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EXHIBIT 2.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and entered
into as of December 7, 1999, between Daisytek International Corporation, a
Delaware corporation ("Daisytek International"), Daisytek, Incorporated, a
Delaware corporation and wholly-owned subsidiary of Daisytek International
("Daisytek"), and PFSweb, Inc., a Delaware corporation and wholly-owned
subsidiary of Daisytek (the "Company").
WHEREAS, the Board of Directors of Daisytek has determined that it would be
appropriate and desirable to completely separate the Company's business from
Daisytek;
WHEREAS, Daisytek has caused the Company to be incorporated in order to
effect such separation;
WHEREAS, Daisytek, Daisytek International and the Company have entered into
a Master Separation Agreement and certain ancillary agreements, pursuant to
which Daisytek has contributed and transferred to the Company, and the Company
has received and assumed, the assets and liabilities then associated with the
Company's business as described therein;
WHEREAS, Daisytek, Daisytek International and the Company intend that this
contribution, together with the Distribution described therein, qualify as a
tax-free reorganization under Sections 355 and 368(a)(1)(D) of the Internal
Revenue Code;
WHEREAS, Daisytek currently owns all of the issued and outstanding shares
of the Company's common stock (the "Common Stock");
WHEREAS, the Company is offering and selling to the public (the "IPO") by
means of a Registration Statement (File No. 333-87657) filed with the Securities
and Exchange Commission (the "SEC") on Form S-1 (the "Registration Statement")
shares of its Common Stock;
WHEREAS, immediately following the consummation of the IPO, Daisytek shall
own not less than 80% of the outstanding shares of Common Stock;
WHEREAS, as soon as practicable following the satisfaction of applicable
conditions, and not later than 12 months following the IPO, Daisytek plans to
divest itself of its entire ownership of the Company through a tax-free
distribution to Daisytek International, to be immediately followed by a tax-free
distribution by Daisytek International to the holders of Daisytek International
common stock (the "Distribution");
WHEREAS, Daisytek, Daisytek International and the Company are entering into
an Initial Public Offering and Distribution Agreement to set forth certain
agreements with respect to the IPO and the Distribution; and
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WHEREAS, if Daisytek or Daisytek International determine not to complete
the Distribution, or the Distribution is abandoned without Daisytek or Daisytek
International divesting itself of 100% of the Common Stock it owns, the Company
desires to make certain arrangements to provide Daisytek and Daisytek
International with registration rights with respect to shares of Common Stock it
then holds;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and intending to be legally bound
hereby, the parties hereby agree as follows:
Section 1. Effectiveness of Agreement; Term.
1.1 Effective Date. This Agreement shall become effective upon the date
that Daisytek or Daisytek International provides to the Company written notice
(the "Abandonment Notice") that it no longer intends to proceed with or complete
the Distribution (the "Effective Date").
1.2 Shares Covered. This Agreement covers those shares of Common Stock that
are held by Daisytek immediately following the IPO and continue to be held by
Daisytek or Daisytek International as of the date of the Abandonment Notice
(subject to the provisions of Section 7, the "Shares"). The "Shares" shall
include any securities issued or issuable with respect to the Shares by way of a
stock dividend or a stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
Daisytek, Daisytek International and any Permitted Transferees (as defined
in Section 2.5) are each referred to herein as a "Holder" and collectively as
the "Holders" and the Holders of Shares proposed to be included in any
registration under this Agreement are each referred to herein as a "Selling
Holder" and collectively as the "Selling Holders."
Section 2. Demand Registration.
