Registration Rights Agreement
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of January
30, 1995, is among (a) CDI Group, Inc., a Delaware corporation (the "Company"),
(b) BancBoston Ventures Inc., a Massachusetts corporation ("BBV"), (c) Harvest
Partners International, LP, Harvest Technology Partners, LP, European
Development Capital Corporation N.V. and Deutsche Beteiligungsgesellschaft mbH
(collectively, the "Harvest Investors"), (d) Banque Paribas ("Paribas"), (e)
Paribas Principal, Inc. ("PPI"), (f) TA Holding, Inc. ("TA"), (g) Xxx Xxxxxxxx,
(h) each of the Persons listed under the caption "Managers" on the signature
pages hereof and any other officer, employer or director of the Company who
becomes a party to this Agreement by executing an Instrument of Accession (an
"Instrument of Accession") in the form of Schedule 1 hereto (collectively, the
"Managers") and (i) each other Person who becomes a party to this Agreement by
executing an Instrument of Accession. The Purchasers and the Managers are
referred to collectively herein as the "Holders" and each individually as a
"Holder".
This Agreement is made in connection with (i) an Investor Securities
Purchase Agreement of even date herewith among the Company, BBV and the Harvest
Investors (the "Investor Purchase Agreement"), (ii) the Subscription Agreement
of even date herewith between the Company and TA (the "TA Subscription
Agreement"), (iii) the Subscription Agreement of even date herewith between the
Company and Xxx Xxxxxxxx (the "Tietbohl Subscription Agreement"), (iv) the
Option Agreement, of even date herewith, between BBV, the Harvest Investors and
Xxxxx Xxxxxxx (the "Management Option Agreement"), (v) the Warrant Agreement, of
even date herewith, between the Company and Paribas (the "Warrant Agreement"),
(vi) the Option Agreement of even date herewith among BBV, the Harvest Investors
and PPI (the "Paribas Option Agreement"), (vii) the Management Securities
Purchase Agreement of even date herewith between the Company and Xxxxx Xxxxxxx
(the "Management Purchase Agreement"), and (viii) the Stockholder Agreement of
even date herewith among the Company, BBV, the Harvest Investors, Paribas, PPI,
TA, Xxx Xxxxxxxx and the Managers (the "Stockholder Agreement"). In order to
induce (a) BBV and the Harvest Investors to enter into the Securities Purchase
Agreement and the Stockholder Agreement, (b) TA to enter into the TA
Subscription Agreement and the Stockholder Agreement, (c) Xxxxx Xxxxxxx to enter
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into the Management Option Agreement and the Stockholder Agreement, (d) Paribas
to enter into the Warrant Agreement, and (e) PPI to enter into the Paribas
Option Agreement, the Company has agreed to provide the registration rights set
forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used herein, the following terms have the following
meanings:
"BBV" has the meaning specified in the preamble hereto.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means collectively, the Company's Class A Voting Common
Stock, $0.00001 par value per share, and Class B Non-Voting Common Stock,
$0.00001 par value per share.
"Demand Registration" has the meaning specified in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Harvest Investors" has the meaning specified in the preamble hereto.
"Holder" means one of the Holders identified in the introductory paragraph
to this Agreement or such other Person to whom such Holder shall have assigned
or transferred such Holder's Registrable Securities in accordance with the
Stockholder Agreement and Section 12(g) of this Agreement.
"Indemnified Party" has the meaning specified in Section 8(b) hereof.
"Indemnifying Party" has the meaning specified in Section 8(b) hereof.
"Instrument of Accession" has the meaning specified in the preamble hereto.
"Investor Purchase Agreement" has the meaning specified in the preamble
hereto.
"Investor Registrable Securities" means, at any time, all of the then
issued and outstanding (a) shares of Common Stock issued to the BBV and the
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Harvest Investors pursuant to the Investor Purchase Agreement, (b) shares of
Common Stock issued to TA pursuant to the TA Subscription Agreement, (c) shares
of Common Stock issued to Xxxxx Xxxxxxx pursuant to the Management Purchase
Agreement, (d) shares of Common Stock issued to the Managers pursuant to the
exercise of the options under the Management Option Agreement, (e) shares of
Common Stock sold to Xxx Xxxxxxxx pursuant to the Tietbohl Subscription
Agreement, (f) Paribas Registrable Securities, (g) shares of any class of Common
Stock into which such shares of Common Stock have been converted, (h) capital
stock or other securities into which or for which any such shares of Common
Stock shall have been converted or exchanged pursuant to any recapitalization,
reorganization or merger of the Company, and (i) shares of capital stock issued
with respect to the foregoing pursuant to a stock split or stock dividend,
provided that the foregoing capital stock shall be Investor Registrable
Securities only so long as such capital stock has not been sold pursuant to a
Public Sale.
