U.S. OFFICE PRODUCTS COMPANY
REGISTRATION RIGHTS AGREEMENT
Dated as of June 10, 1998
TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. Background..........................................................................................1
2. Definitions.........................................................................................1
3. Registration........................................................................................7
3.1 Demand Registration......................................................................7
(a) Requests........................................................................7
(b) Obligation to Effect Registration...............................................7
(c) Shelf Registration..............................................................7
(d) Effective Registration Statement................................................8
(e) Pro Rata Allocation.............................................................8
(f) Inclusion of Other Securities in Demand Registration............................8
3.2 Piggyback Registration...................................................................9
3.3 Registration Procedures.................................................................11
3.4 Underwritten Offerings..................................................................17
(a) Underwritten Offerings Exclusive...............................................17
(b) Underwriting Agreement.........................................................17
(c) Selection of Underwriters......................................................18
(d) Hold Back Agreements...........................................................18
3.5 Preparation; Reasonable Investigation...................................................19
3.6 Other Registrations.....................................................................19
3.7 Indemnification.........................................................................19
(a) Indemnification by the Company.................................................19
(b) Indemnification by the Sellers.................................................20
(c) Notices of Claims, etc.........................................................21
(d) Other Indemnification..........................................................22
(e) Other Remedies.................................................................22
(f) Officers and Directors.........................................................23
3.8 Expenses.......................................................................................23
4. Miscellaneous......................................................................................23
4.1 Rule 144; Legended Securities; etc......................................................23
4.2 Amendments and Waivers..................................................................23
4.3 Nominees for Beneficial Owners..........................................................24
4.4 Successors, Assigns and Transferees.....................................................24
4.5 Notices.................................................................................24
4.6 No Inconsistent Agreements..............................................................26
4.7 Remedies; Attorneys' Fees...............................................................26
4.8 Severability............................................................................26
4.9. Headings................................................................................26
4.10. Counterparts............................................................................27
4.11. Governing Law...........................................................................27
4.12 No Third Party Beneficiaries............................................................27
4.13 Consent to Jurisdiction.................................................................27
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
June 10, 1998, among U.S. Office Products Company, a Delaware corporation (the
"Company"), and CDR-PC Acquisition, L.L.C., a Delaware limited liability company
(the "Purchaser").
1. Background. (a) The Company is a party to an Investment
Agreement, dated as of January 12, 1998 (as amended, the "Investment
Agreement"), with the Purchaser, pursuant to which the Company agreed to sell to
the Purchaser and the Purchaser agreed to purchase from the Company for an
aggregate purchase price of $270 million (the "Investment"), upon the terms and
subject to the conditions set forth therein, (x) 9,092,106 shares of Common
Stock (as such number of shares may be adjusted as contemplated by the letter
agreement, dated the date hereof, between the Company and the Purchaser, the
"Shares"), (y) Special Warrants representing the right to acquire a number of
shares of Common Stock equal to the difference between (i) 24.9% of the sum of
(A) the outstanding shares of Common Stock as of the Closing Date after giving
effect to the issuance of the Shares and the exercise of the Special Warrants,
and assuming the conversion into Common Stock of all the 2001 Notes outstanding
on the Closing Date at the conversion price resulting from adjustments made as a
result of the Tender Offer and the Distributions and (B) the number of any
shares of Contingent Stock that are issued, and (ii) the number of Shares and
(z) Warrants to purchase one share of Common Stock for each Share so purchased
and for each share into which the Special Warrants become exercisable.
In order to induce the Purchaser to enter into the Investment
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Purchaser and its direct and indirect
transferees. The execution and delivery of this Agreement is a condition to the
Purchaser's obligations pursuant to the Investment Agreement.
(b) This Agreement shall become effective with respect to any
Registrable Securities upon the issuance or sale of Registrable Securities
pursuant to the Investment Agreement. This Agreement shall remain in effect upon
the assignment or transfer of Registrable Securities by the Purchaser or a
Holder to an Affiliate, a Distributee or other successors, assigns and
transferees of Purchaser of such Holder pursuant to Section 4.4.
2. Definitions. For purposes of this Agreement, the following
terms have the following respective meanings:
"2001 Notes" mean all of the Company's issued and outstanding
5 1/2% Convertible Subordinated Notes due 2001 issued pursuant to an Indenture,
dated as of February 7, 1996, between the Company and State Street Bank and
Trust Company.
"Additional Shares" means shares of Common Stock (other than
Warrant Shares and Special Warrant Shares) acquired by Purchaser after the
Closing Date, to the extent that the acquisition of such shares is not
prohibited by the Investment Agreement.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling, Controlled by or under common Control
with such first Person. "Control" means the power to direct or cause the
direction of management or policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
Any director, member of management or other employee of the Company or any of
its Subsidiaries who would not otherwise be an Affiliate of the Purchaser shall
not be deemed to be an Affiliate of the Purchaser.
"Agreement" is defined in the first paragraph of this
Agreement.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
to close.
"Closing Date" means the date the Investment is made under the
Investment Agreement.
"Common Stock" means the Common Stock, par value of $.001 per
share, of the Company.
"Company" is defined in the first paragraph of this Agreement.