2.1 Notice. Upon the terms and subject to the conditions set forth herein,
upon written notice of any Holder requesting that the Company effect the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of any or all of the Shares held by it, which notice shall specify the
intended method or methods of disposition of such Shares (which methods may
include, without limitation, a Shelf Registration, a Convertible Registration or
an Exchange Registration (as such terms are defined in Section 2.6)), the
Company will promptly give written notice of the proposed registration to all
other Holders and will use its best efforts to effect (at the earliest
reasonable date) the registration under the Securities Act of such Shares (and
the Shares of any other Holders joining in such request as are specified in a
written notice received by the Company within 20 days after receipt of the
Company's written notice of the proposed registration) for disposition in
accordance with the intended method or methods of
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disposition stated in such request (each registration request pursuant to this
Section 2.1 is sometimes referred to herein as a "Demand Registration");
provided, however, that:
(a) the Company shall not be obligated to effect registration with
respect to Shares pursuant to this Section 2 within 90 days after the effective
date of a previous registration, other than a Shelf Registration, effected with
respect to Shares pursuant to this Section 2;
(b) if, while a registration request is pending pursuant to this
Section 2, the Company determines in the good faith judgment of counsel of the
Company that such registration would reasonably be expected to have a material
adverse effect on any existing proposal or plans by the Company or any of its
subsidiaries to engage in any material acquisition, merger, consolidation,
tender offer, other business combination, reorganization, securities offering or
other material transaction, the Company may postpone for up to 90 days the
filing or effectiveness of such registration; provided, however, that the
Company may delay a Demand Registration hereunder only once in any 12 month
period;
(c) except in the case of a Convertible Registration or an Exchange
Registration, the number of the Shares registered pursuant to any registration
requested pursuant to this Section 2 shall have an aggregate expected offering
price of at least $10 million; and
(d) if a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Shares requested to be included in such offering exceeds the number of
Shares which can be sold in an orderly manner in such offering within a price
range acceptable to the Holders of a majority of the Shares initially requesting
such registration or without materially adversely affecting the market for the
Common Stock, the Company shall include in such registration the number of
Shares requested to be included therein which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering and without materially adversely affecting the market for the Common
Stock, pro rata among the respective Holders thereof on the basis of the amount
of Shares owned by each Holder requesting inclusion of Shares in such
registration.
2.2 Registration Expenses. All Registration Expenses (as defined in Section
8) for any registration requested pursuant to this Section 2 (including any
registration that is delayed or withdrawn) shall be paid by the Company.
2.3 Selection of Professionals. The Holders of a majority of the Shares
included in any Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering; provided,
however, that if such Holders select an investment banker or manager that was
not one of the managers of the IPO, such investment banker or manager shall not
administer such offering if the Company reasonably objects thereto. The Holders
of a majority of the Shares included in any Demand Registration shall have the
right to select the financial printer, the solicitation and/or exchange agent
(if any) and one counsel for the Selling Holders. The Company shall select its
own outside counsel and independent auditors.
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2.4 Third Person Shares. The Company shall have the right to cause the
registration of securities for sale for the account of any Person (including the
Company) other than the Selling Holders (the "Third Person Shares") in any
registration of the Shares requested pursuant to this Section 2 so long as the
Third Person Shares are disposed of in accordance with the intended method or
methods of disposition requested pursuant to this Section 2; provided, however,
that the Company shall not have the right to cause the registration of such
securities of such other Persons if the registration requested pursuant to this
Section 2 is a Convertible Registration or an Exchange Registration.
If a Demand Registration in which the Company proposes to include Third
Person Shares is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Shares and Third
Person Shares requested to be included in such offering exceeds the number of
Shares and Third Person Shares which can be sold in an orderly manner in such
offering within a price range acceptable to the Holders of a majority of the
Shares initially requesting such registration or without materially adversely
affecting the market for the Common Stock, the Company shall not include in such
registration any Third Person Shares unless all of the Shares initially
requested to be included therein are so included.
2.5 Permitted Transferees. As used in this Agreement, "Permitted
Transferees" shall mean any transferee, whether direct or indirect, of Shares
designated by Daisytek or Daisytek International (or a subsequent holder) in a
written notice to the Company as provided for in Section 9.7. Any Permitted
Transferees of the Shares shall be subject to and bound by all of the terms and
conditions herein applicable to Holders. The notice required by this Section 2.5
shall be signed by both the transferring Holder and the Permitted Transferees so
designated and shall include an undertaking by the Permitted Transferees to
comply with the terms and conditions of this Agreement applicable to Holders.
