EX 4.19
WARRANT AND REGISTRATION RIGHTS AGREEMENT
WARRANT AND REGISTRATION RIGHTS AGREEMENT, dated as of December 22, 1999
(this "Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation
(the "Company"), and certain holders of Warrant Certificates referred to below
(the "Investors").
WHEREAS, in connection with Amendment No. 5 (the "Amendment") to the Second
Amended and Restated Credit Agreement, dated as of December 14, 1998 (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among the Company, certain lenders (the "Lenders")
and ABN Amro Bank, N.V., as administrative agent, the Company has agreed to
issue certain Warrants (the "Warrants") evidenced by Warrant Certificates in the
form of Exhibit B to the Amendment (together with any certificates issued in
replacement or substitution therefor, the "Warrant Certificates") to purchase
shares of the Company's Common Stock, par value $1.00 per share (the "Common
Stock"), pursuant to the terms of such Warrants;
WHEREAS, in connection with the Amendment, the Company has agreed to
register for sale by the Investors the shares of Common Stock received by the
Investors upon exercise of the Warrants; and
WHEREAS, the Company and the Investors desire to set forth certain
agreements relating to the repurchase of the Warrants and the Common Stock
issuable upon exercise thereof.
NOW, THEREFORE, in consideration of the foregoing and the covenants of the
parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Certain Definitions. In this Agreement the following terms
shall have the following meanings:
"Accredited Investor" shall have the meaning set forth in Rule 501 of the
General Rules and Regulations promulgated under the Securities Act.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Applicable Law" means (a) all applicable common law and principles of
equity and (b) all applicable provisions of all (i) constitutions, statutes,
rules, regulations, ordinances and orders of governmental bodies, (ii)
authorizations, consents, approvals, licenses or exemptions of,
registrations or filings with, or reports or notices to, governmental bodies and
(iii) orders, decisions, judgments and decrees of all courts, administrative
agencies and arbitrators.
"Call Percentage" means (x) in the case of a repurchase pursuant to the
Loan Repayment Date having occurred, 100% and (y) in the case of a repurchase
occurring by virtue of the Deleveraging Condition having been met, 50%.
"Call Repurchase Price" in effect as of any date shall mean a per share
value equal to
(1) in the case of a repurchase pursuant to the Loan Repayment Date having
occurred, the higher of:
(a) the Market Price per share on such date and
(b) the Minimum Price per share; and
(2) in the case of any repurchase occurring by virtue of the Deleveraging
Condition having been met, the higher of
(a) (x) the Market Price per share on such date times (y) (i) if such
repurchase occurs prior to the first anniversary hereof, .80, (ii) if such
repurchase occurs on or after the first anniversary hereof but prior to the
second anniversary hereof, .90 or (iii) if such repurchase occurs on or
after the second anniversary hereof, 1 and
(b) the Minimum Price per share;
provided that in the case of the repurchase of unexercised Warrants, the above
per share prices shall be reduced by the Exercise Price (as defined in the
Warrant Certificates) per share.
"Change of Control" has the meaning assigned thereto in the Credit
Agreement.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Deleveraging Condition" means that (a) the Company's Senior Leverage Ratio
(as defined in the Credit Agreement) is less than 2.0 to 1.0, (b) the Company's
Leverage Ratio (as defined in the Credit Agreement) is less than 4.0 to 1.0 and
(c) the principal amount of all Obligations under the Credit Agreement does not
exceed $200,000,000 and the Lenders do not have an obligation to extend credit
to the Company under the Credit Agreement in an amount in excess of
$200,000,000.
"Designated Affiliate" means, as to any Lender, an Affiliate of such Lender
designated by such Lender to hold some or all of the Warrants issuable
hereunder.
"Effective Date" means the date the Amendment becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"Holders" shall mean (i) the Investors and (ii) each Person holding
Registrable Shares as a result of a transfer or assignment to that Person of
Registrable Shares other than pursuant to an effective registration statement or
Rule 144 (or any successor provision) under the Securities Act.
"Indemnified Party" shall have the meaning ascribed to it in Section 7(c)
of this Agreement.
"Indemnifying Party" shall have the meaning ascribed to it in Section 7(c)
of this Agreement.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset.
"Loan Repayment Date" means the date upon which: (i) all Obligations under
and as defined in the Credit Agreement shall have been irrevocably paid in full
in cash; (ii) no further obligations, contingent or otherwise) to the Agents or
any of the Lenders shall remain outstanding under the Credit Agreement or any of
the other Credit Documents (as defined in the Credit Agreement), other than any
contingent obligation of the Company to indemnify the Agents and the Lenders and
any other obligation which under the term of the Credit Documents survives the
repayment of the Obligations; and (iii) the Lenders' commitments to make Loans
and to issue Letters of Credit under the Credit Agreement shall have been
irrevocably terminated.
"Market Price" has the meaning assigned thereto in the Warrant
Certificates.
