount of the
Registrable Securities to be offered thereunder. The Company shall not be
obligated to effect more than one S-3 Registration requested by the S-3
Initiating Holders described in clause (ii) of the definition thereof. 


                    (b)
Form S-3 Underwriting Procedures. If a majority-in-interest, on an
as-converted to Common Stock basis, of the S-3 Initiating Holders so elect, the
Company shall use its commercially reasonable efforts to cause such S-3
Registration pursuant to this Section 2.3 to be in the form of a firm
commitment underwritten offering with one or more investment banking firms of
national reputation to act as the managing Underwriter or Underwriters. In
connection with any S-3 Registration under Section 2.3(a) involving an
underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the Holders thereof
accept the terms of the underwritten offering as agreed upon between the
Company, the managing Underwriter or Underwriters and a majority-in-interest,
on an as-converted to Common Stock basis, of the S-3 Initiating Holders, and
then only in such quantity as set forth below. 


                    (c)
Reduction of Offering. If the managing Underwriter or Underwriters advise
the Company that the registration of all or part of the Registrable Securities
which the S-3 Initiating Holders and the other Holders have requested to be
included would materially adversely affect the distribution or sales price of
the Registrable Securities in such public offering, then the Company shall
include in such underwritten offering, to the extent of the amount that the
managing Underwriter or Underwriters believes may be sold without causing such
material adverse effect, (i) first, such number of Registrable Securities of
the Holders participating in the offering under Section 2.1(a), which
Registrable Securities shall be allocated Pro Rata, (ii) second, any other
securities of the Company requested by holders thereof to be included in such
registration, pro rata among such other holders on the basis of the number of
securities that each such holder requested to be included in such registration
and (iii) third, securities offered by the Company for its own account. 


                    (d)
Expenses. Except as provided in Section 3.3, the Company shall
bear all Registration Expenses in connection with any S-3 Registration pursuant
to this Section 2.3, whether or not such S-3 Registration becomes
effective. 


          2.4
Automatic Shelf Registration Statement. If a Form S-3 is an Automatic
Shelf Registration Statement and such Automatic Shelf Registration Statement
becomes effective without naming the selling security holders or disclosing the
amount of securities offered, upon written request by the Holders participating
in the offering, the Company shall, as promptly as practicable after receiving
such request, (i) file with the Commission a prospectus supplement naming the
selling security holders and the amount of Registrable Securities to be offered
and include, to the extent not included or incorporated by reference in the
Registration Statement, any other information omitted from the prospectus used
in connection with such Registration 


10






Statement as
permitted by Rule 430B promulgated under the Securities Act (including the plan
of distribution) and (ii) pay any necessary filing fees to the Commission
within the time period required. 


          2.5
Permitted Delays. The Company shall be entitled to postpone the filing
of any Registration Statement under Section 2.3 if (i) at any time prior
to the filing of such Registration Statement the Board of Directors of the
Company determines, in its good faith business judgment, that such registration
and offering would materially and adversely affect any financing, acquisition,
corporate reorganization or other material transaction involving the Company,
and (ii) the Company delivers the Holders requesting such registration written
notice thereof within 10 business days of the date of receipt of such request; provided,
that all such periods of postponement may not exceed 45 days during any 365-day
period. 


ARTICLE III

REGISTRATION; PROCEDURES. 


          3.1
Filings; Information. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Article II, the Company
shall use its reasonable best efforts to effect the registration and sale of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as promptly as reasonably practicable, and in connection
with any such request:  


                    (a)
Filing Registration Statement. Subject to Sections 2.1(f) and 2.5,
the Company shall, as promptly as reasonably practicable, and in any event
within 75 days after receipt of a request for a Demand Registration pursuant to
Section 2.1 or a request for an S-3 Registration pursuant to Section
2.3, prepare and file with the Commission a Registration Statement on any
applicable form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the sale
of all Registrable Securities to be registered thereunder in accordance with
the intended method(s) of distribution thereof, and shall use its commercially
reasonable efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1(b). Before filing with
the Commission a Registration Statement or prospectus or any amendment or
supplement thereto, including documents incorporated by reference, or before
using any Free Writing Prospectus, the Company shall furnish to the Holders
included in such Registration Statement and to one firm of legal counsel
selected by a majority-in-interest, on an as-converted to Common Stock basis,
of the Demanding Holders, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such Holders and legal counsel
with a reasonable opportunity to review such documents and comment thereon, and
the Company shall not file any Registration Statement or prospectus or
amendment or supplement thereto, including documents incorporated by reference,
to which such Holders or their legal counsel shall reasonably object. 