2.6 Shelf Registration; Convertible Registration; Exchange Registration.
With respect to any Demand Registration, the requesting Holders may request the
Company to effect a registration of the Shares (a) under a registration
statement pursuant to Rule 415 under the Securities Act (or any successor rule)
(a "Shelf Registration"); (b) in connection with such Holders' registration
under the Securities Act of securities (the "Convertible Securities")
convertible into, exercisable for or otherwise related to the Shares (a
"Convertible Registration"); or (c) in connection with such Holders' offer to
exchange the Shares for any debt or equity securities of such Holders, a
subsidiary or affiliate thereof or any other Person (an "Exchange
Registration").
2.7 SEC Form. The Company shall use its best efforts to cause Demand
Registrations to be registered on Form S-3 (or any successor form), and if the
Company is not then eligible under the Securities Act to use Form S-3, Demand
Registrations shall be registered on Form S-1 (or any successor form). If a
Demand Registration is a Convertible Registration or an Exchange Registration,
the Company shall effect such registration on the appropriate Form under the
Securities Act for such registrations. The Company shall use its best efforts to
become eligible to use Form S-3 and, after becoming eligible to use Form S-3,
shall use its best efforts to remain so eligible.
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2.8 Other Registration Rights. The Company shall not grant to any Persons
the right to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities unless such rights are consistent with the rights granted under
this Agreement.
Section 3. Piggyback Registrations.
3.1 Notice and Registration. If the Company proposes to register any of its
securities for public sale under the Securities Act (whether proposed to be
offered for sale by the Company or any other Person), on a form and in a manner
which would permit registration of the Shares for sale to the public under the
Securities Act (a "Piggyback Registration"), it will give prompt written notice
to the Holders of its intention to do so, and upon the written request of any or
all of the Holders delivered to the Company within 20 days after the giving of
any such notice (which request shall specify the Shares intended to be disposed
of by such Holders), the Company will use its best efforts to effect, in
connection with the registration of such other securities, the registration
under the Securities Act of all of the Shares which the Company has been so
requested to register by such Holders (which shall then become Selling Holders),
to the extent required to permit the disposition (in accordance with the same
method of disposition as the Company proposes to use to dispose of the other
securities) of the Shares to be so registered; provided, however, that:
(a) if, at any time after giving such written notice of its intention
to register any of its other 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 other securities, the
Company may, at its election, give written notice of such determination to the
Selling Holders (or, if prior to delivery of the Holders' written request
described above in this Section 3.1, the Holders) and thereupon the Company
shall be relieved of its obligation to register such Shares in connection with
the registration of such other securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as provided
in Section 3.3), without prejudice, however, to the rights (if any) of any
Selling Holders immediately to request (subject to the terms and conditions of
Section 2) that such registration be effected as a registration under Section 2;
(b) the Company shall not be required to effect any registration of the
Shares under this Section 3 incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
employee benefit plans of the Company;
(c) if a Piggyback Registration is an underwritten primary registration
on behalf of the Company and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without materially adversely affecting the marketability of the offering or the
market for the Common Stock, the Company shall include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Shares
requested
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to be included in such registration, pro rata among the Holders of such Shares
on the basis of the number of Shares owned by each such Holder, and (iii) third,
any other securities requested to be included in such registration; and
(d) if a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities entitled to demand
registration thereof and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially adversely affecting the marketability of the offering or the market
for the Common Stock, the Company shall include in such registration (i) first,
the securities requested to be included therein by the holders requesting such
registration and the Shares requested to be included in such registration, pro
rata among the holders of such securities on the basis of the number of
securities owned by each such holder, and (ii) second, any other securities
requested to be included in such registration.
No registration of the Shares effected under this Section 3 shall relieve the
Company of its obligation to effect a registration of Shares pursuant to Section
2.
3.2 Selection of Professionals. If any Piggyback Registration is an
underwritten offering and any of the investment banker(s) or manager(s) selected
to administer the offering was not one of the managers of the IPO, such
investment banker or manager shall not administer such offering if the Holders
of a majority of the Shares included in such Piggyback Registration reasonably
object thereto. The Holders of a majority of the Shares included in any
Piggyback Registration shall have the right to select one counsel for the
Selling Holders. The Company shall select its own outside counsel and
independent auditors.
