Exhibit 4.10
REGISTRATION AND PUT RIGHTS AGREEMENT
dated as of September 30, 1997
among
WESTERN MICRO TECHNOLOGY, INC.
a Delaware corporation
and
THE HOLDERS OF REGISTRABLE SECURITIES
REFERRED TO HEREIN
REGISTRATION AND PUT RIGHTS AGREEMENT
REGISTRATION AND PUT RIGHTS AGREEMENT (this "Agreement") dated as of
September 30, 1997, by and between Western Micro Technology, Inc., a Delaware
corporation (the "Company") and IBM Credit Corporation, a Delaware corporation,
the holder of securities of the Company.
RECITALS
WHEREAS, pursuant to that certain Warrant Agreement dated September
30, 1997, by and between the Company and IBM Credit Corporation, IBM Credit
Corporation received the warrants exercisable to acquire 100,000 shares of
common stock from the Company ("Warrants"); and
WHEREAS, the parties hereto hereby desire to set forth IBM Credit
Corporation's rights and the Company's obligations to cause the registration
pursuant to the Securities Act of 1933 of the shares of common stock received or
receivable upon the exercise of the Warrants;
NOW, THEREFORE, in consideration of the agreement by IBM Credit
Corporation to provide the benefits under the Inventory and Working Capital
Agreement dated December 31, 1996 (the "IWCF") and that certain Promissory Note
of even date therewith and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Agreements and Representations of the Company.
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1.1. The Company represents and warrants to IBM Credit
Corporation that it has the requisite power and authority to execute, deliver
and carry out this Agreement and has taken all necessary action to approve this
Agreement and to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly and properly executed and delivered by
the Company and constitutes the legally valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
Section 2. Definitions and Usage
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As used in this Agreement:
2.1 Definitions.
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Agent. "Agent" means the principal placement agent on an
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agented placement of Registrable Securities.
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Commission. "Commission" shall mean the Securities and Exchange
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Commission.
Common Stock. "Common Stock" shall mean (i) the common stock,
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$0.01 par value, of the Company, and (ii) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Continuously Effective. "Continuously Effective," with respect
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to a specified registration statement, shall mean that it shall not cease to be
effective and available for Transfers of Registrable Securities thereunder for
longer than either (i) any ten (10) consecutive business days, or (ii) an
aggregate of fifteen (15) business days during any calendar year during the
period specified in the relevant provision of this Agreement.
Demand Registration. "Demand Registration" shall have the
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meaning set forth in Section 4.1.
Demanding Holders. "Demanding Holders" shall have the meaning
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set forth in Section 4.1.
Exchange Act. "Exchange Act" shall mean the Securities Exchange
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Act of 1934, as amended and the rules and regulations promulgated thereunder.
Holders. "Holders" shall mean IBM Credit Corporation and
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Transferees of such Persons' Registrable Securities with respect to the rights
that such Transferees shall have acquired in accordance with Section 9, at such
times as such Persons shall have beneficial or record ownership of Registrable
Securities.
Majority of the Holders. A "Majority of the Holders" means
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those Holders holding at any time a majority of the Registrable Securities and
Transferees of such Persons' Registrable Securities with respect to the rights
that such Transferees shall have acquired in accordance with Section 9, at such
times as such Persons shall have beneficial or record ownership of Registrable
Securities.
Note Purchase Agreement. "Note Purchase Agreement" shall have
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the meaning set forth in the Recitals.
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Person. "Person" shall mean any individual, corporation,
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partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or other agency or
political subdivision thereof.
Piggyback Registration. "Piggyback Registration" shall have the
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meaning set forth in Section 3 .
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Put Option. "Put Option" shall have the meaning set forth in
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Section 11.