                    (b)
Amendments and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement effective
and in compliance with the provisions of the Securities Act until all
Registrable Securities and other securities covered by such Registration
Statement have been disposed of in accordance with the intended method(s) of


11






distribution
set forth in such Registration Statement (which period shall not exceed the sum
of 180 days (or, in the case of an S-3 Registration Statement, three years from
the effective date of the Registration Statement if such Registration Statement
is filed pursuant to Rule 415 promulgated under the Securities Act (or any
successor rule or regulation) plus any period during which any such disposition
is interfered with by any stop order or injunction of the Commission or any
governmental agency or court). 


                    (c)
Copies. The Company shall, upon request, furnish without charge to the
Holders included in such Registration Statement, and the Holders’ legal
counsel, copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated
by reference therein), the prospectus included in such Registration Statement
(including each preliminary prospectus), any prospectus filed under Rule 424
under the Securities Act and any Free Writing Prospectus as each such Holder or
their legal counsel may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holders. 


                    (d)
State Securities Laws Compliance. The Company shall, as promptly as
practicable, (i) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or “blue sky” laws of such
jurisdictions in the United States as the Holders included in such Registration
Statement (in light of their intended plan of distribution) may request and
(ii) take such action necessary to cause such Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the Holders included in such Registration
Statement to consummate the disposition of such Registrable Securities in such
jurisdictions; provided, however, that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph, subject itself to taxation in any such jurisdiction or consent to
general service of process in any such jurisdiction.  


                    (e)
Notification. After the filing of a Registration Statement, the Company
shall promptly, and in no event more than two business days after such filing,
notify the Holders included in such Registration Statement of such filing, and
shall further notify such Holders in writing within two business days of the
occurrence of any of the following: (i) when a prospectus, any prospectus
supplement, any Free Writing Prospectus, or a post-effective amendment to the
Registration Statement has been filed with the Commission, and with respect to
the Registration Statement or any post-effective amendment, when the same
becomes effective; (ii) the issuance or threatened issuance by the Commission
of any stop order (and the Company shall take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered); (iii) any
request by the Commission for any amendment or supplement to such Registration Statement,
any prospectus relating thereto or Free Writing Prospectus or for additional
information; or (iv) the existence of any fact or happening of any event of
which the Company has knowledge which makes any statement of a material fact in
such Registration Statement, related prospectus or Free Writing Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue or which would require the making of any changes in such Registration
Statement, prospectus or Free Writing Prospectus in order that, in 


12






the case of
the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the
case of such prospectus or Free Writing Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Company
shall, as promptly as practicable upon the occurrence of any event contemplated
by the foregoing clause (iv), prepare a supplement or amendment to such
Registration Statement, related prospectus or Free Writing Prospectus and
furnish to each Holder participating in the offering to which such Registration
Statement relates a reasonable number of copies of such supplement to, or
amendment of, such Registration Statement, prospectus or Free Writing
Prospectus as may be necessary so that, after delivery to the purchasers of
such Registrable Securities, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of such prospectus or Free Writing
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. 


                    (f)
Agreements for Disposition. The Company shall enter into customary
agreements (including, if applicable, an underwriting agreement in customary
form) and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable Securities. The
representations, warranties and covenants of the Company in any underwriting
agreement that are made to or for the benefit of any Underwriters, to the
extent applicable, shall also be made to and for the benefit of the Holders
included in such Registration Statement. No Holder included in such Registration
Statement shall be required to make any representations or warranties in the
underwriting agreement except, if applicable, with respect to such Holder’s
organization, good standing, authority, title to Registrable Securities, lack
of conflict of such sale with such Holder’s material agreements and
organizational documents, and with respect to written information relating to
such Holder that such Holder has furnished in writing expressly for inclusion
in such Registration Statement. Holders shall agree to such covenants and
indemnification and contribution obligations from selling stockholders as are
customarily contained in underwriting agreements. Further, such Holders shall
cooperate fully in the preparation of the Registration Statement and other documents
relating to the any offering in which they include securities pursuant to Article
II hereof; provided, however, that such cooperation shall be
limited to furnishing to the Company such information regarding itself, the
Registrable Securities held by such Holder and the intended method of
distribution of such securities as shall be reasonably required to effect the
registration of the Registrable Securities. 