Management Option Agreement" has the meaning specified in the preamble
hereto.
"Management Options" means (a) options for the purchase of Common Stock
granted by the Company to Xxxxx Xxxxxxx pursuant to (i) the Incentive Stock
Option Agreement of even date herewith between the Company and Xxxxx Xxxxxxx and
(ii) the Disposition Event Stock Option Agreement of even date herewith between
the Company and Xxxxx Xxxxxxx and (b) all other options for the purchase of
Common Stock granted by the Company pursuant to the 1995 Stock Option Plan
adopted by the Board of Directors of the Company on January 30, 1995.
"Management Purchase Agreement" has the meaning specified in the preamble
hereto.
"Managers" has the meaning specified in the preamble hereto.
"NASDAQ" has the meaning specified in Section 5(a)(vi).
"Other Registrable Securities" means, at any time, all of the then issued
and outstanding (a) shares of Common Stock issuable to the Managers upon
exercise of the Management Options, (b) shares of any class of Common Stock into
which such shares of Common Stock have been converted, (c) capital stock or
other securities into which or for which any such shares of Common Stock shall
have been converted or exchanged pursuant to any recapitalization,
reorganization or merger of the Company, and (d) shares of capital stock issued
with respect to the foregoing pursuant to a stock split or stock dividend,
provided that the
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foregoing capital stock shall be Other Registrable Securities
only so long as such capital stock has not been sold pursuant to a Public Sale.
"Paribas" has the meaning specified in the preamble hereto.
"Paribas IPO Demand Registration" has the meaning specified in Section 2(f)
hereof.
"Paribas Option Agreement" has the meaning specified in the preamble
hereto.
"Paribas Priority Demand Registration" means a Demand Registration
designated by the Holders of a majority of the Paribas Warrant Registrable
Securities as a registration in which such holders are entitled to priority over
the other Holders of Investor Registrable Securities.
"Paribas Registrable Securities" means, at any time, all of the then issued
and outstanding (a) Paribas Warrant Registrable Securities and (b) (i) shares of
Common Stock issued to PPI pursuant to the exercise of the option under the
Paribas Option Agreement, (ii) shares of any class of Common Stock into which
such shares of Common Stock have been converted, (iii) capital stock or other
securities into which or for which any such shares of Common Stock shall have
been converted or exchanged pursuant to any recapitalization, reorganization or
merger of the Company, and (iv) shares of capital stock issued with respect to
the foregoing pursuant to a stock split or stock dividend, provided that the
foregoing capital stock shall be Paribas Registrable Securities only so long as
such capital stock has not been sold pursuant to a Public Sale.
"Paribas Warrant Registrable Securities" means, at any time, all of the
then issued and outstanding (a) shares of Common Stock issued or issuable upon
exercise of the Paribas Warrants in accordance with their terms, (b) shares of
any class of Common Stock into which such shares of Common Stock have been
converted, (c) capital stock or other securities into which or for which any
such shares of Common Stock shall have been converted or exchanged pursuant to
any recapitalization, reorganization or merger of the Company, and (d) shares of
capital stock issued with respect to the foregoing pursuant to a stock split or
stock dividend, provided that the foregoing capital stock shall be Paribas
Warrant Registrable Securities only so long as such capital stock has not been
sold pursuant to a Public Sale.
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"Paribas Warrants" means the Warrants of the Company issued to Paribas
pursuant to the Warrant Agreement and any other warrants transferred to any
holder pursuant to the Warrant Agreement.
"Person" means any individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggyback Registration" has the meaning specified in Section 3(a).
"PPI" has the meaning specified in the preamble hereto.
"Prospectus" means the prospectus included in any Registration Statement,
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 in such Prospectus.
"Public Sale" means any sale of Common Stock to the public pursuant to a
public offering registered under the Securities Act, or to the public through a
broker or market-maker pursuant to the provisions of Rule 144 (or any successor
rule) adopted under the Securities Act.
"registered" and "registration" means a registration effected by preparing
and filing a Registration Statement in compliance with the Securities Act and
the declaration or ordering by the Commission of effectiveness of such
Registration Statement.
"Registrable Securities" means all Investor Registrable Securities and all
Other Registrable Securities.
"Registration Expenses" has the meaning specified in Section 7.
"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder Agreement" has the meaning specified in the preamble hereto.
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"TA" has the meaning specified in the preamble hereto.
"TA Subscription Agreement" has the meaning specified in the preamble
hereto.
"Tietbohl Subscription Agreement" has the meaning specified in the preamble
hereto.
"Underwriters' Maximum Number" means, for any Piggyback Registration,
Demand Registration or other registration which is an underwritten registration,
that number of securities to which such registration should, in the opinion of
the managing underwriters of such registration in the light of marketing
factors, be limited.
"Warrant Agreement" has the meaning specified in the preamble hereto.