"Contingent Stock" means Common Stock issued after the Closing
Date pursuant to (i) the Amendment to Stock Purchase Agreement, dated as of June
20, 1996, by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇ or (ii) any security,
option, warrant, call, subscription, right, contract, commitment, arrangement or
understanding in existence on January 12, 1998 or June 10, 1998 but not
disclosed on the Revised Option Schedule, dated June 10, 1998
and delivered to the Purchaser on such date, listing options, warrants,
convertible securities and other rights relating to capital stock of the
Company.
"DTC" means the Depository Trust Company.
"Distributee" means any person that is a member, stockholder
or partner of Purchaser, or any person that is a member, stockholder or partner
of a Distributee to which Registrable Securities are transferred or distributed
by Purchaser or Distributee.
"Distributions" is defined in the Investment Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
thereunder which shall be in effect at the time. Any reference to a particular
section thereof shall include a reference to the corresponding section, if any,
of any such successor federal statute, and the rules and regulations thereunder.
"Holder" means any holder of Registrable Securities, including
an Affiliate, a Distributee or other successors, assigns and transferees of
Purchaser or a Holder that has received Registrable Securities pursuant to
Section 4.4.
"Investment" is defined in Section 1(a).
"Investment Agreement" is defined in Section 1(a).
"Legacy Agreement" means the Subscription Agreement, dated as
of March 28, 1996, between the Company and Legacy Capital Fund, Inc., as in
effect on January 12, 1998.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any natural person, firm, partnership,
association, corporation, company, trust, business trust, governmental entity or
other entity.
"Postponement Period" is defined in Section 3.3(p).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or supplemented
by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement and all
other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
"Purchaser" is defined in the introduction to this Agreement.
"Registrable Securities" means (a) the Shares, (b) the
Additional Shares, (c) the Warrant Shares, (d) the Warrants, (e) the Special
Warrant Shares, (f) the Special Warrants and (g) any securities issued or
issuable with respect to any Shares, Additional Shares, Warrants or Special
Warrants referred to in the foregoing clauses (a) through (g), (i) upon any
conversion or exchange thereof, (ii) by way of stock dividend or other
distribution, stock split or reverse stock split or (iii) in connection with a
com bination of shares, recapitalization, merger, consolidation, exchange offer
or other reorganization. As to any particular Registrable Securities, once
issued 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
disposed of in accordance with such Registration State ment, (B) such securities
shall have been distributed to the public in reliance upon Rule 144, (C) subject
to the provisions of Section 4.1(b)(ii), such securities shall have been
otherwise transferred, new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar state
law then in force or (D) such securities shall have been acquired by the
Company. In determining the number of Registrable Securities outstanding at any
time or whether the Holders of the requisite number of Registrable Securities
have taken any action hereunder and in calculating the number of Registrable
Securities for all other purposes under this Agreement, each Warrant and Special
Warrant shall be deemed to have been exercised (to the fullest extent then
determinable) and such calculation shall include the number of Warrant Shares
and Special Warrant Shares then deliverable upon the exercise of such Warrant or
Special Warrant (to the fullest extent then determinable).
"Registration Expenses" All fees and expenses incident to the
performance of or compliance with the provisions of this Agreement, whether or
not any registration statement is filed or becomes effective, including, without
limitation, all (i) registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering, (B) fees and expenses of compliance with state
securities or blue sky laws (including, without limitation, fees and
disbursements of counsel for the underwriter or underwriters in connection with
blue sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in Section 3.3(e)), and (C) fees and other expenses
associated with the listing of the Warrants, Warrant Shares, Special Warrants,
Special Warrant Shares and Additional Shares on the Nasdaq Stock Market and any
other applicable exchange, (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with DTC and of printing prospectuses), (iii) fees and
disbursements of all independent certified public accountants referred to in
Section 3.3 (including, without limitation, the reasonable expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (iv) the fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Rule 2720 of the NASD Rules of Conduct, (v) liability insurance
under the Securities Act or any other securities laws, if the Company desires
such insurance, (vi) fees and expenses of all attorneys, advisers, appraisers
and other persons retained by the Company or any Subsidiary of the Company,
(vii) internal expenses of the Company and its Subsidiaries (including, without
limitation, all salaries and expenses of officers and employees of the Company
and its Subsidiaries performing legal or accounting duties), (viii) the expense
of any annual audit, (ix) the expenses relating to printing, word processing and
distributing all registration statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement and (x) the reasonable out-of-pocket expenses of the
Holders of the Registrable Securities being registered in such registration
incurred in connection therewith including, without limitation, the reasonable
fees and disbursements of not more than one counsel (together with appropriate
local counsel) chosen by the Holders of a majority of the Registrable Securities
to be included in such Registration Statement. "Registration Expenses" shall not
include any underwriting discounts or commissions or any transfer taxes payable
in respect of the sale of Registrable Securities by the Holders thereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 (or any successor provision) under
the Securities Act.
"Rule 145" means Rule 145 (or any successor provision) under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time. Any reference to a particular section thereof
shall include a reference to the corresponding section, if any, of any such
successor federal statute, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
"Shares" is defined in Section 1(a).