3.3 Registration Expenses. The Company will pay all of the Registration
Expenses in connection with any registration pursuant to this Section 3.
Section 4. Registration Procedures.
4.1 Registration and Qualification. If and whenever the Company is required
to use its best efforts to effect the registration of any of the Shares under
the Securities Act as provided in Sections 2 and 3, including an underwritten
offering pursuant to a Shelf Registration, the Company will as promptly as is
practicable:
(a) prepare and file with the SEC a registration statement with respect
to such Shares and use its best efforts to cause such registration statement to
become effective; provided that before filing a registration statement or
prospectus or any amendments or supplement thereto, the Company shall furnish to
the counsel selected by the Holders of a majority of the Shares covered by such
registration statement copies of all such documents proposed to be filed (which
documents shall be subject to the review and reasonable comment of such
counsel);
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(b) except in the case of a Shelf Registration, Convertible
Registration or Exchange Registration, prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all of the Shares until the earlier of (i) such
time as all of such Shares have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement or (ii) the
expiration of nine months after such registration statement becomes effective;
(c) in the case of a Shelf Registration (but not including any
Convertible Registration), prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Shares subject thereto for a period ending on the earlier of
(i) 18 months after the effective date of such registration statement and (ii)
the date on which all the Shares subject thereto have been sold pursuant to such
registration statement (the "Shelf Effective Period");
(d) in the case of a Convertible Registration or an Exchange
Registration, prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
of the Shares subject thereto until such time as the rules, regulations and
requirements of the Securities Act and the terms of the Convertible Securities
no longer require such Shares to be registered under the Securities Act (the
"Convertible Effective Period");
(e) furnish to the Selling Holders and to any underwriter of such
Shares such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), 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, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents as the Selling Holders or such underwriter may reasonably
request;
(f) use its best efforts to register or qualify all of the Shares
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as the Selling Holders or any underwriter of such
Shares shall reasonably request, and do any and all other acts and things which
may be necessary or advisable to enable the Selling Holders or any underwriter
to consummate the disposition in such jurisdictions of the Shares covered by
such registration statement, 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 where it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of process
in any such jurisdiction;
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(g) (i) furnish to the Selling Holders, addressed to them, an opinion
of counsel for the Company and (ii) use its best efforts to furnish to the
Selling Holders, addressed to them, a "cold comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' 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
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request, in each case, in form and
substance and as of the dates reasonably satisfactory to the Selling Holders;
(h) immediately notify the Selling Holders, at any time when a
prospectus relating to a registration pursuant to Section 2 or 3 is required to
be delivered under the Securities Act, of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and at the request of the Selling Holders prepare and furnish to the
Selling Holders 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 Shares, 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 are made, not misleading.
(i) permit any Selling Holder which Selling Holder, in its sole and
exclusive judgment, might be deemed to be an underwriter or a controlling person
of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such Holder and
its counsel should be included;
(j) to make available members of management of the Company, as selected
by the Holders of a majority of the Shares included in such registration, for
assistance in the selling effort relating to the Shares covered by such
registration, including, but not limited to, the participation of such members
of the Company's management in road show presentations.
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company shall use it best efforts promptly to obtain the
withdrawal of such order; and
(l) use its best efforts to cause Shares covered by such registration
statement to be registered with or approved by such other government agencies or
authorities as may be necessary to enable the sellers thereof to consummate the
disposition of such Shares.
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The Company may require the Selling Holders to furnish the Company with
such information regarding the Selling Holders and the distribution of such
Shares as the Company may from time to time reasonably request in writing and as
shall be required by law, the SEC or any securities exchange on which any shares
of Common Stock are then listed for trading in connection with any registration.
4.2 Underwriting. If requested by the underwriters for any underwritten
offering in connection with a registration requested hereunder (including any
registration under Section 3 which involves, in whole or in part, an
underwritten offering), the Company will enter into an underwriting agreement
with such underwriters for such offering, such agreement to 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 6 and the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 4.1(g). The Company may require that the Shares
requested to be registered pursuant to Section 3 be included in such
underwriting on the same terms and conditions as shall be applicable to the
Other Securities being sold through underwriters under such registration;
provided, however, that no Selling Holder shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof. The Selling Holders shall be parties to any such
underwriting agreement, and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Selling Holders.