"Minimum Price" in effect as of any date shall mean $7 per share; provided
that upon any adjustment pursuant to Section 7(d) of the Warrant Certificates of
the Exercise Price (as defined in the Warrant Certificates) or the number of
Warrant Shares issuable upon the exercise of the Warrants (an "Adjustment"), the
Minimum Price will be adjusted upward or downward so that the result obtained by
multiplying (i) such Minimum Price prior to such Adjustment, by (ii) the number
of shares of Warrant Shares issuable pursuant to the Warrants immediately prior
to such Adjustment is equal to the result obtained by multiplying (iii) such
Minimum Price after such Adjustment, by (iv) the number of Warrant Shares
issuable pursuant to the Warrants immediately after such Adjustment.
"Person" shall mean an individual, corporation, partnership, limited
liability company, estate, trust, association, private foundation, joint stock
company or other entity.
"Put Repurchase Price" in effect as of any date shall mean the Market Price
on such date; provided that in the case of the repurchase of unexercised
Warrants, the above per share price shall be reduced by the Exercise Price (as
defined in the Warrant Certificates) per share.
The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Shares in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"Registrable Shares" shall mean the Warrant Shares issued upon exercise of
the Warrants; provided, however, that any such shares of Common Stock shall
cease to be Registrable Shares when (A) a registration statement with respect to
the sale of such shares shall have become effective under the Securities Act and
such shares shall have been disposed of in accordance with such registration
statement; (B) such shares shall have been sold in accordance with Rule 144; or
(C) such shares shall have been otherwise transferred and new certificates not
subject to transfer restrictions under the Securities Act and not bearing any
legend restricting further transfer shall have been delivered by the Company,
and no other applicable and legally binding restriction on transfer under the
federal securities laws shall exist.
"Registration Expenses" shall mean all out-of-pocket expenses (excluding
Selling Expenses) incurred by the Company in complying with Section 5 hereof,
including, without limitation, the following:
(a.) all registration and filing fees; fees and expenses of compliance with
federal and state securities laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with state
securities qualifications of the Registrable Shares under the laws of
such jurisdictions as the Holders may reasonably designate); printing
(including, without limitation, expenses of printing or engraving
certificates representing the Registrable Shares in a form eligible
for deposit with The Depository Trust Company and otherwise meeting
the requirements of any securities exchange on which they are listed
and of printing registration statements and prospectuses), messenger,
telephone, shipping and delivery expenses; fees and disbursements of
counsel for the Company; fees and disbursements of all independent
public accountants of the Company (including without limitation the
expenses of any annual or special audit and "cold comfort" letters
reasonably required by the managing underwriter); Securities Act
liability insurance if the Company so desires; fees and expenses of
other Persons reasonably necessary in connection with the
registration, including any experts, retained by the Company; fees and
expenses incurred in connection with the listing of the Registrable
Shares on each securities exchange on which securities of the same
class are then listed; and fees and expenses associated with any
filing with
the National Association of Securities Dealers, Inc. required to be
made in connection with the registration statement.
"Rule 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act, or any successor thereto, as the same shall be in effect at the
relevant time.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares.
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities 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 Shares" has the meaning assigned thereto in the Warrant
Certificates.
Section 2. Issuance of Warrants. On the Effective Date, in consideration
for the Lenders entering into the Loan Agreement, the Company shall issue to
each Lender (or its Designated Affiliate) a Warrant Certificate representing
Warrants to purchase the number of shares of Common Stock to which such Lender
is entitled pursuant to Section 3(c) of the Amendment.
Section 3. Representations and Warranties of the Company. The Company
represents and warrants to the Lenders and their Designated Affiliates that:
(a.) Corporate Existence and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Indiana, and is duly qualified as a foreign corporation
and authorized to do business in all jurisdictions wherein the
character of the properties owned or held under lease by it or the
nature of the business transacted by it makes such qualification
necessary, except for those jurisdictions in which the failure so to
qualify or be authorized, singly or in the aggregate, have not had and
will not have a materially adverse effect upon the business, financial
position or results of operations of the Company and its Subsidiaries
taken as a whole, and each of the Company and each of its Subsidiaries
has all corporate powers, and all material governmental licenses,
authorizations, consents and approvals, required to carry on its
respective businesses as presently conducted.
(b.) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company of this Agreement
and each Warrant
Certificate are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or
in respect of, or filing or recording with, any governmental body,
agency or official and do not (i) contravene, or constitute a default
under, any provision of Applicable Law or of the certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the
Company, or (ii) result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries.
(c.) Binding Effect. Each of this Agreement and each Warrant Certificate is
a valid and binding obligation of the Company.
(d.) Capitalization of the Company; Reservation of Shares; Other Matters
Relating to Capital Stock.