"Special Registration" means the registration of shares of
equity securities and/or options or other rights in respect thereof to be
offered solely to directors, members of management, employees, consultants or
sales agents, distributors or similar representatives of the Company or its
direct or indirect Subsidiaries, solely on Form S-8 or any successor form.
"Special Warrants" is defined in the Investment Agreement.
"Special Warrant Shares" means shares of Common Stock issuable
upon exercise of the Special Warrants.
"Subsidiary" means, with respect to any Person, any
corporation or Person, a majority of the outstanding voting stock or other
equity interests of which is owned, directly or indirectly, by that Person.
"Tender Offer" is defined in the Investment Agreement.
"underwritten registration" or "underwritten offering" means a
registration in which securities of the Company (including Registrable
Securities) are sold to an underwriter for reoffering to the public.
"Warrants" means warrants entitling the holder thereof to
purchase one share of Common Stock for each Share and Special Warrant purchased
by the Purchaser pursuant to the Investment Agreement, on the terms and subject
to the conditions set forth in Exhibit 2 thereof.
"Warrant Shares" means shares of Common Stock issuable upon
exercise of the Warrants.
3. Registration.
3.1 Demand Registration.
(a) Requests. Subject to the provisions of Section 3.6, at any
time or from time to time as of the date hereof, Holders of not less than 25% of
the then outstanding Registrable Securities shall have the right to make written
requests that the Company effect up to four registrations under the Securities
Act of all or part of the Registrable Securities of the Holders making such
request, which requests shall specify the intended method of disposition thereof
by such Holders, including whether the registration requested is for an
underwritten offering. For a registration to be underwritten, a majority of the
Holders requesting registration (as measured by ownership of Registrable
Securities) must so request. The Company shall not be required to effect more
than four registrations under this Section 3.1.
(b) Obligation to Effect Registration. Within 10 days after
receipt by the Company of any request for registration pursuant to Section
3.1(a), the Company shall promptly give written notice of such requested
registration to all Holders, and thereupon will use its best efforts to effect
the registration under the Securities Act of
(i) the Registrable Securities which the Company has been so
requested to register pursuant to Section 3.1(a), and
(ii) all other Registrable Securities which the Company has
been requested to register by the Holders thereof by written request
given to the Company within 10 days after the Company has given such
written notice (which request shall specify the intended method of
disposition of
such Registra ble Securities),all to the extent required to permit the
disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered.
(c) Shelf Registration. If requested by Holders of a majority
of the Registrable Securities as to which registration has been requested
pursuant to this Section 3.1, and if the Company is eligible to file such
Registration Statement on Form S-3, the Registration Statement covering such
Registrable Securities shall provide for the sale by the Holders thereof of the
Registrable Securities from time to time on a delayed or a continuous basis
under Rule 415 under the Securities Act. If more than one underwritten offering
is requested under any particular shelf registration, each such additional
underwritten offering shall constitute a separate "demand" registration for
purposes of Section 3.1(a).
(d) Effective Registration Statement. A registration requested
pursuant to Section 3.1(a) shall not be deemed to have been effected unless it
is declared effective by the SEC and remains effective for the period specified
in Section 3.3(b). Notwithstanding the preceding sentence, a registration
requested pursuant to Section 3.1(a) that does not become effective after the
Company has filed a Registration Statement with respect thereto by reason of the
refusal to proceed of the Holders of Registrable Securities requesting the
registration, or by reason of a request by a majority of the Selling Holders
participating in such registration that such registration be withdrawn, shall be
deemed to have been effected by the Company at the request of such Holders.
(e) Pro Rata Allocation. If the Holders of a majority of the
Registrable Securities for which registration is being requested pursuant to
Section 3.1(a) deter mine, based on consultation with the managing underwriters
or, in an offering which is not underwritten, with an investment banker, that
the number of securities to be sold in any such offering should be limited due
to market conditions or otherwise, Holders of Registrable Securities proposing
to sell their securities in such registration shall share pro rata in the number
of securities being offered (as determined by the Holders holding a majority of
the Registrable Securities for which registration is being re quested in
consultation with the managing underwriters or investment banker, as the case
may be) and registered for their account, such sharing to be based on the number
of Registrable Securities as to which registration was requested by such
Holders.
(f) Inclusion of Other Securities in Demand Registration.
(i) The Company may, subject to the remainder of this Section
3.1(f), elect to include in any Registration Statement made pursuant to Section
3.1(a), authorized but unissued shares of Common Stock or shares of Common Stock
held as treasury stock.
(ii) Notwithstanding any other provision of this Section 3(f),
the Company shall not register securities (other than Registrable Securities)
for sale for the account of any Person (other than the Company) in any
registration requested pursuant to Section 3.1(a) unless (x) permitted to do so
by the written consent of the Holders holding at least a majority of the
Registrable Securities proposed to be sold in such registration or (y) required
pursuant to Section 10 of the Legacy Agreement.