4.3 Blackout Periods for Shelf Registrations.
(a) At any time when a Shelf Registration effected pursuant to Section
2 relating to the Shares is effective, upon written notice from the Company to
the Selling Holders that the Company determines in the good faith judgment of
the general counsel of the Company that the Selling Holders' sale of the Shares
pursuant to the Shelf Registration would require disclosure of material
information which the Company has a bona fide business purpose for preserving as
confidential and the disclosure of which would have a material adverse effect on
the Company or the Company is unable to comply with SEC requirements (an
"Information Blackout"), the Selling Holders shall suspend sales of the Shares
pursuant to such Shelf Registration until the earlier of (i) the date upon which
such material information is disclosed to the public or ceases to be material,
(ii) 90 days after counsel of the Company makes such good faith determination or
(iii) such time as the Company notifies the Selling Holders that sales pursuant
to such Shelf Registration may be resumed (the number of days from such
suspension of sales of the Selling Holders until the day when such sales may be
resumed hereunder is hereinafter called a "Sales Blackout Period").
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(b) If there is an Information Blackout and the Selling Holders do not
notify the Company in writing of their desire to cancel such Shelf Registration,
the period set forth in Section 4.1(c)(i) shall be extended for a number of days
equal to the number of days in the Sales Blackout Period.
4.4 Listing. In connection with the registration of any offering of the
Shares pursuant to this Agreement, the Company agrees to use its best efforts to
effect the listing of such Shares on any securities exchange on which any shares
of the Common Stock are then listed or otherwise facilitate the public trading
of such Shares.
4.5 Holdback Agreements.
(a) The Company shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any registration statement in
connection with a Demand Registration (other than a Shelf Registration) or a
Piggyback Registration, except pursuant to registrations on Form S-8 or any
successor form or unless the underwriters managing any such public offering
otherwise agree.
(b) If the Holders of Shares notify the Company in writing that they
intend to effect an underwritten sale of Shares registered pursuant to a Shelf
Registration pursuant to Section 2 hereof, the Company shall not effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for its equity securities,
during the seven days prior to and during the 90-day period beginning on the
date such notice is received, except pursuant to registrations on Form S-8 or
any successor form or unless the underwriters managing any such public offering
otherwise agree.
(c) If the Company completes an underwritten registration with respect
to any of its securities (whether offered for sale by the Company or any other
Person) on a form and in a manner that would have permitted registration of the
Shares and no Holder requested the inclusion of any Shares in such registration,
the Holders shall not effect any public sales or distributions of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, until the termination of the holdback period
required from the Company by any underwriters in connection with such previous
registration, but in no event more than 90 days from the effective date of such
registration.
Section 5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering the Shares
under the Securities Act and each sale of the Shares thereunder, the Company
will give the Selling Holders and the underwriters, if any, and their respective
counsel and accountants, access to its financial and other records, pertinent
corporate documents and properties of the Company and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of the Selling Holders and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
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Section 6. Indemnification and Contribution.
(a) In the event of any registration of any of the Shares hereunder,
the Company will enter into customary indemnification arrangements to indemnify
and hold harmless each of the Selling Holders, each of their respective
directors and officers, each Person (as defined in (e) below) who participates
as an underwriter in the offering or sale of such securities, each officer and
director of each underwriter, and each Person, if any, who controls each such
Selling Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Covered Persons") against any losses, claims, damages,
liabilities and expenses, joint or several, to which such Person may be subject
under the Securities Act or otherwise insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any related registration statement filed under the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) 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, and the Company will reimburse each such Covered Person,
as incurred, for any legal or any other expenses reasonably incurred by such
Covered Person in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus or final prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
Selling Holder or such underwriter specifically for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any such Covered Person and shall survive
the transfer of such securities by the Selling Holders. The Company also shall
agree to provide for contribution as shall reasonably be requested by the
Selling Holders or any underwriters in circumstances where such indemnity is
held unenforceable.