2. Demand Registration.
(a) Request for Demand Registration.
(i) Subject to the limitations contained in the following
paragraphs of this Section 2, any Holder of the Investor Registrable
Securities may, at any time and from time to time give to the Company,
pursuant to this subparagraph (i), a written request for the
registration by the Company under the Securities Act of all or any
part of the Investor Registrable Securities of such Holder (such
registration being herein called a "Demand Registration"). Within ten
(10) days after the receipt by the Company of any such written
request, the Company will give written notice of such registration
request to all Holders of Registrable Securities.
(ii) Subject to the limitations contained in the following
paragraphs of this Section 2, after the receipt of such written
request for a Demand Registration, (A) the Company will be obligated
and required to include in such Demand Registration all Registrable
Securities with respect to which the Company shall receive from
Holders of Registrable Securities, within thirty (30) days after the
date on which the Company shall have given to all Holders a written
notice of registration request pursuant to Section 2(a)(i) hereof, the
written requests of such Holders for inclusion in such Demand
Registration, and (B) the Company will use its best efforts in good
faith to effect promptly the registration of all such Registrable
Securities. All written requests made by Holders of Registrable
Securities pursuant to this subparagraph (ii) will
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specify the number of shares of Registrable Securities to be
registered and will also specify the intended method of disposition
thereof.
(b) Limitations on Demand Registration.
(i) The Holders of Investor Registrable Securities will not be
entitled to require the Company to effect (A) more than one (1) Demand
Registration on Form S-1 (or other comparable form adopted by the
Commission) during any twelve-month period, (B) any Demand Registration on
Form S-1 (or other comparable form adopted by the Commission) unless Form
S-3 (or any comparable form adopted by the Commission) is not available for
such Demand Registration, (C) any Demand Registration if the aggregate
number of Investor Registrable Securities requested to be registered
pursuant to such Demand Registration is less than five percent (5%) of the
number of shares of Common Stock then outstanding (on a fully-diluted
basis), or (D) any Demand Registration prior to the closing of the
Company's initial public offering of its Common Stock except as otherwise
provided in Section 2(f) hereof.
(ii) Any registration initiated by Holders of Investor Registrable
Securities as a Demand Registration pursuant to Section 2(a) hereof shall
not count as a Demand Registration for purposes of Section 2(b)(i) hereof
(A) unless and until such registration shall have become effective and all
Investor Registrable Securities requested to be included in such
registration shall have been actually sold and (B) if such Holders withdraw
their request for a Demand Registration at any time because such Holders
(1) reasonably believed that the Registration Statement or Prospectus
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 made therein (in the case of Prospectus, in the light of the
circumstances under which they were made) not misleading, (2) notified the
Company of such fact and requested that the Company correct such alleged
misstatement or omission and (3) the Company has refused to correct such
alleged misstatement or omission.
(iii) The Company shall not be obligated or required to effect the
Demand Registration of any Investor Registrable Securities pursuant to
Section 2(a) hereof during the period commencing on the date falling thirty
(30) days prior to the Company's estimated date of filing of, and ending on
the date 180
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days following the effective date of, any Registration Statement pertaining
to any underwritten registration initiated by the Company, for the account
of the Company, if the written request of Holders for such Demand
Registration pursuant to Section 2(a)(i) hereof shall have been received by
the Company after the Company shall have given to all Holders of
Registrable Securities a written notice stating that the Company is
commencing an underwritten registration initiated by the Company; provided,
however, that the Company will use its best efforts in good faith to cause
any such Registration Statement to be filed and to become effective as
expeditiously as shall be reasonably possible.
(c) Priority on Demand Registrations. If the managing underwriters in any
underwritten Demand Registration shall give written advice to the Company and
the Holders of Investor Registrable Securities to be included in such
registration of an Underwriters' Maximum Number, then: (i) the Company will be
obligated and required to include in such registration that number of Investor
Registrable Securities requested by the Holders thereof to be included in such
registration which does not exceed the Underwriters' Maximum Number, and such
number of Investor Registrable Securities shall be allocated pro rata among the
Holders of such Investor Registrable Securities on the basis of the number of
Investor Registrable Securities requested to be included therein by each such
Holder; (ii) if the Underwriters' Maximum Number exceeds the number of Investor
Registrable Securities requested by the Holders thereof to be included in such
registration, then the Company will be obligated and required to include in such
registration that number of Other Registrable Securities requested by the
Holders thereof to be included in such registration and which does not exceed
such excess and such Other Registrable Securities shall be allocated pro rata
among the Holders thereof on the basis of the number of Other Registrable
Securities requested to be included therein by each such Holder; (iii) if the
Underwriters' Maximum Number exceeds the number of Registrable Securities
requested by the Holders thereof to be included in such registration, then the
Company will be entitled to include in such registration that number of
securities which shall have been requested by the Company to be included in such
registration for the account of the Company and which shall not be greater than
such excess; and (iv) if the Underwriters' Maximum Number exceeds the sum of the
number of Registrable Securities which the Company shall be required to include
in such Demand Registration and the number of securities which the Company
proposes to offer and sell for its own account in such registration, then the
Company may include in such registration that number of other securities which
persons (other than the Holders as such)
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shall have requested be included in such registration and which shall not be
greater than such excess. Neither the Company nor any of its stockholders (other
than Holders of Investor Registrable Securities) shall be entitled to include
any securities in any underwritten Demand Registration unless the Company or
such stockholders (as the case may be) shall have agreed in writing to sell such
securities on the same terms and conditions as shall apply to the Investor
Registrable Securities to be included in such Demand Registration.