Register, Registered and Registration. "Register,"
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"registered," and "registration" shall refer to a registration effected by
preparing and filing a registration statement or similar document in compliance
with the Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
Registrable Securities. "Registrable Securities" shall mean,
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subject to Section 9 and Section 12.2: (i) the Shares owned by Holders on the
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date hereof, and owned by a Holder on the date of determination, (ii) any shares
of Common Stock or other securities issued or issuable upon the conversion or
exercise of the Warrant or issued as a dividend or other distribution with
respect to, or in exchange by the Company generally for, or in replacement by
the Company generally of, such Shares; and (iii) any securities issued in
exchange for Shares in any merger or reorganization of the Company; provided,
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however, that Registrable Securities shall not include any Shares which have
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theretofore been registered and sold pursuant to the Securities Act or which
have been sold to the public pursuant to Rule 144 or any similar rule
promulgated by the Commission pursuant to the Securities Act, and, provided
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further, the Company shall have no obligation under Sections 3 and 4 to register
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any Registrable Securities of a Holder if the Company shall deliver to the
Holders requesting such registration an opinion of counsel reasonably
satisfactory to such Holders and its counsel to the effect that the proposed
sale or disposition of all of the Registrable Securities for which registration
was requested does not require registration under the Securities Act for any
sales or dispositions of such shares within the period set forth in Rule 144(e),
currently three (3) months. For purposes of this Agreement, a Person will be
deemed to be a holder of Registrable Securities whenever such Person has the
then-existing right to acquire such Registrable Securities (by conversion,
subscription or otherwise), whether or not such acquisition has actually been
effected.
Registrable Securities then outstanding. "Registrable
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Securities then outstanding" shall mean, with respect to a specified
determination date, the Registrable Securities owned by all Holders on such
date.
Registration Expenses. "Registration Expenses" shall have the
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meaning set forth in Section 7.1.
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Registration Rights Agreement means that certain Registration
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Rights Agreement entered into between certain parties in connection with the
Units Purchase Agreement and the issuance of the Series A Preferred Stock,
Common Stock Purchase Warrants, and Placement Agent Warrants in connection
therewith.
Securities Act. "Securities Act" shall mean the Securities Act
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of 1933, as amended and the rules and regulations promulgated thereunder.
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Selling Holders. "Selling Holders" shall mean, with respect to
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a specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
Series A Preferred Stock. The Series A Preferred Stock, par
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value $0.01 per share, of the Company issued and sold as part of the Units
Purchase Agreement.
Shares. "Shares" shall mean the shares of Common Stock acquired
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on exercise of a Warrant.
Shelf Registration. The Initial Shelf Registration or a
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Subsequent Shelf Registration pursuant to the Registration Rights Agreement.
Transfer. "Transfer" shall mean and include the act of selling,
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giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer".
Underwriters' Representative. "Underwriters' Representative
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shall mean the managing underwriter, or, in the case of a co-managed
underwriting, the managing underwriter designated as the Underwriters'
Representative by the co-managers.
Units Purchase Agreement means the Units Purchase Agreement
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dated as of September 19, 1997 by and between the Company and the Purchasers
listed therein.
Violation. "Violation" shall have the meaning set forth in
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Section 8.1.
Warrant. "Warrant" means any of the Warrants issued pursuant to
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the Warrant Agreement dated as of September 30, 1997 by and between the Company
and the Holders.
2.2. Usage.
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(i) References to a Person are also references to its
assigns and successors in interest (by means of merger, consolidation or sale of
all or substantially all the assets of such Person or otherwise, as the case may
be).
(ii) References to Registrable Securities "owned" by a
Holder shall include Registrable Securities beneficially owned by such Person
but which are held of record in the name of a nominee, trustee, custodian, or
other agent, but shall exclude shares of Common Stock held by a Holder in a
fiduciary capacity for customers of such Person.
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(iii) References to a document are to it as amended, waived
and otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are
to sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
(v) The definitions set forth herein are equally
applicable both to the singular and plural forms and the feminine, masculine and
neuter forms of the terms defined.
(vi) The term "including" and correlative terms shall be
deemed to be followed by "without limitation" whether or not followed by such
words or words of like import.
(vii) The term "hereof" and similar terms refer to this
Agreement as a whole.
(viii) The "date of" any notice or request given pursuant
to this Agreement shall be determined in accordance with Section 15.
Section 3. Piggyback Registrations.
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3.1. The Company agrees that it shall include the
Registrable Securities in the Initial Shelf Registration or Subsequent Shelf
Registration it files pursuant to the terms of the Registration Rights Agreement
(a "Piggyback Shelf Registration"). The Company agrees that it shall maintain
the Shelf Registration Continuously Effective with respect to such Registrable
Securities for so long as there are any Registrable Securities then outstanding,
and that the provisions of Sections 5 through 10 hereof shall apply with respect
to such Shelf Registration.