(b) Each of the Selling Holders, by virtue of exercising its respective
registration rights hereunder, agree and undertake to enter into customary
indemnification arrangements to indemnify and hold harmless (in the same manner
and to the same extent as set forth in clause (a) of this Section 6) the
Company, its directors and officers, each Person who participates as an
underwriter in the offering or sale of such securities, each officer and
director of each underwriter, and each Person, if any, who controls the Company
or any such underwriter within the meaning of the Securities Act, with respect
to any statement in or omission from such registration statement, any
preliminary prospectus or final prospectus included therein, or any amendment or
supplement thereto, if such statement or omission is contained in written
information furnished by such Selling Holder to the Company specifically for
inclusion in such registration statement or prospectus; provided, however, that
the obligation to indemnify shall be individual, not joint and several, for each
Selling Holder and shall be limited to the net amount of proceeds received by
such Selling Holder from the sale of Shares pursuant to such registration
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statement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or Person and shall survive the transfer of the registered securities by
the Selling Holders.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided, however, that the failure to give
prompt notice shall not impair any Person's rights to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 6 (with appropriate modifications) shall
be given by the Company and the Selling Holders with respect to any required
registration or other qualification of such Shares under any federal or state
law or regulation of governmental authority other than the Securities Act.
(e) "Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity, or any
department, agency or political subdivision thereof.
Section 7. Benefits and Termination of Registration Rights. The Holders may
exercise the registration rights granted hereunder in such manner and
proportions as they shall agree among themselves. The registration rights
hereunder shall cease to apply to any particular Shares and such securities
shall cease to be 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 to the public pursuant to Rule
144 under the Securities Act (or any successor provision); (c) such Shares shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force; (d) such Shares shall have ceased to be outstanding and (e) in the case
of Shares held by a Permitted Transferee, when such Shares become eligible for
sale pursuant to Rule 144(k) under the Securities Act (or any successor
provision).
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Section 8. Registration Expenses. As used in this Agreement, the term
"Registration Expenses" means all expenses incident to the Company's performance
of or compliance with the registration requirements set forth in this Agreement
including, without limitation, the following: (a) all registration and filing
fees; (b) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares to be disposed of
under the Securities Act; (c) the reasonable fees, disbursements and expenses of
the Selling Holders' counsel and advisors in connection with the registration of
the Shares to be disposed of under the Securities Act; (d) all expenses in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus, any other offering
document and amendments and supplements thereto and the mailing and delivering
of copies thereof to the underwriters and dealers and directly to
securityholders in the case of an Exchange Registration; (e) the cost of
printing and producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda, any selling agreements
and any amendments thereto or other documents in connection with the offering,
sale or delivery of the Shares to be disposed of; (f) all expenses in connection
with the qualification of the Shares to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters in connection with such qualification and in connection with
any blue sky and legal investment surveys; (g) the filing fees incident to
securing any required review by any securities exchange on which the Common
Stock is then traded or listed of the terms of the sale of the Shares to be
disposed of and the trading or listing of all such Shares on each such exchange;
(h) the costs of preparing stock certificates; (i) the costs and charges of the
Company's transfer agent and registrar; and (j) the fees and disbursements of
any custodians, solicitation agents, information agents and/or exchange agents.
Registration Expenses shall not include underwriting discounts and underwriters'
commissions attributable to the Shares being registered for sale on behalf of
the Selling Holders, which shall be paid by the Selling Holders.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Company shall not on or after the date
of this Agreement enter into any agreement with respect to its securities that
violates or subordinates the rights expressly granted to the Holders in this
Agreement. The Company shall not take any action, or permit any change to occur,
with respect to its securities which would adversely affect the ability of the
Holders of Shares to include such Shares in a registration undertaken pursuant
to this Agreement.
9.2 Complete Agreement. Except as otherwise set forth in this Agreement,
this Agreement shall constitute the entire agreement between the parties hereto
with respect to the subject matter hereof and shall supersede all prior
agreements and understandings, whether written or oral, between the parties with
respect to such subject matter.