(i.) As of the Effective Date, the authorized capital stock of the
Company consists solely of 30,000,000 shares of Common Stock
and 5,000,000 shares of special stock ("Special Stock")], of
which (assuming no Lender or Designated Affiliate exercises
any Warrant) 12,698,593 shares of Common Stock and 817,412
shares of Special Stock are issued and outstanding. All of
such outstanding capital stock is validly issued, fully paid
and nonassessable and has been issued in compliance with all
applicable securities laws. As of the Effective Date, except
as set forth on Schedule 3(d) and except for the Warrants,
there are no existing options, convertible securities,
warrants, calls, pledges, transfer restrictions (except
restrictions imposed by federal and state securities laws),
liens, rights of first offer, rights of first refusal,
antidilution provisions or commitments of any character
relating to any issued or unissued shares of capital stock of
the Company. Except for the Warrants or as set forth on
Schedule 3(d), there are no preemptive or other preferential
rights applicable to the issuance and sale of equity
securities (or securities convertible or exercisable into or
exchangeable for equity securities) of the Company.
(ii.) As of the Effective Date, sufficient shares of authorized but
unissued shares of Common Stock have been reserved by
appropriate corporate action in connection with the
prospective exercise of the Warrants. The issuance of the
Warrants will not (x) require any further corporate action by
the stockholders or directors of the Company, (y) be subject
to any statutory or contractual preemptive rights of any
present or future stockholders of the Company or (z) conflict
with any provision of any agreement to which the Company is a
party or by which the Company is bound. All shares of Common
Stock issuable upon exercise of the
Warrants in accordance with their terms will be validly
authorized, fully paid and nonassessable.
(iii.) Neither the Company nor any of its Subsidiaries has violated
any applicable federal or state securities laws in connection
with the offer, sale and issuance of any of its capital stock
or securities. The offer, sale and issuance of the Warrants
and the shares of Common Stock issuable upon exercise thereof
do not require registration under the Securities Act or any
applicable federal or state securities laws.
Section 4. Compliance with Securities Laws; Legends.
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(a.) Investment Intent. Each Lender represents and warrants to the Company
that it is acquiring the Warrants for its own account, with no present
intention of selling or otherwise distributing the same to the public.
(b.) Status of Securities. Each Lender has been informed by the Company
that the Warrants and Warrant Shares have not been and, except as
contemplated by this Agreement, will not be registered under the
Securities Act or under any state securities laws and are being
offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering.
(c.) Status of Lenders. Each Lender represents and warrants to the Company
that it is an Accredited Investor.
(d.) Transfer of Warrants and Warrant Shares.
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(i.) Without limiting any other permitted transfers contemplated by
this Agreement, the Warrants and Warrant Shares may be
transferred pursuant to (1) public offerings registered under
the Securities Act, (2) Rule 144 or 144A promulgated under the
Securities Act (or any similar rule then in force) or (3)
subject to the conditions set forth in Section 4(d)(ii), any
other legally available means of transfer.
(ii.) In connection with any transfer of any Warrants or Warrant
Shares described in Section 4(d)(i)(3), a Holder desiring to
transfer Warrants or Warrant Shares shall deliver written
notice to the Company describing in reasonable detail the
proposed transfer, together with an opinion of counsel (which,
to the Company's reasonable satisfaction, is knowledgeable in
securities law matters) to the effect that such transfer may
be effected without registration of such shares under the
Securities Act; provided that no such opinion shall be
required if there shall have been delivered to the Company an
opinion of counsel that no subsequent transfer of such
Warrants or Warrant Shares shall require registration under
the Securities Act. Promptly upon receipt of any opinion
described in the proviso to the preceding sentence, the
Company shall prepare and deliver in connection with the
consummation of the proposed transfer, new certificates for
the Warrants or Warrant Shares being transferred that do not
bear the legend set forth in Section 4(d)(iii).
(iii.) Except as provided in Sections 5(j) and 4(d)(ii), each
certificate for any Warrants or Warrant Shares shall be
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
(e.) In addition to the legend required by Section 4(d)(iii), each
certificate for any Warrants or Warrant Shares shall be imprinted with
a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS
AGREEMENT DATED AS OF DECEMBER 22, 1999, ENTERED INTO AMONG THE
COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF
WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN
REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE
PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS.
Any legend endorsed on a certificate pursuant to this Section 4(e) shall be
removed if the securities represented thereby shall have been effectively
registered under the Securities Act and sold pursuant to an effective
registration statement or have been sold in compliance with Rule 144.
Section 5. Registration.
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(a.) Company Registration.