(d) Selection of Underwriters. The Holders of a majority of the Investor
Registrable Securities to be included in any Demand Registration shall determine
whether or not such Demand Registration shall be underwritten and shall select
the investment banker(s) and managing underwriter(s) to administer such
offering.
(e) Paribas Priority Demand Registration. The Holders of a majority of the
Paribas Warrant Registrable Securities shall be entitled, with respect to one
(1) Demand Registration, to designate such Demand Registration as a Paribas
Priority Demand Registration by delivering written notice to the Company within
30 days after delivery to such holders of the notice of registration request
pursuant to Section 2(b)(i) hereof. Notwithstanding any provision in Section
2(c) hereof to the contrary, if the Paribas Priority Demand Registration is
subject to an Underwriters Maximum Number, the Company shall include all Paribas
Warrant Registrable Securities requested by the Holders of Paribas Warrant
Registrable Securities to be included therein before any other Registrable
Securities may be included.
(f) Paribas IPO Demand Registration. On one occasion, after January 30,
2003 but prior to the closing of the Company's initial public offering of its
Common Stock, the Holders of a majority of the Paribas Registrable Securities
shall be entitled to effect an initial public offering of the Company's Common
Stock by a written request for a Demand Registration (the "Paribas IPO Demand
Registration"). Such Demand Registration shall be effected in accordance with
the foregoing provisions of this Section 2. Notwithstanding any provision in
2(c) to the contrary, if the Paribas IPO Demand Registration is subject to an
Underwriters Maximum Number, the Company shall include 50% of all then
outstanding Paribas Registrable Securities requested by the holders thereof to
be included therein before any other Registrable Securities may be included.
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3. Piggyback Registrations.
(a) Rights to Piggyback.
(i) If (and on each occasion that) the Company proposes to register
any of its securities under the Securities Act either for the Company's own
account or for the account of any of its stockholders (other than for
Holders pursuant to Section 2 hereof entitled to participate in a
registration) (each such registration not withdrawn or abandoned prior to
the effective date thereof being herein called a "Piggyback Registration"),
the Company will give written notice to all Holders of Registrable
Securities of such proposal not later than the earlier to occur of (A) the
tenth day following the receipt by the Company of notice of exercise of any
registration rights by any persons, and (B) the thirtieth day prior to the
anticipated filing date of such Piggyback Registration.
(ii) Subject to the provisions contained in paragraph (b) of this
Section 3 and in the last sentence of this subparagraph (ii), (A) the
Company will be obligated and required to include in each Piggyback
Registration all Registrable Securities with respect to which the Company
shall receive from Holders of Registrable Securities, within fifteen (15)
days after the date on which the Company shall have given written notice of
such Piggyback Registration to all Holders of Registrable Securities
pursuant to Section 3(a)(i) hereof, the written requests of such Holders
for inclusion in such Piggyback Registration, and (B) the Company will use
its best efforts in good faith to effect promptly the registration of all
such Registrable Securities. The Holders of Registrable Securities shall be
permitted to withdraw all or any part of the Registrable Securities of such
Holders from any Piggyback Registration at any time prior to the effective
date of such Piggyback Registration unless such Holders of Registrable
Securities shall have entered into a written agreement with the Company's
underwriters establishing the terms and conditions under which such Holders
would be obligated to sell such securities in such Piggyback Registration.
The Company will not be obligated or required to include any Registrable
Securities in any registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 of the Commission is
applicable.