                    (g)
Cooperation. The principal executive officer of the Company, the principal
financial officer of the Company, the principal accounting officer of the
Company and all other officers and members of the management of the Company
shall cooperate fully in any offering of Registrable Securities hereunder,
which cooperation shall include, without limitation, the preparation of the
Registration Statement with respect to such offering and all other offering
materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants and potential investors. 


13






                    (h)
Records. The Company shall make available for inspection by the Holders
included in such Registration Statement, any Underwriter participating in any
disposition pursuant to such Registration Statement and any attorney, accountant
or other professional retained by the Holders included in such Registration
Statement or any Underwriter (each an “Inspector” and, collectively, the
“Inspectors”), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the “Records”), as shall be
necessary to enable them to exercise their due diligence responsibility, and
cause the Company’s officers, directors and employees to supply all information
reasonably requested by any of them in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors (and the Inspectors shall confirm their agreement
in writing in advance to the Company if the Company shall so request) unless
(x) the disclosure of such Records is necessary, in the Company’s judgment, to
avoid or correct a misstatement or omission in the Registration Statement, (y)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction after exhaustion of all appeals
therefrom or (z) the information in such Records was known to the Inspectors on
a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each Holder participating in an
offering agrees that it shall, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, promptly give notice to the
Company and allow the Company, at the Company’s expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential. In
the event that the Company is unsuccessful in preventing the disclosure of such
Records, such Holder agrees that it shall furnish only such portion of those
Records which it is advised by counsel is legally required and shall, at the
Company’s expense, exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded to those Records.  


                    (i)
Opinions and Comfort Letters. If a Registration Statement in respect of
Registrable Securities includes an underwritten public offering, the Company
shall furnish or cause to be furnished to the participating Holders and the managing
Underwriter or Underwriters such documents and certificates from the Company’s
independent public accountants and legal counsel, including an opinion of
counsel and customary comfort letters, as may be reasonably required pursuant
to the underwriting agreement related thereto. In the event no legal opinion is
to be delivered pursuant to the Underwriting Agreement, the Company shall
furnish to each Holder included in such Registration Statement, at any time
that such Holder elects to use a prospectus, an opinion of counsel to the
Company (based solely on the oral advice of the Commission) to the effect that
the Registration Statement containing such prospectus has been declared
effective and that no stop order is in effect. 


                    (j)
Earnings Statement. The Company shall comply with all applicable rules
and regulations of the Commission and the Securities Act, and make available to
its stockholders, as soon as practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 


14






                    (k)
Listing. The Company shall cause all Registrable Securities included in
any registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then
listed or designated or, if no such similar securities are then listed or
designated, in a manner reasonably satisfactory to the holders of the
majority-in-interest, on an as-converted to Common Stock basis, of the
Registrable Securities included in such Registration, provided, in each
case, that the applicable listing requirements are satisfied. 


                    (l)
FINRA. The Company shall cooperate with each Holder participating in the
offering and each Underwriter, if any, and their respective legal counsel in
connection with any filings required to be made with the Financial Industry
Regulatory Authority. 


                    (m)
Other Actions. The Company shall (i) take all other steps reasonably
necessary to effect the registration of the Registrable Securities contemplated
hereby and reasonably cooperate with the Holders of such Registrable Securities
to facilitate the disposition of such Registrable Securities pursuant thereto;
(ii) make all required filings of all prospectuses and Free Writing
Prospectuses with the Commission within the deadlines specified by the
Securities Act; and (iii) make all required filing fee payments in respect of
any Registration Statement or prospectus used under this Agreement (and any
offering covered thereby) within the deadlines specified by the Securities Act.