(iii) If any Registration Statement made pursuant to Section
3.1(a) involves an underwritten offering and the managing underwriter of such
offering (or, in connection with an offering that is not underwritten, an
investment banker) shall advise the Company that, in its view, the number of
securities requested to be included in such Registration exceeds the largest
number that can be sold in an orderly manner in such offering within a price
range acceptable to the selling Holders, the Company shall include in such
Registration:
(A) first, all shares of Common Stock requested to
be included in such Registration by the selling Holders as provided in Section
3.1(e); and
(B) second, to the extent that the number of
securities to be registered pursuant to clause (A) is less than the largest
number that can be sold in an orderly manner in such offering within a price
range acceptable to the selling Holders, securities that the Company proposes to
register (except to the extent otherwise required pursuant to Section 10 of the
Legacy Agreement); and
(C) third, to the extent that the number of shares
registered pursuant to clauses (A) and (B) is less than the largest number that
can be sold in an orderly manner in such offering within a price range
acceptable to the selling Holders, the securities requested to be included by
any other holders (if permitted by the Holders pursuant to Section 3.2(f)(ii)).
The securities to be included in any such registration pursuant to clause (C)
shall be allocated on a pro rata basis among all holders requesting that
securities be included in such registration pursuant to such clause on the basis
of the number
of securities requested to be included by such holders.
3.2 Piggyback Registration. If the Company at any time
proposes to register any of its common stock under the Securities Act (other
than a Registration relating solely to the sale of securities to participants in
a Company stock plan, on Form S-4 with respect to any merger, consolidation or
acquisition, pursuant to Section 3.1 or pursuant to a Special Registration),
whether or not for sale for its own account, and the registration form to be
used may be used for the registration of Registrable Securities, it shall each
such time give prompt written notice to all Holders of Registrable Securities of
its intention to do so and, upon the written request of any Holder of
Registrable Securities given to the Company within 10 days after the Company has
given any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such holder and the intended method of disposition
thereof), the Company will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof, to the extent required to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be registered, provided that:
(a) if, at any time after giving written notice of its
intention to register any securities 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
securities, the Company may, at its election, give written notice of
such determination to each Holder that was previously notified of such
registration and, thereupon, shall not register any Registrable
Securities in connection with such registration (but shall nevertheless
pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of any Holders to request that a
registration be effected under Section 3.1; and
(b) if the Company shall be advised in writing by the managing
underwriters (or, in connection with an offering which is not
underwritten, by an investment banker) that in their or its opinion the
number of securities requested to be included in such registration
(whether by the Company, pursuant to this Section 3.2 or pursuant to
any other rights granted by the Company to a holder or holders of its
securities to request or demand such registration or in clusion of any
such securities in any such registration) exceeds the number of such
securities which can be
sold in such offering in an orderly manner within a price range that
is acceptable to the Company, the Company shall include in such
Registration:
(i) first, all shares of Common Stock that the
Company proposes to register for its own account (except to
the extent otherwise required pursuant to Section 10 of the
Legacy Agreement); and
(ii) second, to the extent that the number of shares
registered pursuant to clause (i) is less than the largest
number that can be sold in an orderly manner in such offering
within a price range acceptable to the Company, (x) the
Registrable Securities requested to be included by the Holders
and (y) in the case of a registration initially requested or
demanded by a holder or holders of securities other than the
Registrable Securities, the securities requested or demanded
to be registered by such other holders; and
(iii) third, to the extent that the number of shares
registered pursuant to clauses (i) and (ii) is less than the
largest number that can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the
securities requested to be included by any other holders,
and the Company shall so provide in any registration agreement
hereinafter entered into with respect to any of its securities.
The securities to be included in any such registration
pursuant to clause (ii) or (iii) shall be allocated on a pro rata basis among
all holders requesting that securities be included in such registration pursuant
to such clause on the basis of the number of securities requested to be included
by such holders.
No registration effected under this Section 3.2 shall relieve
the Company from its obligation to effect registrations upon request under
Section 3.1. The Company shall not be obligated to cause any "piggyback"
registration to be underwritten.