9.3 Authority. Each of the parties hereto represents to the other that (i)
it has the corporate power and authority to execute, deliver and perform this
Agreement, (ii) the execution, delivery and performance of this Agreement by it
has been duly authorized by all
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necessary corporate action, (iii) it has duly and validly executed and delivered
this Agreement, and (iv) this Agreement is a legal, valid and binding
obligation, enforceable against it in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
9.4 Assignment. This Agreement shall be binding on and inure to the benefit
of and be enforceable by the parties hereto and with respect to the Company, its
respective successors and assigns, and any Permitted Transferees.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (other than the laws regarding
conflicts of laws) as to all matters of validity, construction, effect,
performance and remedies, executed in and to be performed in that State.
9.6 Severability. In the event that any part of this Agreement is declared
by a court or other judicial or administrative body to be null, void or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
9.7 Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given:
(i) on the date of service if served personally on the party to whom notice is
to be given; (ii) on the day of transmission if sent via facsimile transmission
to the facsimile number of the recipient's principal executive office, and
telephonic confirmation of receipt is obtained promptly after completion of
transmission; (iii) on the day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service; or (iv) on the fifth day after mailing, if mailed to the party
to whom notice is to be given, by first class mail, registered or certified,
postage prepaid and properly addressed, to any party at its principal executive
office or at such other office as any party shall give by notice in accordance
with the terms hereof, and if to any other Holder, the address indicated for
such Holder in the Company's stock transfer records with a copy, so long as
Daisytek owns any Shares, to Daisytek. Any party may change its address for the
purpose of this Section 9.7 by giving the other party written notice of its new
address in the manner set forth above.
9.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.9 Remedies. Each of Daisytek, Daisytek International and the Company
shall be entitled to enforce its rights under this Agreement specifically, to
recover damages and costs (including reasonable attorneys' fees) caused by any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. Each of Daisytek, Daisytek International and the Company
acknowledges and agrees that under certain circumstances the breach by it or any
of
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its affiliates of a term or provision of this Agreement will materially and
irreparably harm the other party, that money damages will accordingly not be an
adequate remedy for such breach and that the non-defaulting party, in its sole
discretion and in addition to its rights under this Agreement and any other
remedies it may have at law or in equity, may apply to any court of law or
equity of competent jurisdiction (without posting any bond or deposit) for
specific performance and/or other injunctive relief in order to enforce or
prevent any breach of the provisions of this Agreement.
9.10 Waivers. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if it is in writing signed by the Company and the Holders of a
majority of the Shares. Unless otherwise expressly provided in this Agreement,
no delay or omission on the part of any party in exercising any right or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right or privilege under this Agreement
operate as a waiver of any other right or privilege under this Agreement nor
shall any single or partial exercise of any right or privilege preclude any
other or further exercise thereof or the exercise of any other right or
privilege under this Agreement. No failure by either party to take any action or
assert any right or privilege hereunder shall be deemed to be a waiver of such
right or privilege in the event of the continuation or repetition of the
circumstances giving rise to such right unless expressly waived in writing by
the party against whom the existence of such waiver is asserted.
9.11 Amendment and Modification. This Agreement may not be amended or
modified in any respect except by a written agreement signed by the Company and
the Holders of a majority of the Shares.
9.12 Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only, are not part of the agreement of
the parties hereto, and shall not affect the meaning or interpretation of this
Agreement. All references to days or months shall be deemed references to
calendar days or months. All references to "$" shall be deemed references to
United States dollars. Unless the context otherwise requires, any reference to a
"Section" shall be deemed to refer to a section of this Agreement. The words
"hereof," "herein" and "hereunder" and words of similar import referring to this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, unless otherwise specifically provided, they shall be
deemed to be followed by the words "without limitation." This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing the document to be drafted.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile signature.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first written above.
DAISYTEK INTERNATIONAL CORPORATION
By:
-------------------------------------
Name:
Title:
DAISYTEK, INCORPORATED
By:
-------------------------------------
Name:
Title:
PFSWEB, INC.
By:
-------------------------------------
Name:
Title:
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