3.2. If all of the Registrable Securities are not included in
a Shelf Registration that is Continuously Effective pursuant to Section 3.1
hereof, and if at any time the Company proposes to register (including for this
purpose a registration effected by the Company for holders of the Company's
securities other than the Holders) securities under the Securities Act in
connection with the public offering solely for cash on Form X-0, X-0 or S-3 (or
any replacement or successor forms), the Company shall promptly give each Holder
of Registrable Securities written notice of such registration (a "Piggyback
Registration"). Upon the written request of each Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use all reasonable efforts to be registered
under the Securities Act all the Registrable Securities that each such Holder
shall have requested to be registered. The Company shall have the absolute right
to
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withdraw or cease to prepare or file any registration statement for any offering
referred to in this Section 3 without any obligation or liability to any Holder.
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3.3. Each Holder shall be entitled to have its Registrable
Securities included in an unlimited number of Piggyback Registrations pursuant
to this Section 3.
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Section 4. Demand Registration.
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4.1.
(i) If all of the Registrable Securities are not included
in a Shelf Registration that is Continuously Effective pursuant to Section 3.1
hereof within one hundred twenty (120) days from the date hereof, or if at any
time thereafter all of the Holders' Registrable Securities are not covered by a
Continuously Effective registration statement, the Holders of at least 25% of
the Registrable Securities may make a written request to the Company (the
"Demanding Holders"), that the Company cause there to be filed with the
Commission a registration statement meeting the requirements of the Securities
Act (a "Demand Registration"), and each Demanding Holder shall be entitled to
have included therein (subject to Section 4.6) all or such number of such
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Demanding Holder's Registrable Securities, as the Demanding Holder shall request
in writing; provided, however, that no request may be made pursuant to this
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Section 4.1 if within six (6) months prior to the date of such request a
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registration statement pursuant to this Section 4.1 shall have been declared
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effective by the Commission. Any request made pursuant to this Section 4.1 shall
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be addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Demand Registration pursuant
to this Section 4.1(i). The Holders shall be entitled to no more than four
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Demand Registrations.
(ii) The Company shall be entitled to postpone for up to
ninety (90) days the filing of any registration statement otherwise required to
be prepared and filed pursuant to this Section 4.1, if the Board determines, in
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its good faith reasonable judgment (with the concurrence of the managing
underwriter, if any), that such registration and the Transfer of Registrable
Securities contemplated thereby would materially interfere with, or require
premature disclosure of, any financing, acquisition or reorganization involving
the Company or any of its wholly owned subsidiaries and the Company promptly
gives the Demanding Holders notice of such determination; provided, however,
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that the Company shall not have postponed pursuant to this Section 4.1(ii) the
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filing of any other registration statement otherwise required to be prepared and
filed pursuant to this Section 4.1 during the twelve (12) month period ended on
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the date of the relevant request pursuant to Section 4.1(i).
(iii) Whenever the Company shall have received a demand
pursuant to Section 4.1(i) to effect the registration of any Registrable
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Securities, the Company shall promptly give written notice of such proposed
registration to all Holders. Any such Holder may, within twenty (20) days after
receipt of such notice, request in writing that all of such
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Holder's Registrable Securities, or any portion thereof designated by such
Holder, be included in the registration.
(iv) Subject to Section 4.6, in connection with an
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underwritten offering, the Company and, with the approval of the Company, other
holders of Common Stock (other than Holders) shall be given the opportunity to
include shares of Common Stock in such offering ("Other Included Shares").
4.2. Following receipt of a request for a Demand
Registration, the Company shall:
(i) File the registration statement with the Commission as
promptly as practicable, and shall use all reasonable efforts to have the
registration declared effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(ii) Use all reasonable efforts to keep the registration
statement Continuously Effective for up to two hundred seventy (270) days or
until such earlier date as of which all the Registrable Securities under the
registration statement shall have been disposed of in the manner described in
the Registration Statement, or such earlier time as the Company would not have
any obligation to include the Registrable Securities that have not been disposed
of in the manner described in the Registration Statement in a registration
pursuant to Section 4 or Section 3 pursuant to the definition of "Registrable
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Securities." Notwithstanding the foregoing, if for any reason the effectiveness
of a registration pursuant to this Section 4 is suspended or, in the case of a
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Demand Registration, postponed as permitted by Section 4.1(ii), the foregoing
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period shall be extended by the aggregate number of days of such suspension or
postponement.