          3.2
Obligation to Suspend Distribution. Each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Sections 3.1(e)(ii), (iii) or (iv) such
Holder shall forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Holder’s receipt of the copies of the supplemented or amended
Prospectus or Free Writing Prospectus contemplated by Section 3.1(e)(i)
(or if no supplemental or amended prospectus or Free Writing Prospectus is
required, upon confirmation from the Company that use of the prospectus or Free
Writing Prospectus is once again permitted) and, if so directed by the Company,
such Holder shall deliver to the Company (at the Company’s expense) all copies,
other than permanent file copies then in such Holder’s possession, of the
prospectus or Free Writing Prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 3.1(b)
by the number of days during the period from and including the date of the
giving of such notice pursuant to Sections 3.1(e)(ii), (iii) or (iv)
to and including the date when the Holders of such Registrable Securities
participating in the offering under such Registration Statement shall have
received the copies of the supplemented or amended prospectus or Free Writing
Prospectus contemplated by and meeting the requirements of Section 3.1(e)
(or if no supplemental or amended prospectus or Free Writing Prospectus is
required, upon confirmation from the Company that use of the prospectus or Free
Writing Prospectus is once again permitted). 


          3.3
Registration Expenses. The Company shall bear all costs and expenses
incurred in connection with any registration of Registrable Securities under
this Agreement, and 


15






all expenses
incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees; (ii) fees
and expenses of compliance with securities or “blue sky” laws (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company’s internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees); (v) the fees and expenses incurred in connection with
the listing of the Registrable Securities as required by Section 3.1(k);
(vi) Financial Industry Regulatory Authority, Inc. fees; (vii) the fees and
disbursements of counsel for the Company and counsel for the Underwriter or
Underwriters and fees and expenses for independent certified public accountants
retained by the Company (including the expenses or costs associated with the
delivery of any opinions or comfort letters requested pursuant to Section
3.1(i)); (viii) the fees and expenses of any special experts retained by
the Company in connection with such registration; and (ix) the fees and expenses
of one legal counsel selected by the Holders of a majority-in-interest, on an
as-converted to Common Stock basis, of the Registrable Securities included in
such registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the Holders thereof, which underwriting discounts or selling
commissions shall be borne by such Holders. Additionally, in an underwritten
offering, all selling stockholders and the Company shall bear the expenses of
the underwriter, if any, pro rata in proportion to the respective amount of
shares each is selling in such offering. 


          3.4
Information. The Holders shall provide such information as may
reasonably be requested by the Company or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to Article II
and in connection with the Company’s obligation to comply with federal and
applicable state securities laws. 


ARTICLE IV

INDEMNIFICATION AND CONTRIBUTION 


          4.1
Indemnification by the Company. The Company agrees to indemnify and hold
harmless the Sponsor and each other Holder participating in an offering
pursuant to Sections 2.1, 2.2 or 2.3 hereunder, and each of their respective
officers, employees, Affiliates, directors, partners, members, attorneys and
agents, and each person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) the Sponsor and each
other Holder participating in such offering from and against any expenses,
losses, judgments, claims, damages or liabilities, or any action or proceeding
in respect thereof (including reasonable costs of investigation and reasonable
attorneys’ fees and expenses), whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material
fact contained in any Registration Statement under which the sale of such
Holder’s Registrable Securities was registered under the Securities Act
(including each preliminary prospectus), any prospectus filed under Rule 424
under the Securities Act, any Free Writing Prospectus or any other information
that is deemed under Rule 159 promulgated under the Securities Act to have been
conveyed to purchasers of securities at the time of sale of such securities
(including, without limitation, a contract of sale), or any amendment or
supplement  


16






thereto, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading under the circumstances such statements were made; and
the Company shall promptly reimburse any such indemnified party for any legal
and any other expenses reasonably incurred by such indemnified party in
connection with investigating and defending any such expense, loss, judgment,
claim, damage, liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such expense, loss, claim, damage or
liability arises out of or is based upon any untrue statement or allegedly
untrue statement or omission or alleged omission made in such Registration
Statement (including each preliminary prospectus), any prospectus filed under
Rule 424 under the Securities Act, any Free Writing Prospectus or any other
information that is deemed under Rule 159 promulgated under the Securities Act
to have been conveyed to purchasers of securities at the time of sale of such
securities (including, without limitation, a contract of sale), or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by a Holder participating in the offering
expressly for use therein. The Company also shall indemnify any Underwriter of
the Registrable Securities, their officers, Affiliates, directors, partners,
members and agents and each person who controls such Underwriter on
substantially the same basis as that of the indemnification provided above in
this Section 4.1. 