3.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 3.1 and 3.2, the
Company shall:
(a) prepare and file with the SEC, as soon as practicable, a
Registration Statement with respect to such securities, make all
required filings with the NASD and use best efforts to cause such
Registration Statement to become effective at the earliest possible
date;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith and such other documents as may be necessary to
keep such Registration Statement effective until the earlier of (i) 30
days after the effective date of such Registration Statement (360 days
in the case of a Shelf Registration pursuant to Section 3.1(c)) or (ii)
the consummation of the disposition by the Holders of all the
Registrable Securities covered by such Registration Statement and
otherwise comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration
Statement;
(c) furnish to counsel (if any) selected by the Holders of a
majority of the Registrable Securities covered by such Registration
Statement and to counsel for the underwriters in any underwritten
offering copies of all documents proposed to be filed with the SEC in
connection with such registration a reasonable time prior to the
proposed filing thereof and give reasonable consideration in good faith
to any comments of such Holders, counsel and underwriters. The Company
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto pursuant to a registration under
Section 3.1(a) if the Holders of a majority of the Registrable
Securities covered by such Registration Statement, their counsel, or
the underwriters, if any, shall reasonably object in writing;
(d) furnish to each seller of Registrable Securities, without
charge, such reasonable number of conformed copies of such Registration
Statement and of each such amendment and supplement thereto (in each
case, including all exhib its (including exhibits incorporated by
reference), financial statements, schedules and all documents
incorporated therein, deemed to be incorporated therein by reference or
filed therewith, except that the Company shall not be obligated to
furnish any seller of securities with more than two copies of such
exhibits and documents), such number
of copies of the Prospectus included in such Registration Statement
(including each preliminary prospectus and any summary prospectus) in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to
facilitate the disposition of the securities owned by such seller;
(e) use its best efforts to register or qualify and cooperate
with the Holders of Registrable Securities, the underwriters and their
respective counsels in connection with the registration or
qualification (or exemption from such registration or qualification) of
the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as each seller shall
request; provided, however, that where Registrable Securities are
offered other than through an underwritten offering, the Company agrees
to cause its counsel to perform blue sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 3.3(e); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be effective hereunder and do any and all
other acts and things which may be necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
securities owned by such seller, except that the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified,
subject itself to taxation in any juris diction wherein it is not so
subject, or take any action which would subject it to general service
of process in any jurisdiction wherein it is not so subject;
(f) in connection with an underwritten public offering only,
furnish to each seller of Registrable Securities a signed counterpart,
addressed to the sellers, of
(i) an opinion of counsel for the Company experienced
in securities law matters, dated the effective date of the
Registration Statement, and
(ii) a "cold comfort" letter signed by the
independent public accountants who have issued an audit report
on the Company's financial statements included in the
Registration Statement, subject to such seller having executed
and delivered to the independent public accountants such
certificates and documents as such accountants shall
reasonably request,
covering substantially the same matters with respect to the
Registration Statement (and the Prospectus included therein) and, in
the case of such accoun tants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten public offerings of
securities;
(g) (i) notify each Holder of Registrable Securities subject
to such Registration Statement if such Registration Statement, at the
time it or any amendment thereto became effective, (x) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading upon discovery by the Company of such material
misstatement or omission or (y) upon discovery by the Company of the
happening of any event as a result of which the Company believes there
would be such a material misstatement or omission, and, as promptly as
practicable, prepare and file with the SEC a post-effective amendment
to such registration statement and use best efforts to cause such
post-effective amendment to become effective such that such
registration statement, as so amended, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (ii) notify each Holder of Registrable Securities
subject to such Registration Statement, at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act,
if the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a 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 upon discovery by the
Company of such material misstatement or omission or upon discovery by
the Company of the happening of any event as a result of which the
Company believes there would be a material misstatement or omission,
and, as promptly as is practicable, prepare and furnish to such Holder
a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such secu rities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading;
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement of the Company complying with the provisions of Section 11(a)
of the Securities Act and Rule 158 under the Securities Act (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold
to an underwriter or to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to an underwriter or
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of the
relevant Registration Statement, which statements shall cover said
12-month periods;
(i) promptly notify each Holder of any Registrable Securities
covered by such Registration Statement, their counsel and the
underwriters (i) when such Registration Statement, or any
post-effective amendment to such Registration Statement, shall have
become effective, or any amendment of or supplement to the Prospectus
used in connection therewith shall have been filed, (ii) of any request
by the SEC to amend such Registration Statement or to amend or
supplement such Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of
such Registration Statement or of any order preventing or suspending
the use of any preliminary prospectus or the initiation or threatening
of any proceedings for any of such purposes, (iv) of the suspension of
the qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any of such
purposes and (v) if at any time when a Prospectus is to be required by
the Securities Act to be delivered in connection with the sale of the
Registrable Securities, the representations and warranties of the
Company contained in any agreement (including the underwriting
agreement contemplated in Section 3.4(b) below), to the knowledge of
the Company, cease to be true and correct in any material respect;
(j) use its best efforts to prevent the issuance of any order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Securities covered thereby for sale in any jurisdiction,
and, if any such order is issued, to obtain the withdrawal of any such
order at the earliest possible moment;
(k) if requested by the managing underwriter, if any, or the
Holders of a majority of the Registrable Securities being sold in
connection with an underwriting offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter, if any, or such Holders reasonably request to
be included therein to comply with applicable law and (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(l) cooperate with the Holders and the managing underwriter,
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends whatsoever and
shall be in a form eligible for deposit with DTC, and enable such
Registrable Securities to be in such denominations and registered in
such names as the underwriters, if any, or Holders may reasonably
request at least two business days prior to any sale of Registrable
Securities in a firm commitment underwritten public offering;
(m) use its best efforts to cause the Registrable Securities
covered by a Registration Statement to be registered with, and to
obtain the consent or approval of, each governmental agency or
authority, whether federal, state, local or foreign, which may be
required to effect such registration or the offering or sale in
connection therewith or to enable the selling Holders to offer, or to
consummate the disposition of, the Registrable Securities subject to
such Registration Statement, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which
case the Company will cooperate in all reasonable respects with the
filing of the Registration Statement and the granting of such
approvals;
(n) prior to the effective date of the Registration Statement,
(i) provide the registrar for the Common Stock or such other
Registrable
Securities with printed certificates for such securities in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for such
securities; and
(o) cause the Warrants, Warrant Shares, Special Warrants and
Special Warrant Shares to be listed on the NASDAQ NMS (or such other
automated trading system or exchange as shall be the primary trading
system or exchange for the Common Stock) in the event that the
Registrable Securities covered by such Registration Statement include
any Warrants, Warrant Shares, Special Warrants or Special Warrant
Shares not already so listed; and
(p) have the right -- if the Board of Directors of the
Company, in its good faith judgment, determines that any Registration
of shares of Common Stock should not be made or continued because it
would materially interfere with any material financing, acquisition,
corporation reorganization, merger, or other transaction involving the
Company or any of its subsidiaries (a "Valid Business Reason") -- (i)
to postpone filing a Registration Statement until such Valid Business
Reason no longer exists, but in no event for more than 90 days, and
(ii) to cause any Registration Statement that has already been filed to
be withdrawn and its effectiveness terminated or to postpone amending
or supplementing such Registration Statement until such Valid Business
Reason no longer exists, but in no event for more than 90 days (the
"Postponement Period"); provided, however, that in no event shall the
Company be permitted to postpone or withdraw a Registration Statement
within 190 days after the expiration of the Postponement Period.