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(i.) If, after the earlier of (x) December 22, 2000 and (y) the
Loan Repayment Date, the Company shall determine to Register
any of its equity securities either for its own account or for
the account of any other Person, other than a Registration
relating solely to benefit plans, or
a Registration relating solely to a Commission Rule 145
transaction, or a Registration on any registration form which
does not permit secondary sales or does not include
substantially the same information as would be required to be
included in a registration statement covering the sale of
Registrable Shares, the Company will:
(A) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions,
if any, in which the Company intends to attempt to
qualify such securities under applicable state securities
laws); and
(B) include in such Registration (and any related
qualification under state securities laws or other
compliance), and in any underwriting involved therein,
all the Registrable Shares specified in a written request
or requests, made by the Holders within ten (10) business
days after the giving of the written notice from the
Company described in clause (i) above, except as set
forth in Section 5(a)(ii) below. Such written request
shall specify the amount of Registrable Shares intended
to be disposed of by a Holder and may specify all or a
part of the Holder's Registrable Shares.
Notwithstanding the foregoing, if, at any time after giving such written notice
of its intention to effect such Registration and prior to the effective date of
the registration statement filed in connection with such Registration, the
Company shall determine for any reason not to Register such equity securities
the Company may, at its election, give written notice of such determination to
the Holders and thereupon the Company shall be relieved of its obligation to
Register such Registrable Shares in connection with the Registration of such
equity securities (but not from its obligation to pay Registration Expenses to
the extent incurred in connection therewith as provided herein).
(ii) Underwriting. If the Registration of which the Company gives
notice is for a Registered public offering involving an
underwriting, the Company shall so advise each of the Holders
as a part of the written notice given pursuant to Section
5(a)(i)(A). In such event, the right of each of the Holders to
Registration pursuant to this Section 5(a) shall be
conditioned upon such Holders' participation in such
underwriting and the inclusion of such Holders' Registrable
Shares in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such Registration
shall (together with the Company and any other Person
distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for
the underwriting by the Company or such other Persons, as the
case may be. Such underwriting agreement will contain such
representations and warranties by the Company and such other
terms and provisions as are customarily contained in
underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in
Section 7 hereof. Notwithstanding any other provision of this
Section 5(a), if the representative determines that marketing
factors require a limitation on
the number of shares to be underwritten, the Company shall so
advise all holders of securities requesting Registration, and
the number of shares of securities that are entitled to be
included in the Registration and underwriting shall be
allocated in the following manner: the number of shares that
may be included in the Registration and underwriting by each
of the Holders and by each stockholder of the Company (other
than the Holders) that on the date hereof has rights to
piggyback registration upon a Company Registration shall be
reduced, on a pro rata basis (based on the number of shares
held by such Holder or stockholder), by such minimum number of
shares as is necessary to comply with such limitation. If any
of the Holders or any officer, director or stockholder of the
Company other than a Holder disapproves of the terms of any
such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any
Registrable Shares or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such
Registration.
(b) Shelf Registration. (i) On or before the earlier of (x) December 22,
2000 and (y) the Loan Repayment Date, the Company shall file a "shelf"
registration statement pursuant to Rule 415 under the Securities Act
(the "Shelf Registration") permitting a continuous or delayed offering
of the Registrable Shares. The Company shall (A) use its best efforts
to have the Shelf Registration declared effective on or before two
weeks have elapsed since the date of filing thereof or as soon as
practicable thereafter and (B) subject to the Company's Suspension
Right (defined below), use its best efforts to keep the Shelf
Registration continuously effective from the date such Shelf
Registration is declared effective until the date when all shares of
Common Stock issued or issuable upon exercise of the Warrants cease to
be Registrable Shares in accordance with the definition thereof in
order to permit the prospectus forming a part thereof to be usable by
Holders during such period.
(ii) Subject to the Company's Suspension Right, the Company shall
supplement or amend the Shelf Registration (A) as required by the
registration form utilized by the Company or by the instructions
applicable to such registration form or by the Securities Act or
the rules and regulations promulgated thereunder and (B) to
permit the disposition of Registrable Shares in the manner
requested by any Holder. The Company shall furnish to the Holders
of the Registrable Shares to which the Shelf Registration relates
copies of any such supplement or amendment sufficiently in
advance (but in no event less than three business days in
advance) of its use and/or filing with the Commission to allow
the Holders a meaningful opportunity to comment thereon.
(c) Suspension Right. Notwithstanding the provisions of Sections 5(a) and
(b), if the Board of Directors of the Company determines in good faith
that the filing of a registration statement or any supplement or
amendment thereto would interfere with the negotiation or completion
of a material transaction or event being contemplated by the Company,
the Company shall have the right to (the "Suspension Right"), by
notice to the Holders in accordance with Section 11(d), defer the
filing of a registration statement to effect the Shelf Registration or
suspend the rights of the Holders to make sales pursuant to the Shelf
Registration
for such a period of time as the Board of Directors may determine;
provided that no such period of deferral or suspension may exceed 45
consecutive days and that all such periods of deferral or suspension
may not exceed 90 days in the aggregate during any period of 12
consecutive months.