          4.2
Indemnification by Holders. Each Holder will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such Holder, indemnify and hold
harmless the Company, each of its directors and officers and each Underwriter
(if any), and each other Holder participating in the offering and each other
person, if any, who controls another participating Holder or such Underwriter
within the meaning of the Securities Act, against any expenses, losses,
judgments, claims, damages or liabilities, or any action or proceeding in
respect thereof (including reasonable costs of investigation and reasonable
attorneys’ fees and expenses), whether joint or several, insofar as such
expenses, losses, judgments, claims, damages or liabilities, or any action or
proceeding in respect thereof, arise out of or are based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in the
Registration Statement under which the sale of such Registrable Securities was
registered under the Securities Act, any preliminary prospectus, any prospectus
filed under Rule 424 under the Securities Act, any Free Writing Prospectus or
any other information that is deemed under Rule 159 promulgated under the
Securities Act to have been conveyed to purchasers of securities at the time of
sale of such securities (including, without limitation, a contract of sale), or
any amendment or supplement thereto, or arise out of or are based upon any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading under the
circumstances such statements were made, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such Holder participating in the offering expressly for use therein,
and shall reimburse the Company, its directors and officers, and each other
Holder participating in the offering or controlling person for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending any such expense, loss, judgment, claim, damage,
liability or action. Each Holder’s indemnification obligations hereunder shall
be several and not joint and shall be limited to the amount of any net proceeds
actually received by such Holder in the offering. 


17






          4.3
Conduct of Indemnification Proceedings. Promptly after receipt by any
person of any notice of any loss, claim, damage or liability or any action in
respect of which indemnity may be sought pursuant to Section 4.1 or 4.2,
such person (the “Indemnified Party”) shall, if a claim in respect
thereof is to be made against any other person for indemnification hereunder,
notify such other person (the “Indemnifying Party”) in writing of the loss,
claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified
Party to notify the Indemnifying Party shall not relieve the Indemnifying Party
from any liability which the Indemnifying Party may have to such Indemnified
Party hereunder, except and solely to the extent the Indemnifying Party is
actually prejudiced by such failure. If the Indemnified Party is seeking
indemnification with respect to any claim or action brought against the
Indemnified Party, then the Indemnifying Party shall be entitled to participate
in such claim or action, and, to the extent that it wishes, jointly with all
other Indemnifying Parties, to assume control of the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control
of the defense of such claim or action, the Indemnifying Party shall not be
liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel in addition to local counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the reasonable fees and
expenses of such counsel to be paid by such Indemnifying Party if, based upon
the written opinion of counsel of such Indemnified Party, representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, consent to entry of
judgment or effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or proceeding.  


          4.4
Contribution. 


                    (a)
Equitable Considerations. If the indemnification provided for in the
foregoing Sections 4.1 and 4.2 is unavailable to any Indemnified Party in
respect of any loss, claim, damage, liability or action referred to herein,
then each such 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 loss, claim, damage, liability or action in such proportion
as is appropriate to reflect the relative fault of the Indemnified Parties and
the Indemnifying Parties in connection with the actions or omissions which
resulted in such loss, claim, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of any Indemnified Party
and any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by such Indemnified  


18






Party or such
Indemnifying Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. 


                    (b)
Other Payments. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 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 Section 4.4(a). The amount paid or payable by an Indemnified
Party as a result of any loss, claim, damage, liability or action referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section
4.4, no Holder shall be required to contribute any amount in excess of the
dollar amount of the net proceeds (after payment of any underwriting fees,
discounts, commissions or taxes) actually received by such Holder from the sale
of Registrable Securities which gave rise to such contribution obligation. 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. 


ARTICLE V 

UNDERWRITING AND DISTRIBUTION


          5.1
Rule 144. The Company covenants that it shall use its reasonable best
efforts to file any reports required to be filed by it under the Securities Act
and the Exchange Act and shall use its reasonable efforts to take such further
action as the Holders may reasonably request, all to the extent required from
time to time to enable such Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission. 


ARTICLE VI

MISCELLANEOUS


          6.1
Other Registration Rights. Except as set forth in the Warrant Agreement,
the Company represents and warrants that no person, other than the Sponsor and
any Permitted Transferee who holds Registrable Securities has any right to
require the Company to register any shares of the Company’s capital stock for
sale or to include shares of the Company’s capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other person. 