The Company may require each Holder of any Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such Holder and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law in connection therewith. Each such Holder agrees
to furnish promptly to the Company all infor mation required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
The Company agrees not to file or make any amendment to any
Registration Statement with respect to any Registrable Securities, or any
amendment of or supplement to the Prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the Company, without
the consent of such seller, such consent not to be unreasonably
withheld, except that no such consent shall be required for any disclosure that
is required by law.
By the acquisition of Registrable Securities, each Holder
shall be deemed to have agreed that upon receipt of any notice from the Company
pursuant to Sec tion 3.3(g) or (p), such Holder will promptly discontinue such
Holder's disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Holder shall have
received, in the case of clause (i) of Section 3.3(g), notice from the Company
that such Registration Statement has been amended, as contemplated by Section
3.3(g); in the case of clause (ii) of Section 3.3(g), copies of the supplemented
or amended Prospectus contemplated by Section 3.3(g); or, in the case of Section
3.3(p), the time period specified has elapsed or such Holder has received notice
from the Company that the Postponement Period has been terminated. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, in such
Holder's possession of the Prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event that the Company shall give any
such notice, the period mentioned in Section 3.3(b) shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of any Registrable
Securities covered by such Registration Statement shall have received the copies
of the supplemented or amended Prospectus contemplated by Section 3.3(g).
3.4 Underwritten Offerings. The provisions of this Section 3.4
do not establish additional registration rights but instead set forth procedures
applicable, in addition to those set forth in Sections 3.1 through 3.3, to any
registration that is an underwritten offering.
(a) Underwritten Offerings Exclusive. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, only
securities that are to be distributed by the underwriters may be included in the
registration.
(b) Underwriting Agreement. If requested by the underwriters
for any underwritten offering by Holders pursuant to a registration requested
under Section 3.1, the Company shall enter into an underwriting agreement with
such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Holders of a majority of the
Registrable Securities to
be covered by such registra tion and to the underwriters and to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in agree ments of this type, including,
but not limited to, indemnities to the effect and to the extent provided in
Section 3.7, provisions for the delivery of officers' certificates, opinions of
counsel and accountants' "cold comfort" letters, and hold-back arrangements. The
Holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the agreements on the
part of, the Company to and for the benefit of such underwriters be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement shall
also be conditions precedent to the obligations of such Holders. No such Holder
shall be re quired by the Company to make any representations or warranties to,
or agreements with, the Company or the underwriters other than as set forth in
Section 3.4(d) and representations, warranties or agreements regarding such
Holder and such Holder's in tended method of distribution.
(c) Selection of Underwriters. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, the Holders
of a majority of the Registrable Securities to be registered pursuant to such
offering shall have the right to select one or more underwriters to administer
the offering, subject to the consent of the Company, which shall not be
unreasonably withheld. If the Company at any time proposes to register any of
its securities under the Securities Act for sale for its own account and such
securities are to be distributed by or through one or more underwriters, the
Company shall have the right to select one or more underwriters to administer
the offering, subject to the consent of the Holders of a majority of Registrable
Securities to be registered pursuant to such offering, which shall not be
unreasonably withheld. In all cases in this Section 3.4(c), at least one of the
underwriters chosen by the Holders or the Company shall be an underwriter of
nation ally recognized standing.
(d) Hold Back Agreements. If and whenever the Company proposes
to register any of its equity securities under the Securities Act, whether or
not for its own account (other than pursuant to a Special Registration), or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, each Holder,
if required by the managing underwriter in an underwritten offering, agrees by
acquisition of such Registrable Securities not to effect (other than pursuant to
such registration) any public sale or distribution, including, but not limited
to, any sale pursuant to Rule 144, of any Registrable Securities, any other
equity
securities of the Company or any securities convertible into or exchangeable or
exercisable for any equity securities of the Company during the 10 days prior
to, and for 90 days after, the effective date of such registration, to the
extent timely notified in writing by the Company or the managing underwriter,
and the Company agrees to cause each holder of any equity security, or of any
security conver tible into or exchangeable or exercisable for any equity
security, of the Company pur chased from the Company at any time other than in a
public offering to enter into a similar agreement with the Company. The
foregoing provisions shall not apply to any Holder if such Holder is prevented
by applicable statute or regulation from entering into any such agreement;
provided, however, that any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect any public sale or
distribution of any applicable class of Registrable Securities commencing on the
date of sale of such applicable class of Registrable Securities unless it has
provided 45 days prior written notice of such sale or distribution to the
underwriter or underwriters. The Company further agrees not to effect (other
than pursuant to such registration or pursuant to a Special Registration) any
public sale or distribution, or to file any Registration Statement (other than
such registration or a Special Registration) covering any, of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the 10 days prior to, and for 90 days after, the
effective date of such registration if required by the managing underwriter.