(b) Priority on Piggyback Registrations. If a Piggyback Registration is an
underwritten registration, and the managing underwriters shall give written
advice to the Company of an
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Underwriters' Maximum Number, then: (i) the Company shall be entitled to include
in such registration that number of securities which the Company proposes to
offer and sell for its own account in such registration and which does not
exceed the Underwriters' Maximum Number; (ii) if the Underwriters' Maximum
Number exceeds the number of securities which the Company proposes to offer and
sell for its own account in such registration, then the Company will be
obligated and required to include in such registration that number of Investor
Registrable Securities requested by the Holders thereof to be included in such
registration and which does not exceed such excess and such Investor Registrable
Securities shall be allocated pro rata among the Holders thereof on the basis of
the number of Investor Registrable Securities requested to be included therein
by each such Holder; (iii) if the Underwriters' maximum number exceeds the sum
of the number of Investor Registrable Securities which the Company shall be
required to include in such registration pursuant to clause (ii) and the number
of securities which the Company proposes to offer and sell for its own account
in such registration, then the Company will be obligated and required to include
in such registration that number of Other Registrable Securities requested by
the Holders thereof to be included in such registration and which does not
exceed such excess and such Other Registrable Securities shall be allocated pro
rata among the Holders thereof on the basis of the number of Other Registrable
Securities requested to be included therein by each such Holder; and (iv) if the
Underwriters' Maximum Number exceeds the sum of the number of Registrable
Securities which the Company shall be required to include in such registration
pursuant to clauses (ii) and (iii) and the number of securities which the
Company proposes to offer and sell for its own account in such registration,
then the Company may include in such registration that number of other
securities which persons shall have requested be included in such registration
and which shall not be greater than such excess.
(c) Selection of Underwriters. In any Piggyback Registration, the Company
shall (unless the Company shall otherwise agree) have the right to select the
investment bankers and managing underwriters in such registration.
4. Lockup Agreements.
(a) Restrictions on Public Sale by Holders of Registrable Securities. Each
Holder of Registrable Securities, if the Company or the managing underwriters so
request in connection with any underwritten registration of the Company'
securities, will not, without the prior written consent of the Company or such
underwriters, effect any public sale or
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other distribution of any equity securities of the Company, including any sale
pursuant to Rule 144, during the seven (7) days prior to, and (i) with respect
to any Holder of Registrable Securities that is an institutional investor,
during the ninety (90) day period commencing on the effective date of such
underwritten registration and (ii) with respect to all other Holders of
Registrable Securities, during the one hundred eighty (180) day period
commencing on, the effective date of such underwritten registration, except in
connection with such underwritten registration.
(b) Restrictions on Public Sale by the Company. The Company agrees not to
effect any public sale or other distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period commencing on the seventh day prior to, and ending
on the one hundred eightieth (180th) day following, the effective date of any
underwritten Demand or Piggyback Registration, except in connection with any
such underwritten registration and except for any offering pursuant to an
employee benefit plan and registered on Form S-8 (or any successor form).
5. Registration Procedures.
(a) Whenever the Holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities 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
supplements thereto, the Company will furnish to counsel selected by the
holders of Registrable Securities covered by such Registration Statement,
copies of all such documents proposed to be filed, which documents will be
subject to the timely review of such counsel and the Company will not file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto, including documents incorporated by reference, to which
the Holders of a majority of the Registrable Securities covered by such
Registration Statement shall reasonably object);
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and
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the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for not more than six (6) months and,
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during
such effective period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement
and cause the Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act;
(iii) upon request, furnish to each seller of Registrable Securities
such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement
(including each preliminary Prospectus and each Prospectus filed under Rule
424 of the Securities Act) and such other documents as each such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each such seller (it being understood that
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by such seller in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto);
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests, use its best efforts to
keep each such registration or qualification effective, including through
new filings, amendments or renewals, during the period such Registration
Statement is required to be kept effective, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided that the Company will
not be required (A) to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
subparagraph (a)(iv), (B) to subject itself to taxation in any such
jurisdiction or (C) to consent to general service of process in any such
jurisdiction;
(v) notify each seller of such Registrable Securities, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result
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of which the Prospectus included in such Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company will promptly prepare (and, when completed, give notice to each
seller of Registrable Securities) a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading; provided that upon such notification
by the Company, each seller of such Registrable Securities will not offer
or sell such Registrable Securities until the Company has notified such
seller that it has prepared a supplement or amendment to such Prospectus
and delivered copies of such supplement or amendment to such Seller;
(vi) cause all such Registrable Securities to be listed, prior to the
date of the first sale of such Registrable Securities pursuant to such
registration, on each securities exchange on which similar securities
issued by the Company are then listed and, if not so listed, to be listed
with the National Association of Securities Dealers automated quotation
system ("NASDAQ");
(vii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement;
(viii) enter into all such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Investor Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities (including,
without limitation, effecting a stock split or a combination of shares);
(ix) make available for inspection on a confidential basis by any