(d) Notices. The Company shall promptly notify the Holders of Registrable
Shares covered by the Shelf Registration of the occurrence of the
following events:
(i) when the Shelf Registration or post-effective amendment
thereto filed with the Commission has become effective;
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration;
(iii) the suspension of sales under the Shelf Registration by the
Company in accordance with Section 5(c) above;
(iv) the Company's receipt of any notification of the suspension of
the qualification of any Registrable Shares covered by the
Shelf Registration for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that results
in the registration statement evidencing the Shelf
Registration or prospectus relating to Registrable Shares or
any document incorporated therein by reference containing an
untrue statement of material fact or omitting to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading during the
distribution of securities.
The Company agrees to use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of any such registration statement or any state
qualification at the earliest possible moment.
(e) Registration Statement; Amendments and Supplements. The Company shall
provide to the Holders of Registrable Shares covered by the Shelf
Registration, at no cost to such Holders, a copy of the related
registration statement and any amendment thereto used to effect the
Registration of the Registrable Shares, each prospectus contained in
such registration statement or post-effective amendment and any
amendment or supplement thereto and such other documents as the
requesting Holders may reasonably request in order to facilitate the
disposition of the Registrable Shares covered by such registration
statement. The Company consents to the use of each such prospectus and
any supplement thereto by the Holders in connection with the offering
and sale of the Registrable Shares covered by such registration
statement or any amendment thereto. The Company shall also file a
sufficient number of copies of the prospectus and any post-effective
amendment or supplement thereto with The New York Stock Exchange, Inc.
(or, if the Common Stock is no longer listed thereon, with such other
securities exchange or market on which the Common Stock is then
listed) so as to enable the Holders to have the benefits of the
prospectus delivery provisions of Rule 153 under the Securities Act.
(f) State Securities Laws. The Company agrees to use commercially
reasonable efforts to cause the Registrable Shares covered by a
registration statement to be registered with or approved by such state
securities authorities as may be necessary to enable the Holders to
consummate the disposition of such shares pursuant to the plan of
distribution set forth in the registration statement; provided,
however, that the Company shall not be obligated to take any action to
effect any such Registration, qualification or compliance pursuant to
this Section 5 in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such Registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction.
(g) Remediation of Misstatements or Omissions. Subject to the Company's
Suspension Right, if any event, fact or circumstance requiring an
amendment to a registration statement relating to the Registrable
Shares or supplement to a prospectus relating to the Registrable
Shares shall exist, immediately upon becoming aware thereof the
Company agrees to notify the Holders and prepare and furnish to the
Holders a post-effective amendment to the registration statement or
supplement to the prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, the prospectus
will not contain an 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.
(h) Listing on Exchange. The Company agrees to use its best efforts
(including the payment of any listing fees) to obtain the listing of
all Registrable Shares covered by the registration statement on each
securities exchange on which securities of the same class are then
listed.
(i) Compliance with Securities Laws. The Company agrees to use its best
efforts to comply with the Securities Act and the Exchange Act in
connection with the offer and sale of Registrable Shares pursuant to a
registration statement, and, as soon as reasonably practicable
following the end of any fiscal year during which a registration
statement effecting a Registration of the Registrable Shares shall
have been effective, to make available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(j) Share Certificates. The Company agrees to: (x) cooperate with the
selling Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Shares to be sold pursuant to a
Registration and not bearing any Securities Act legend; and (y) enable
certificates for such Registrable Shares to be issued for such numbers
of shares and registered in such names as the Holders may reasonably
request at least two business days prior to any sale of Registrable
Shares. Each Holder requesting delivery of certificates not bearing
any Securities Act legend shall provide appropriate representations to
the Company of such Holder's intent to comply with all conditions
necessary for sale pursuant to a Registration, including prospectus
delivery requirements.
Section 6. Expenses of Registration. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to
Section 5 hereof. All Selling Expenses incurred in connection with the offer and
sale of Registrable Shares by any of the Holders shall be borne by the Holder
offering or selling such Registrable Shares. The Company shall pay the fees and
expenses (not to exceed $25,000) of one counsel to the Holders in connection
with the preparation of the Shelf Registration.
Section 7. Indemnification.