3.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each Registration Statement registering
Registrable Securities under the Securities Act, the Company shall give the
Holders of such Registrable Securities so to be registered and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such Registration Statement,
each Prospectus included therein or filed with the SEC, and each amendment
thereof or supplement thereto, and shall give each of them such access to all
pertinent financial, corporate and other documents and properties of the Company
and its Subsidiaries, and such opportunities to discuss the business of the
Company with its officers, directors, employees and the independent public
accountants who have issued audit reports on its financial statements as shall
be necessary, in the opinion of such Holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.6 Other Registrations. If and whenever the Company is
required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to Section 3.1 or 3.2, and if such
registration shall not have been withdrawn or abandoned, the Company shall not
be obligated to and shall not file any Registration Statement with respect to
any of its securities (including Registrable Securities) under the Securities
Act (other than a Special Registration), whether of its own accord or at the
request or demand of any holder or holders of such securities, until a period of
180 days shall have elapsed from the effective date of such previous
registration, provided that the Company shall not be excused from filing a
registration statement by virtue of this Section 3.6 more than once in a 360 day
period.
3.7 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, the Company shall indemnify and hold harmless the seller of
such securities, its directors, officers, and employees, each other person who
participates as an underwriter, broker or dealer in the offering or sale of such
securities and each other person, if any, who controls such seller or any such
participating person within the meaning of either Sec tion 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which such seller or any such
director, officer, employee, participating person or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such securities were registered under the Securities Act, any Prospectus or
preliminary prospectus included therein, or any amendment or supplement thereto,
or (ii) any omission or alleged omission to state a material fact required to be
stated in any such Registration Statement, Prospectus, preliminary prospectus,
amendment or supplement or necessary to make the statements therein not
misleading; and the Company shall reimburse such seller and each such director,
officer, employee, participating person and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defend ing any such loss, claim, liability, action or proceeding as such
expenses are incurred; provided that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or omission made in any such
Registration Statement, Prospectus, preliminary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such
seller or participating person expressly for use in the preparation thereof.
(b) Indemnification by the Sellers. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, each of the prospective sellers of such securities, will
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such Registration Statement, and each
other person, if any, who controls the Company or any such participating person
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which the Company or any such director, officer, em ployee,
participating person or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such securities were
registered under the Securities Act, any Prospectus or preliminary prospectus
included therein, or any amendment or supple ment thereto, or any omission or
alleged omission to state a material fact with respect to such seller required
to be stated in any such Registration Statement, Prospectus, preliminary
prospectus, amendment or supplement or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by such
seller expressly for use in the preparation of any such Registration Statement,
Prospectus, preliminary prospectus, amendment or supplement; provided that the
liability of each such seller shall be in proportion to and limited to the net
amount received by such seller (after deducting any underwriting discount and
expenses) from the sale of Registrable Securities pursuant to such Registration
Statement.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim re ferred to in the preceding paragraphs of this Section 3.7,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party hereunder, give prompt written notice to the
latter of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided therein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 3.7 unless the failure to provide prompt written notice shall cause
actual prejudice to the indemnifying party. In case any such action is brought
against an indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to retain counsel reasonably satisfactory to such
indemnified party to defend against such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel and the
payment of such fees by the indemnifying party or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party has not retained counsel to defend
such proceeding, in which case (under any of such clauses (i), (ii) or (iii)) it
is understood that (x) the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties and (y) such firm shall be designated in writing by the
Holders of a majority of the Registrable Securities included in such
Registration Statement in the case of parties indemnified pursuant to Section
3.7(a) and by the Company in the case of parties indemnified pursuant to Section
3.7(b). All fees and expenses that an indemnified party is entitled to receive
from an indemnifying party under this Section 3.7 shall be reimbursed as they
are incurred, provided that each such indemnified party shall promptly repay
such fees and expenses if it is finally judicially determined that such
indemnified party is not entitled to indemnification hereunder. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of such indemnified party, which consent shall not be unreasonably
withheld, consent to entry of any judgment or enter into any settlement of any
pending or threatened action in respect of which any 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 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) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 3.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any federal or state law or regulation of
governmental authority other than the Securities Act.
(e) Other Remedies. If for any reason the foregoing indemnity
is unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or 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
Company or the Holders of Registrable Securities covered by the Registration
Statement in question and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 3.7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph of this Section 3.7 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. 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. No party shall be liable for contribution under this Section
3.7(e) except to the extent and under such circumstances as such party would
have been liable to indemnify under this Section 3.7 if such indemnification
were enforceable under applicable law.