seller, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by any such seller or underwriter (in each case after reasonable
prior notice), all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply on a
confidential basis all information reasonably requested by any such
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seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(x) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company within the meaning of Section 15 of the
Securities Act, to participate in the preparation of such registration or
comparable statement and to permit 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, provided that such material
shall be furnished under such circumstances as shall cause it to be subject
to the indemnification provisions provided pursuant to Section 8(b) hereof;
(xi) 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 Registrable Securities included in such Registration
Statement for sale in any jurisdiction, the Company will use its best
efforts promptly to obtain the withdrawal of such order;
(xii) if requested by the managing underwriter or underwriters or any
holder of Registrable Securities in connection with any sale pursuant to a
Registration Statement, promptly incorporate in a Prospectus supplement or
post-effective amendment such information relating to such underwriting as
the managing underwriter or underwriters or such holder reasonably requests
to be included therein, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such Prospectus supplement or
post-effective amendment;
(xiii) cooperate with the holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be sold under such
registration, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such holders may request;
(xiv) use its best efforts to cause the Registrable Securities to be
registered with or approved by such other governmental
-16-
agencies or authorities within the United States and having jurisdiction
over the Company as may reasonably be necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to consummate
the disposition of such Registrable Securities;
(xv) use its best efforts to obtain:
(A) at the time of effectiveness of each registration, a "comfort
letter" from the Company's independent certified public accountants
covering such matters of the type customarily covered by "cold comfort
letters" as the Holders of a majority of the Registrable Securities
covered by such registration and the underwriters reasonably request;
and
(B) at the time of any underwritten sale pursuant to a
Registration Statement, a "bring-down comfort letter", dated as of the
date of such sale, from the Company's independent certified public
accountants covering such matters of the type customarily covered by
comfort letters as the Holders of a majority of the Registrable
Securities covered by such Registration Statement and the underwriters
reasonably request;
(xvi) use its best efforts to obtain, at the time of effectiveness of
each Piggyback Registration and at the time of any sale pursuant to each
registration, an opinion or opinions, favorable in form and scope to the
Holders of a majority of the Registrable Securities covered by such
registration, from counsel to the Company in customary form; and
(xvii) otherwise comply with all applicable rules and regulations of
the Commission, and make generally available to its securityholders (as
contemplated by Section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities Act no
later than ninety (90) days after the end of the twelve month period
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover said twelve month period.
6. Cooperation by Prospective Sellers, Etc.
(a) Each prospective seller of Registrable Securities will furnish to the
Company in writing such information as the Company may
-17-
reasonably require from such seller, and otherwise reasonably cooperate with the
Company in connection with any Registration Statement with respect to such
Registrable Securities.
(b) The failure of any prospective seller of Registrable Securities to
furnish any information or documents in accordance with any provision contained
in this Agreement shall not affect the obligations of the Company under this
Agreement to any remaining sellers who furnish such information and documents
unless in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the viability of the offering or the legality
of the Registration Statement or the underlying offering.
(c) The Holders of Registrable Securities included in any Registration
Statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update such Registration Statement or Prospectus; but the
obligations of the Company with respect to maintaining any Registration
Statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect.
(d) At the end of any period during which the Company is obligated to keep
any Registration Statement current and effective as provided by Section 5 hereof
(and any extensions thereof required by the preceding paragraph (c) of this
Section 6), the Holders of Registrable Securities included in such Registration
Statement shall discontinue sales of shares pursuant to such Registration
Statement upon receipt of notice from the Company of its intention to remove
from registration the shares covered by such Registration Statement which remain
unsold, and such Holders shall notify the Company of the number of shares
registered which remain unsold promptly after receipt of such notice from the
Company.
(e) Notwithstanding any other provision herein to the contrary, no
Holder of Registrable Securities which constitute warrants or options shall be
required to exercise such warrants or options in connection with any
registration until the actual sale of the shares of Common Stock issuable upon
exercise of such warrants or options. The Company shall enter into such
agreements and shall otherwise cooperate with the Holders of Registrable
Securities in order to ensure that such Holders are not required to exercise any
warrants or options prior to the date of the actual sale of the shares of Common
Stock issuable upon exercise of such warrants or options.
-18-
7. Registration Expenses.
(a) All costs and expenses incurred or sustained in connection with or
arising out of each registration pursuant to Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with the blue sky
qualification of Registrable Securities), printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of one counsel representing the
Holders of Registrable Securities, such counsel to be selected by the Holders of
a majority of the Registrable Securities to be included in such registration,
fees and disbursements of all independent certified public accountants
(including the expenses relating to the preparation and delivery of any special
audit or "cold comfort" letters required by or incident to such registration),
and fees and disbursements of underwriters (excluding discounts and
commissions), the reasonable fees and expenses of any special experts retained
by the Company of its own initiative or at the request of the managing
underwriters in connection with such registration, and fees and expenses of all
(if any) other persons retained by the Company (all such costs and expenses
being herein called, collectively, the "Registration Expenses"), will be borne
and paid by the Company. The Company will, in any case, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange on which
similar securities of the Company are then listed.
(b) The Company will not bear the cost of nor pay for any stock transfer
taxes imposed in respect of the transfer of any Registrable Securities to any
purchaser thereof by any Holder of Registrable Securities in connection with any
registration of Registrable Securities pursuant to this Agreement.