(a) The Company will indemnify each Holder, each Holder's officers and
directors, each person controlling such Holder within the meaning of
Section 15 of the Securities Act and each underwriter, if any, of the
Company's securities covered by any Registration hereunder against all
expenses, claims, losses, damages and liabilities (including
reasonable legal fees and expenses), arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement or prospectus relating to the
Registrable Shares, or any amendment or supplement thereto, or based
on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that the Company will not
be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with information furnished in writing
to the Company by such Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its directors and each
of its officers who signs the registration statement and each person
who controls the Company within the meaning of Section 15 of the
Securities Act against all claims, losses, damages and liabilities
(including reasonable legal fees and expenses) arising out of or based
on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement or prospectus, or
any amendment or supplement thereto, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement or prospectus
in reliance upon and in conformity with information furnished in
writing to the Company by such Holder for inclusion therein.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, but the omission to so notify the
Indemnifying Party shall not relieve it from any liability which it
may have to the Indemnified Party pursuant to the provisions of this
Section 7 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense
of such action, including the employment of counsel to be chosen by
the Indemnifying Party, which counsel must be reasonably satisfactory
to the Indemnified Party, and payment of expenses. The Indemnified
Party shall have the right to employ its own counsel in any such case,
but the legal fees and expenses of such counsel shall be at the
expense of the Indemnified Party, unless the employment of such
counsel shall have been authorized in writing by the Indemnifying
Party in connection with
the defense of such action, or the Indemnifying Party shall not have
employed counsel to take charge of the defense of such action, or the
Indemnified Party shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to the Indemnifying Party (in which case
the Indemnifying Party shall not have the right to direct the defense
of such action on behalf of the Indemnified Party), in any of which
events such fees and expenses shall be borne by the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 7 is unavailable
to a party that would have been an Indemnified Party under this
Section 7 in respect of any expenses, claims, losses, damages and
liabilities referred to herein, then each party that would have been
an Indemnifying Party hereunder shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such expenses, claims, losses,
damages and liabilities in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand
and such Indemnified Party on the other in connection with the
statement or omission which resulted in such expenses, claims, losses,
damages and liabilities, as well as any other relevant equitable
considerations. The relative fault 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 the Indemnifying
Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each holder of Registrable
Shares agrees that it would not be just and equitable if contribution
pursuant to this Section were determined by pro rata allocation or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7(d).
(e) 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.
(f) In no event shall any Holder be liable for any expenses, claims,
losses, damages or liabilities pursuant to this Section 7 in excess of
the net proceeds to such Holder of any Registrable Shares sold by such
Holder.
Section 8. Information to be Furnished by Holders. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 5 hereof. If any Holder fails to provide the
Company with such information within three weeks of the Company's request, the
Company's obligations under Section 5 hereof with respect to such Holder or the
Registrable Shares owned by such Holder shall be suspended until such Holder
provides such information.
Section 9. Rule 144 Sales.
--------------
(a) The Company covenants that it will file any and all reports required
to be filed by the Company under the Exchange Act so as to enable any
Holder to sell Registrable Shares pursuant to Rule 144 under the
Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Shares pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with such Holder to
facilitate the timely preparation and delivery of certificates
representing Registrable Shares to be sold and not bearing any
Securities Act legend, if deemed appropriate, and enable certificates
for such Registrable Shares to be for such number of shares and
registered in such names as the selling Holder may reasonably request,
provided that such request is made at least two business days prior to
any sale of Registrable Shares.
Section 10. Repurchases. Reference in this Section 10 to issued Warrant
Shares shall mean Warrant Shares theretofore issued upon the exercise of any
Warrants, together with any Warrant Shares or other securities issued with
respect to such shares pursuant to any Organic Change (as defined in the Warrant
Certificates).
(a) Obligation of Company. During the period of 60 days following the
occurrence of a Change of Control, from time to time the Company
will, on the date (not less than 10 or more than 20 days from the
date of such notice) designated in a notice (a "Put Notice") from
any Holder to the Company, repurchase from such Holder all or the
portion of the Warrants and/or the number of issued Warrant
Shares held by such Holder designated in such notice for: (i) in
the case of all or a portion of the Warrants, an amount equal to
the product of (x) the Put Repurchase Price in effect on the date
of such notice and (y) the number of Warrant Shares represented
by the Warrants on the date of such notice or the portion of the
Warrants to be repurchased; and (ii) in the case of issued
Warrant Shares, an amount equal to the product of (x) the Put
Repurchase Price in effect on the date of such notice and (y) the
number of Warrant Shares to be repurchased.
Upon receipt by the Company of any notice pursuant to this Section 10(a),
the Company shall, within five days thereof, send a copy of such notice to each
Holder of Warrants and issued Warrant Shares held by such Holders. Thereafter,
each other Holder of a Warrant and/or such Warrant Shares shall be entitled to
exercise its rights pursuant to the preceding paragraph by giving not less than
10 days' notice of such request to repurchase. The date designated for such
repurchase shall be the same day designated by the Holder initially requesting
such repurchase.
On each date designated for the repurchase of Warrants and/or Warrant
Shares pursuant to this Section 10(a), each appropriate Holder shall assign to
the Company the Warrant or portion thereof and/or Warrant Shares being
repurchased, without any representation or warranty (other than that such Holder
has good and valid title thereto free and clear of Liens, claims and
restrictions of any kind), against payment therefor by wire transfer to an
account in a Lender located in the United States designated by such Holder for
such purpose.