4.3. The Company shall be obligated to effect no more than a
total of four Demand Registrations. For purposes of the preceding sentence,
registration shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, (ii) if after such
registration statement has become effective, such registration or the related
offer, sale or distribution of Registrable Securities thereunder is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason not attributable
to the Selling Holders and such interference is not thereafter eliminated, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the Selling Holders. If
the Company shall have complied with its obligations under this Agreement, a
right to a Demand Registration pursuant to this Section 4 shall be deemed to
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have been satisfied upon the earlier of the date as of which all of the
Registrable Securities included therein shall have been disposed of pursuant to
the Registration Statement or the date as of which such Demand Registration
shall have been Continuously Effective for a period of two hundred seventy (270)
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days. Any Demand Registration Statement which, after filing with the Commission
is withdrawn by the Holders, shall be deemed to have been effective in
determining the number of Demand Registrations the Company is obligated to
effect hereunder.
4.4. A registration pursuant to this Section 4 shall be on
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such appropriate registration form of the Commission as shall (i) be selected by
the Company and be reasonably acceptable to the Demanding Holders and (ii)
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition specified in the request pursuant to
Section 4.1(i).
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4.5. If any registration pursuant to Section 4 involves an
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underwritten offering (whether on a "firm," "best efforts" or "all reasonable
efforts" basis or otherwise), or an agented offering, the Demanding Holders
shall have the right to select the underwriter or underwriters and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
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selected shall be reasonably acceptable to the Company.
4.6. Whenever the Company shall effect a registration
pursuant to this Section 4 in connection with an underwritten offering by one or
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more Selling Holders of Registrable Securities: if the Underwriters'
Representative or Agent advises each such Selling Holder in writing that, in its
opinion, the amount of securities requested to be included in such offering
(whether by Selling Holders or by other Persons) exceeds the amount which can be
sold in such offering within a price range acceptable to the Demanding Holders,
securities shall be included in such offering and the related registration, to
the extent of the amount which can be sold within such price range, and shall be
allocated: first on a pro rata basis based on the number of shares, with
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registration rights, of Common Stock they own or have a right to purchase upon
exercise of Common Stock warrants or options or conversions of Series A
Preferred Stock among all Selling Holders and the holders of registration rights
pursuant to those certain registration rights agreements entered into by the
Company with IBM Credit Corporation, the holders of its Series A Preferred Stock
and the Common Stock warrants issued in conjunction therewith, the Placement
Agents employed by the Company in connection with the sale of such Series A
Preferred Stock and Common Stock Warrants and Carlton Xxxxxx Xxxxxxx XX and
holders of Common Stock issued in connection with an acquisition completed prior
to the date hereof and who have requested inclusion in such registration and
second by the Company and third by other holders with respect to the Other
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Included Shares, provided, however, that, so that such allocation shall not
operate to reduce the aggregate number of Registerable Securities and other
securities to be included in such registration, if the Selling Holder or other
selling securityholder does not request inclusion of the maximum number of
Registrable Securities and other securities allocated to him pursuant to the
above-described procedure, the remaining portion of his allocation shall be
reallocated among those
other selling securityholders whose allocations did not satisfy their requests
pro rata, and this procedure shall be repeated until all of the other securities
which may be included in the registration on behalf of the Holder and other
selling securityholders have been so allocated.
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Section 5. Registration Procedures. Whenever required under Section
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3 or Section 4 to effect the registration of any Registrable Securities, the
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Company shall, as expeditiously as practicable:
5.1. Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use all reasonable
efforts to cause such registration statement to become effective; provided,
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however, that before the initial filing of such registration statement, the
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Company shall furnish to one firm of counsel for the Selling Holders (selected
by the Demanding Holders, if any) a copy of such registration statement in the
form substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel.