(c) To the extent that Registration Expenses incident to any registration
are, under the terms of this Agreement, not required to be paid by the Company,
each Holder of Registrable Securities included in such registration will pay all
Registration Expenses which are clearly solely attributable to the registration
of such Holder's Registrable Securities so included in such registration, and
all other Registration Expenses not so attributable to one Holder will be borne
and paid by all
-19-
sellers of securities included in such registration in proportion to the number
of securities so included by each such seller.
8. Indemnification.
(a) Indemnification by the Company. The Company will indemnify each Holder
requesting or joining in a registration and each underwriter of the securities
so registered, the officers, directors and partners of each such Person and each
Person who controls any thereof (within the meaning of the Securities Act)
against any and all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of any material fact contained in any Prospectus, offering
circular or other document incident to any registration, qualification or
compliance (or in any related Registration Statement, notification or the like)
or any omission (or alleged omission) to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
any action or inaction required of the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, underwriter, officer, director, partner and controlling person for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company in an instrument duly executed by such Holder, underwriter, officer,
director, partner or controlling person and stated to be specifically for use in
such Prospectus, offering circular or other document.
(b) Indemnification by Each Holder. Each Holder requesting or joining in a
registration will indemnify each underwriter of the securities so registered,
the Company and its officers and directors and each person, if any, who controls
any thereof (within the meaning of the Securities Act) and their respective
successors in title and assigns against any and all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of any material fact contained in
any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statement
-20-
therein not misleading, and such Holder will reimburse each underwriter, the
Company and each other person indemnified pursuant to this paragraph (b) for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that this paragraph (b) shall apply only if (and only to the
extent that) such statement or omission was made in reliance upon written
information furnished to such underwriter or the Company in an instrument duly
executed by such Holder and stated to be specifically for use in such
Prospectus, offering circular or other document (or related Registration
Statement, notification or the like) or any amendment or supplement thereto;
and, provided further, that each Holder's liability hereunder with respect to
any particular registration shall be limited to an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.
(c) Indemnification Proceedings. Each party entitled to indemnification
pursuant to this Section 8 (the "Indemnified Party") shall give notice to the
party required to provide indemnification pursuant to this Section 8 (the
"Indemnifying Party") promptly after such Indemnified Party acquires actual
knowledge of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
acceptable to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; and provided, further, that the failure
by any Indemnified Party to give notice as provided in this paragraph (c) shall
not relieve the Indemnifying Party of its obligations under this Section 8
except to the extent that the failure results in a failure of actual notice to
the Indemnifying Party and such Indemnifying Party is damaged solely as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. The reimbursement required by this Section 8 shall be made
by periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred.
9. Contribution in Lieu of Indemnification. If the indemnification provided
for in Section 8 hereof is unavailable to a party that would have been an
Indemnified Party under any such section in
-21-
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each party that would have been an
Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified
Party, contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and such Indemnified Party on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder of Registrable Securities
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro-rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 9. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 9 shall include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding any
provision of this Section 9 to the contrary, (a) 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 and (b) each Holder's liability hereunder with
respect to any particular registration shall be limited to an amount equal to
the net proceeds received by such Holder from the Registrable Securities sold by
such Holder in such registration.
10. Rule 144 Requirements; Form S-3. From time to time after the earlier to
occur of (a) the ninetieth day following the date on which there shall first
become effective a Registration Statement filed by the Company under the
Securities Act, or (b) the date on which the Company shall register a class of
securities under Section 12 of the Exchange Act, the Company will make every
effort in good faith to take all steps necessary to ensure that the Company will
be eligible to register securities on Form S-3 (or any comparable form adopted
by the Commission) as soon thereafter as possible, and to make publicly
available and available to the Holders of Registrable Securities, pursuant to
Rule 144 or Rule 144A of the Commission under the Securities Act,
-22-
such information as shall be necessary to enable the Holders of Registrable
Securities to make sales of Registrable Securities pursuant to such Rules. The
Company will furnish to any Holder of Registrable Securities, upon request made
by such Holder at any time after the undertaking of the Company in the preceding
sentence shall have first become effective, a written statement signed by the
Company, addressed to such Holder, describing briefly the action the Company has
taken or proposes to take to comply with the current public information
requirements of Rule 144 and Rule 144A. The Company will, at the request of any
Holder of Registrable Securities, upon receipt from such Holder of a certificate
certifying (i) that such Holder has held such Registrable Securities for a
period of not less than three (3) consecutive years, (ii) that such Holder has
not been an affiliate (as defined in Rule 144) of the Company for more than the
ninety (90) preceding days, and (iii) as to such other matters as may be
appropriate in accordance with such Rule, remove from the stock certificates
representing such Registrable Securities that portion of any restrictive legend
which relates to the registration provisions of the Securities Act.