The Company shall not be obligated under this Section 10(a) to repurchase
any Warrant or portion thereof and/or Warrant Shares to the extent such a
repurchase would violate or cause
a default under the corporate laws of the Company's state of incorporation or
any agreement, instrument or indenture in existence on the date hereof to which
the Company is a party, as determined by an opinion of Independent Counsel;
provided, however, that the Put Repurchase Price shall become immediately due
and payable from time to time to the extent such payment does not result in such
a violation of, or default with respect to, such law or any such agreement,
instrument or indenture; provided, further, that the Company shall use its
reasonable best efforts to have any such restriction removed, including, without
limitation, recapitalizing the Company. The Company shall repurchase any Warrant
or portion thereof and/or Warrant Shares requested to be, but not (due to
operation of this paragraph), repurchased pursuant to this Section 10(a) before
repurchasing any other Warrant or portion thereof and/or Warrant Shares pursuant
to this Section 10(a).
If more than one Holder has exercised its rights pursuant to this Section
10(a) and part but not all of the Put Repurchase Price then due and owing are
paid to such Holders pursuant to the preceding paragraph, then any Holder may
rescind its repurchase election under this Section 10(a) and, except as
otherwise provided in the last sentence of the preceding paragraph, payment of
the Put Repurchase Price to any such Holders that do not rescind shall be made
pro rata based on the number of Warrant Shares with respect to which such rights
have been exercised and not rescinded (either directly or as to shares
represented by Warrants), notwithstanding the order in which the Company
received the Put Notices from such Holders and the dates designated in such Put
Notices for the payment of the Put Repurchase Price; provided, however, that
such pro rata payments by the Company shall not relieve the Company of its
obligation to pay all of the Put Repurchase Price as provided in the preceding
paragraph. Any obligation to repurchase securities of the Company issued after
the date of this Warrant shall be subordinated to any obligation under this
Section 10(a).
(b) Option of Company. The Company shall have the right, but subject to
the terms and conditions of the Credit Agreement, upon the giving of
written notice during the period of 30 days following (x) the Loan
Repayment Date or (y) the Company having achieved the Deleveraging
Condition, to repurchase from each Holder the Call Percentage of such
Holder's Warrants and the Call Percentage of the issued Warrant Shares
held by such Holder for: (i) in the case of Warrants, an amount equal
to the product of (x) the Call Repurchase Price in effect on the date
of such notice and (y) the number of Warrant Shares represented by the
Warrants on the date of such notice; and (ii) in the case of issued
Warrant Shares, an amount equal to the product of (x) the Call
Repurchase Price in effect on the date of such notice and (y) the
number of issued Warrant Shares; provided, however, that any
additional payment that may be required by the terms of Section 10(c)
shall be made. In effecting all such repurchases, the Company shall
repurchase Warrants and Warrant Shares and pay the aggregate Call
Repurchase Price to be paid by it ratably such that each Holder sells
a ratable portion of Warrants and Warrant Shares and receives a
ratable portion of such aggregate Call Repurchase Price based upon the
aggregate number of Warrants and Warrant Shares of all Holders (other
than Warrant Shares no longer subject to this Section by virtue of
Section 10(d)).
Such notice of repurchase shall (i) designate the date of repurchase, which
date shall be not less than 60 or more than 120 days from the date of such
notice, (ii) state the Call Repurchase Price and number of Warrant Shares
subject to the Warrants and/or the number of issued Warrant Shares and (iii)
indicate the method by which calculations were made. On the date so designated,
each Holder shall assign to the Company the Warrants and/or the number of
Warrant Shares being repurchased, without any representation or warranty (other
than that such Holder has good and valid title thereto free and clear of Liens,
claims and restrictions of any kind), against payment therefor by wire transfer
to an account in a Lender located in the United States designated by such Holder
for such purpose.
(c) Adjustment to Repurchase Payment. If (i) more than twenty-five percent
(25%) of the Common Stock Deemed Outstanding (as defined in the
Warrant Certificates) is sold in any transaction or series of related
transactions and/or (ii) any Organic Change (as defined in the Warrant
Certificates) shall occur and/or (iii) a Change of Control shall occur
and/or (iv) the Company shall sell Common Shares or other securities
of the Company in an offering required to be registered under the
Securities Act, in any case within 270 days after the date of a
repurchase pursuant to Section 10(b), for a consideration per share
(determined by reference to all the consideration received in such
transaction by the stockholders of the Company or which would be
received if all consideration received by the Company in such
transaction were distributed to the stockholders (in each case net of
all reasonable transaction fees and expenses)), as determined by an
independent firm of investment bankers, reduced, where and to the
extent a Holder has not exercised its Warrants, by the Exercise Price
(the "Stockholder's Consideration Per Share"), greater than the
consideration per share which was paid to the Holders on the date of
such repurchase, then immediately upon such event the Company shall
pay to such Holders an amount equal to the product of (x) the number
of Warrant Shares repurchased and/or represented by that portion of
the Warrant repurchased, and (y) the difference between the
Stockholder's Consideration Per Share and the consideration per share
received by the Holders in such repurchase. The calculation of the
amount to be paid a Holder pursuant to this Section 10(c) shall be
made after taking into account any adjustment to Exercise Price (as
defined in the Warrant Certificates) pursuant to any stock split,
stock dividend, share combination or other similar transaction
occurring subsequent to the repurchase but prior to any subsequent
event pursuant to clauses (i)-(iv) above. The obligation of the
Company under this Section 10(c) shall survive any repurchase of the
Warrant or the Warrant Shares issued upon the exercise thereof.