          6.2
Assignment; No Third Party Beneficiaries; Additional Parties. This
Agreement and the rights, duties and obligations of the Company hereunder may
not be assigned or delegated by the Company in whole or in part. This Agreement
and the rights, duties and obligations of the Holders hereunder may be freely
assigned or delegated by such Holder in conjunction with and to the extent of
any transfer of Registrable Securities by any such Holder to a Permitted
Transferee. This Agreement and the provisions hereof shall be binding upon and
shall inure to the benefit of each of the parties hereto and their respective
successors and the permitted assigns of the Sponsor or other Holder or of any
assignee of the Sponsor or other 


19






Holder. This
Agreement is not intended to confer any rights or benefits on any persons that
are not party hereto other than as expressly set forth in Article IV and
this Section 6.2. The parties acknowledge that Brian Jacoby, who is an
Initial Holder, shall become a party to this Agreement at such time after the
date hereof as he delivers an executed copy of this Agreement to the Company. 


          6.3
Stock Splits, etc. The provisions of this Agreement shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof. 


          6.4
Notices. All notices, demands, requests, consents, approvals or other
communications required or permitted to be given hereunder or which are given
with respect to this Agreement shall be in writing and shall be personally
served, delivered by reputable air courier service with charges prepaid, or
transmitted by hand delivery, telegram, telex or facsimile, addressed as set
forth below, or to such other address as such party shall have specified most
recently by written notice. Notice shall be deemed given on the date of service
or transmission if personally served or transmitted by telegram, telex or
facsimile; provided, however, that
if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business
day. Notice otherwise sent as provided herein shall be deemed given on the next
business day following timely delivery of such notice to a reputable air
courier service with an order for next-day delivery. 


	
 

	
 


	
 

	
To the
  Company:


	
 

	
 


	
 

	
Trian
  Acquisition I Corp.


	
 

	
280 Park
  Avenue, 41st Floor


	
 

	
New York,
  New York 10017


	
 

	
Attn: Chief
  Legal Officer


	
 

	
 


	
 

	
with a copy
  to:


	
 

	
 


	
 

	
Paul, Weiss,
  Rifkind, Wharton & Garrison LLP


	
 

	
1285 Avenue
  of the Americas


	
 

	
New York,
  New York 10019


	
 

	
Attn: John
  C. Kennedy, Esq.


	
 

	
 


	
 

	
To the
  Sponsor:


	
 

	
 


	
 

	
Trian
  Acquisition I, LLC


	
 

	
280 Park
  Avenue, 41st Floor


	
 

	
New York,
  New York 10017


	
 

	
Attn: Edward
  P. Garden


	
 

	
 


	
 

	
To Trian
  Fund Management:


	
 

	
 


	
 

	
Trian Fund
  Management, L.P.


	
 

	
280 Park
  Avenue, 41st Floor


	
 

	
New York,
  New York 10017


	
 

	
Attn: Edward
  P. Garden


	
 

	
 


	
 

	
To each of
  the other Holders:





20






          at
such addresses as shall have been provided by such Holders to the Company. 


          6.5
Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a
part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible that is valid and enforceable. 


          6.6
Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which taken together
shall constitute one and the same instrument. 


          6.7
Entire Agreement. This Agreement (including all agreements entered into
pursuant hereto and all certificates and instruments delivered pursuant hereto
and thereto) constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede all prior and contemporaneous agreements,
representations, understandings, negotiations and discussions between the
parties, whether oral or written. 


          6.8
Modifications and Amendments. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless consented to in writing by
the Company and the holders of a majority-in-interest, on an as-converted to
Common Stock basis, of the Registrable Securities. 


          6.9
Titles and Headings. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement. 


          6.10
Waivers and Extensions. Any party to this Agreement may waive any right,
breach or default which such party has the right to waive, provided, however, that such waiver will not be effective
against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after
the right waived has arisen or the breach or default waived has occurred. Any
waiver may be conditional. No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof nor of any other agreement or provision herein
contained. No waiver or extension of time for performance of any obligations or
acts shall be deemed a waiver or extension of the time for performance of any
other obligations or acts. 