11. Participation in Underwritten Registrations. No Person may participate
in any underwritten registration pursuant to this Agreement unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the persons entitled, under the provisions
hereof, to approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements. Any Holder of Registrable Securities to be included in any
underwritten registration shall be entitled at any time to withdraw such
Registrable Securities from such registration prior to its effective date in the
event that such Holder shall disapprove of any of the terms of the related
underwriting agreement.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not previously entered into
any agreement with respect to its Common Stock granting any registration rights
to any Person, and will not on or after the date of this Agreement enter into
any agreement with respect to its securities which grants demand registration
rights to anyone or which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
-23-
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless such amendment, modification, supplement, waiver or consent is approved
in writing by the Holders of at least a majority of the Registrable Securities;
provided, however, that no amendment, modification or waiver of any provision of
this Agreement that materially adversely affects the rights of one particular
Party (as hereinafter defined) to this Agreement (whether or not such amendment,
modification or waiver materially adversely affects such Party in a manner
different from the rights of the other Parties) shall be effective against such
adversely affected Party unless approved in writing by the holders of at least a
majority of the Registrable Securities then held by all members of such Party.
As used in this Section 12(b), "Party" means any one of the following entities
or groups: (i) the Company, (ii) the Holders of Investor Registrable Securities,
(iii) the Holders of Other Registrable Securities, (iv) the holders of the
Paribas Warrant Registrable Securities and (v) the holder of Paribas Registrable
Securities.
(c) Registrable Securities Held by the Company. Whenever the consent or
approval of Holders of Registrable Securities is required pursuant to this
Agreement, Registrable Securities held by the Company shall not be counted in
determining whether such consent or approval was duly and properly given by such
Holders.
(d) Term. The agreements of the Company contained in this Agreement shall
continue in full force and effect so long as any Holder holds any Registrable
Securities.
(e) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will 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 of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(f) Notices. Any notice provided for in this Agreement will be in writing
and will be deemed properly delivered if either personally delivered or sent by
overnight courier or telecopier or mailed certified or registered mail, return
receipt requested, postage prepaid, to the recipient at the address specified
below:
-24-
(i) if to a Holder, at such Holder's address on the stock transfer
books of the Company; and
(ii) if to the Company, at:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(f). Any such notice shall be effective
(A) if delivered personally or by telecopy, when received, (B) if sent by
overnight courier, when receipted for, and (C) if mailed, three (3) days after
being mailed as described above.
(g) Successors and Assigns. This Agreement and the rights of any Holder
hereunder may be assigned to, and shall inure to the benefit of, any Person to
whom such Holder transfers Registrable Securities, provided that such transfer
is made in compliance with the provisions of the Stockholder Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of Accession.
(h) Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
(j) Governing Law. The validity, performance, construction and effect of
this Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without giving effect to principles of
conflicts of law.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and
-25-
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
-26-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY: CDI GROUP, INC.
By:___________________________________________
Title:
THE INVESTORS: BANCBOSTON VENTURES INC.
By:___________________________________________
Title:
HARVEST PARTNERS INTERNATIONAL, LP
By:___________________________________________
Title:
HARVEST TECHNOLOGY PARTNERS, LP
By:___________________________________________
Title:
EUROPEAN DEVELOPMENT CAPITAL CORPORATION N.V.
By:___________________________________________
Title:
DEUTSCHE BETEILIGUNGSGESELLSCHAFT mbH
By:___________________________________________
Title:
-00-
XXXXXX XXXXXXX
By:__________________________________________
Title:
PARIBAS PRINCIPAL, INC.
By:__________________________________________
Title:
TA HOLDING, INC.
By:__________________________________________
Title:
_____________________________________________
Xxx Xxxxxxxx
THE MANAGERS: ______________________________________________
Xxxxx Xxxxxxx
-28-
SCHEDULE 1
TO REGISTRATION
RIGHTS AGREEMENT
Instrument of Accession
-----------------------
Reference is made to that certain Registration Rights Agreement dated as of
January 30, 1995, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among CDI Group, Inc.,
a Delaware corporation (the "Company"), and the Holders (as defined therein).
The undersigned, _____________________, in order to become the owner or
holder of ______ shares of the [Class A Voting Common Stock, $0.00001 par value
per share] [Class B Non-Voting Common Stock, $0.00001 par value per share] (the
"Shares") of the Company hereby agrees that by his execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of stock of the
Company issued in respect thereof) are subject to all the restrictions and
conditions applicable to Registrable Securities as set forth in the Registration
Rights Agreement. This Instrument of Accession shall take effect and shall
become a part of said Registration Rights Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the State of
Delaware.
Signature: __________________________________________
Address: __________________________________________
Date: __________________________________________
Accepted:
CDI GROUP, INC.
By:__________________________________________________
Date:________________________________________________