(d) Termination of Repurchase Options. Notwithstanding anything to the
contrary herein, no Holder of Warrant Shares that have been sold
pursuant to an effective registration statement or sold to the public
pursuant to Rule 144 may submit a Put Notice under Section 10(a) as to
any such Warrant Shares and the Company may not exercise its
repurchase option under Section 10(b) as to any such Warrant Shares.
Section 11. Miscellaneous.
-------------
(a) Governing Law. This Agreement shall be governed in all respects by the
internal laws of the State of Illinois.
(b) Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subject matter hereof.
(c) Amendment. No supplement, modification, waiver or termination of this
Agreement (including without limitation any amendment or modification
of any
defined term used herein which is defined in any other agreement or
instrument referred to herein) shall be binding against any Person
unless executed in writing by such Person or a predecessor-in-interest
of such Person.
(d) Notices, etc. Each notice, demand, request, request for approval,
consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required
or desired to be given or made under this Agreement shall be in
writing (except as otherwise provided in this Agreement), and shall be
effective and deemed to have been received when delivered in person,
when sent by fax with receipt acknowledged, five (5) days after having
been mailed by certified or registered United States mail, postage
prepaid, return receipt requested, or the next business day after
having been sent by a nationally recognized overnight mail or courier
service, receipt requested. Notices shall be addressed as follows: (x)
if to any Holder, at such address or fax number as such Holder shall
have furnished the Company in writing (or, if such Holder is a Lender,
at such Holder's address set forth in the Loan Agreement), or (y) if
to the Company, at the address or fax number of its principal
executive offices set forth below its signature hereon or at such
other address or fax number as the Company shall have furnished to the
Investors. Any notice or other communication required to be given
hereunder to a Holder in connection with a registration may instead be
given to the designated representative of such Holder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be executed by fewer than all of the
parties hereto, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
(f) Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full
force and effect without said provision.
(g) Captions. Captions are for descriptive purposes only and shall not
control or alter the meaning of this Agreement as set forth in the
text.
(h) Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns. Whether or
not any express assignment has been made in this Agreement, the
provisions of this Agreement that are for the Lenders as holders of
Registrable Shares are also for the benefit of, and shall be
enforceable by, all subsequent holders of Registrable Shares.
(i) Remedies. The Company and the Investors acknowledge that there would
be no adequate remedy at law if any Person fails to perform any of its
obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of
the obligations of another party under this Agreement in accordance
with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction.
(j) Attorneys' Fees. If the Company or any Holder brings an action to
enforce its rights under this Agreement, the prevailing party in the
action shall be entitled to recover its costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses, incurred
in connection with such action, including any appeal of such action.
(k) No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders of Registrable Shares in this
Agreement.
(l) Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery
of this Agreement and any transfer of any Warrant or Common Stock
issued upon exercise thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
TOKHEIM CORPORATION
By:
-------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE, INDIANA, NATIONAL ASSOCIATION
By:__________________________________
Name:
Title:
CREDIT LYONNAIS, CHICAGO BRANCH
By:__________________________________
Name:
Title:
BANKERS TRUST COMPANY
By:__________________________________
Name:
Title:
ABN AMRO BANK N.V.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:__________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
MERCANTILE BANK N.A.
By:__________________________________
Name:
Title:
THE PROVIDENT BANK
By:__________________________________
Name:
Title:
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:
------------------------------------------
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:
------------------------------------------
Name:
Title:
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager
By:
------------------------------------------
Name:
Title:
OCTAGON INVESTMENT PARTNERS II, LLC
By:
------------------------------------------
Name:
Title:
FINOVA CAPITAL CORPORATION
By:
------------------------------------------
Name:
Title:
IMPERIAL BANK
By:
------------------------------------------
Name:
Title:
NATEXIS BANQUE BFCE
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A GROUP, NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By:Indosuez Capital, as Portfolio Advisor
By:__________________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital, as Portfolio Advisor
By:__________________________________
Name:
Title:
ALLIANCE INVESTMENT OPPORTUNITIES
FUND, L.L.C.
By: ALLIANCE INVESTMENT
OPPORTUNITIES MANAGEMENT, L.L.C.,
as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT
L.P., as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, as General Partner
By:__________________________________
Name:
Title:
AMSOUTH BANK
By:__________________________________
Name:
Title:
ARES LEVERAGED INVESTMENT FUND II,
L.P.
By: ARES Management II, L.P. its General
Partner
By:__________________________________
Name:
Title:
Schedule 3(d)
[to be completed by the Company]