          6.11
Remedies Cumulative. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, the Sponsor or any other Holder may proceed to protect and enforce
its rights by suit in equity or action at law, whether for specific performance
of any term contained in this Agreement or for an injunction against the breach
of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any one
or more of such actions, without being required to post a bond. None of the
rights, powers or remedies conferred under this Agreement shall be mutually exclusive,
and each such right, power or remedy shall be cumulative and in addition to any
other right, power or 


21






remedy,
whether conferred by this Agreement or now or hereafter available at law, in
equity, by statute or otherwise. 


          6.12
Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by the laws of the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the application of the
substantive laws of any other jurisdiction. The parties hereto agree that any
action, proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of New
York or the United States District Court for the Southern District of New York,
and the parties hereto irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive. The parties hereto hereby waive any objection
to such exclusive jurisdiction and that such courts represent and inconvenient
forum. 


          6.13
Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the parties hereto in the negotiation,
administration, performance or enforcement hereof. 


[Remainder of page intentionally left blank.]


22






          IN
WITNESS WHEREOF, the parties have
caused this Agreement to be executed and delivered by their duly authorized
representatives as of the date first written above. 


	
 
	
 
	
 
	
 

	
 
	
COMPANY:

	
 
	
 
	
 
	
 

	
 
	
TRIAN ACQUISITION I CORP.

	
 
	
 
	
 
	
 

	
 
	
By:
	
/S/ DAVID I. MOSSÉ

	
 
	
 
	


	
 
	
 
	
Name:
	
David I. Mossé

	
 
	
 
	
Title:
	
General Counsel, Secretary and 

  Chief Compliance Officer

	
 
	
 
	
 
	
 

	
 
	
SPONSOR:

	
 
	
 
	
 
	
 

	
 
	
TRIAN ACQUISITION I, LLC

	
 
	
 
	
 
	
 

	
 
	
By:
	
/S/ EDWARD P. GARDEN

	
 
	
 
	


	
 
	
 
	
Name:
	
Edward P.
  Garden

	
 
	
 
	
Title:
	
Member

	
 
	
 
	
 
	
 

	
 
	
TRIAN FUND MANAGEMENT, L.P.

	 	 
	 	By: Trian Fund Management GP, LLC,

        General Partner

	
 
	
 
	
 
	
 

	
 
	
 
	
/S/ EDWARD P. GARDEN

	
 
	
 
	


	
 
	
 
	
Name:
	
Edward P.
  Garden

	
 
	
 
	
Title:
	
Member







	
 

	
 


	
 

	
INITIAL
  HOLDERS:


	
 

	
 


	
 

	
/S/ GEOFFREY C. BIBLE


	
 

	



	
 

	
Name:  Geoffrey
  C. Bible


	
 

	
 


	
 

	
/S/ GREG ESSNER


	
 

	



	
 

	
Name:  Greg
  Essner


	
 

	
 


	
 

	
/S/ CHAD FAUSER


	
 

	



	
 

	
Name:  Chad
  Fauser


	
 

	
 


	
 

	
/S/ JOSH FRANK


	
 

	



	
 

	
Name:  Josh
  Frank












	
 
	
 

	
 
	
 

	
 
	
/S/ KENNETH W. GILBERT

	
 
	


	
 
	
Name:  Kenneth
  W. Gilbert

	
 
	
 

	
 
	
/S/ RICHARD A. MANDELL

	
 
	


	
 
	
Name:  Richard
  A. Mandell

	
 
	
 

	
 
	
/S/ DAVID I. MOSSÉ

	
 
	


	
 
	
Name:  David
  I. Mossé

	
 
	
 

	
 
	
/S/ STUART ROSEN

	
 
	


	
 
	
Name:  Stuart
  Rosen

	
 
	
 

	
 
	
/S/ BRIAN L. SCHORR

	
 
	


	
 
	
Name:  Brian
  L. Schorr

	
 
	
 

	
 
	
/S/ JOEL E. SMILOW

	
 
	


	
 
	
Name:  Joel
  E. Smilow









SCHEDULE I


Geoffrey C. Bible

Greg Essner

Chad Fauser

Josh Frank

Kenneth W. Gilbert

Brian Jacoby

Richard A. Mandell

David Mosse

Stuart Rosen

Brian L. Schorr

Joel E. Smilow