(f) Officers and Directors. As used in this Section 3.7, the
terms "officers" and "directors" shall include the partners of Holders which are
partnerships and the members of Holders which are limited liability companies.
3.8 Expenses. The Company shall pay all Registration Expenses
in connection with each registration of Registrable Securities pursuant to this
Section 3.
4. Miscellaneous.
4.1 Rule 144; Legended Securities; etc. (a) The Company shall
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company is not required to file such reports, it shall, upon the request of
any Holder, make publicly available such information as necessary to permit
sales pursuant to Rule 144 or Rule 145), and shall take such further action as
any Holder may reasonably request, all to the extent required from time to time
to enable such holder to sell shares of Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 or Rule 145. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) The Company shall issue new certificates for Registrable
Securities without a legend restricting further transfer if (i) such securities
have been sold to the public pursuant to an effective Registration Statement
under the Securities Act (other than Form S-8 if the Holder of such Registrable
Securities is an Affiliate) or Rule 144, or (ii) (x) such issuance is otherwise
permitted under the Securities Act, (y) the Holder of such shares has delivered
to the Company an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to the Company, to such effect and (z) the Holder of
such shares expressly requests the issuance of such certificates in writing.
4.2 Amendments and Waivers. This Agreement may be amended,
modified or supplemented, and the Company may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the Holder or Holders of at least a majority of the
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders may be given by Holders
of at least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided, however, that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance
with the provisions of the immediately preceding sentence. No amendment,
modification or discharge of this Agreement, and no waiver hereunder, shall be
valid or binding unless set forth in writing. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party or parties granting such waiver
in any other respect or at any other time.
4.3 Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election and unless notice is otherwise
given to the Company by the record owner, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any Holder
or Holders pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any Holder or Holders
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Securities.
4.4 Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors assign and transferees. Purchaser or a Holder may assign
its rights hereunder to an Affiliate or to a Distributee or to other successors,
assigns and transferees of Purchaser or such Holder. This Agreement shall
survive any transfer of Registrable Securities to and shall inure to the benefit
of an Affiliate, a Distributee or such other successors, assigns and transferees
of Purchaser or such Holder. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of Registrable Securities,
subject to the provisions respecting the minimum numbers or percentages of
shares of Registrable Securities required in order to be entitled to certain
rights, or take certain actions, contained herein.
4.5 Notices. All notices and other communications in
connection with this Agreement shall be in writing. Any notice or other
communication in connection herewith shall be deemed duly given to any party (a)
two Business Days after it is sent by express, registered or certified mail,
return receipt requested, postage prepaid, (b)
one Business Day after it is sent by overnight courier, (c) when delivered by
hand, if personally delivered or (d) when receipt is acknowledged by the
addressee, if telecopied. Notices shall be addressed, if to
any Holder not a party hereto on the date hereof, to the address of such Holder
in the stock record books of the Company, and if to the Company to the following
address:
U.S. Office Products Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Director
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or at such other address or addresses as the Company may have designated in
writing to each holder of Registrable Securities at the time outstanding. Copies
of any notice or other communication given under the Agreement shall also be
given to:
▇▇▇▇▇▇▇, Dubilier & Rice Fund V
Limited Partnership
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
and to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Any party may give any notice or other communication in connection herewith
using any other means (including, but not limited to, messenger service, telex
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it is actually received by the individual
for whom it is intended.
4.6 No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement, or amend any existing agreement, with
respect to its securities if such agreement would be inconsistent with the
rights granted to the Holders by this Agreement.
4.7 Remedies; Attorneys' Fees. Each Holder of Registrable
Securities, in addition to being entitled to exercise all rights provided herein
or granted by law, in cluding recovery of damages, shall be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any provision of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate. As between the parties to this Agreement, in any action or proceeding
brought to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorney's fees in addition to its costs and expenses and
any other available remedy.
4.8 Severability. If any clause, provision or section of this
Agreement shall be invalid, illegal or unenforceable, the invalidity, illegality
or unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law. The invalidity of any
one or more phrases, sentences, clauses, Sections or subsections of this
Agreement shall not affect the remaining portions of this Agreement.
4.9. Headings. The headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
4.10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
4.11. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without giving effect to its principles or rules of conflict of laws that
would require the application of the laws of any other jurisdiction.
4.12 No Third Party Beneficiaries. Except as provided in
Sections 3.7 and 4.4, nothing in this Agreement shall confer any rights upon any
person or entity other than the parties hereto, each such party's respective
successors and permitted assigns.
4.13 Consent to Jurisdiction. Each party irrevocably submits
to the personal exclusive jurisdiction of the United States District Court for
the Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each party further agrees that service of any process, summons, notice or
document hand delivered or sent by registered mail to such party's respective
address set forth in Section 4.5 will be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction as set forth in the immediately preceding
sentence. Each party irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in the United States District Court for
the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in such court that any
such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
U.S. OFFICE PRODUCTS COMPANY
By: /s/ ▇▇▇▇ ▇. Director
--------------------------------------
Name: ▇▇▇▇ ▇. Director
Title: Executive Vice President--Administration,
General Counsel and Secretary
CDR-PC ACQUISITION, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President