5.2. Prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act and rules thereunder with respect to the
disposition of all securities covered by such registration statement. If the
registration is for an underwritten offering, the Company shall amend the
registration statement or supplement the prospectus whenever required by the
terms of the underwriting agreement entered into pursuant to Section 6.2. The
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Company shall amend the registration statement or supplement the prospectus so
that it will remain current and in compliance with the requirements of the
Securities Act for the period after its effective date during which the Demand
Registration is to be kept Continuously Effective by the Company pursuant to
Section 4.2(ii), and if during such period any event or development occurs as a
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result of which the registration statement or prospectus contains a misstatement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, the Company
shall promptly notify each Selling Holder, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registrable Securities such
amended or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of Registrable Securities covered by such registration
statement. Pending such amendment or supplement each such Holder shall cease
making offers or Transfers of Registrable Securities pursuant to the prior
prospectus. In the event that any Registrable Securities included in a
registration statement subject to, or required by, this Agreement remain unsold
at the end of the period during which the Company is obligated to use all
reasonable efforts to maintain the effectiveness of such registration statement,
the Company may file a post-effective amendment to the registration statement
for the purpose of removing such Securities from registered status .
5.3. Furnish to each Selling Holder of Registrable
Securities, without charge, such number of copies of the registration statement,
any pre-effective or post-effective amendment thereto, the prospectus, including
each preliminary prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act and the rules
thereunder, and such other related documents as any such Selling
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Holder may reasonably request in order to facilitate the disposition of
Registrable Securities owned by such Selling Holder.
5.4. Use all reasonable efforts (i) to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Demanding Holders) and (ii) to obtain the
withdrawal of any order suspending the effectiveness of a registration
statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of the offer and transfer of any of the Registrable
Securities in any jurisdiction, at the earliest possible moment; provided,
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however, that the Company shall not be required in connection therewith or as a
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condition thereto to qualify to do business or to file a general consent to
service of process in any such state or jurisdiction.
5.5. In the event of any underwritten or agented offering,
enter into and perform the Company's obligations under an underwriting or agency
agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company shall
also cooperate with the Demanding Holders and the Underwriters' Representative
or Agent for such offering in the marketing of the Registrable Securities,
including making available the Company's officers, accountants, counsel,
premises, books and records for such purpose, but the Company shall not be
required to incur any material out-of-pocket expense pursuant to this sentence.
5.6. Promptly notify each Selling Holder of any stop order
issued or threatened to be issued by the Commission in connection therewith (and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered).
5.7. Make generally available to the Company's security
holders copies of all periodic reports, proxy statements, and other information
referred to in Section 12.1 and an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act no later than 90 days following the end
of the 12-month period beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of each registration
statement filed pursuant to this Agreement.
5.8. Make available for inspection by any Selling Holder, any
underwriter participating in such offering and the representatives of such
Selling Holder and Underwriter (but not more than one firm of counsel to such
Selling Holders), all financial and other information as shall be reasonably
requested by them, and provide the Selling Holder, any underwriter participating
in such offering and the representatives of such Selling Holder and Underwriter
the opportunity to discuss the business affairs of the Company with its
principal executives and independent public accountants who have certified the
audited financial statements included in such registration statement, in each
case all as necessary to enable them to exercise their due diligence
responsibility under the Securities Act; provided,
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however, that information that the Company determines, in good faith, to be
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confidential and which the Company advises such Person in writing, is
confidential shall not be disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Company or the related Selling Holder
of Registrable Securities agrees to be responsible for such Person's breach of
confidentiality on terms reasonably satisfactory to the Company .
5.9. Use the Company's commercially reasonable efforts to
obtain a so-called "comfort letter" from its independent public accountants, and
legal opinions of counsel to the Company addressed to the Selling Holders, in
customary form and covering such matters of the type customarily covered by such
letters, and in a form that shall be reasonably satisfactory to Demanding
Holders. The Company shall furnish to each Selling Holder a signed counterpart
of any such comfort letter or legal opinion. Delivery of any such opinion or
comfort letter shall be subject to the recipient furnishing such written
representations or acknowledgments as are customarily provided by selling
shareholders who receive such comfort letters or opinions.
5.10. Provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
5.11. Use all reasonable efforts to cause the Registrable
Securities covered by such registration statement (i) if the Common Stock is
then listed on a securities exchange or included for quotation in a recognized
trading market, to continue to be so listed or included for a reasonable period
of time after the offering, and (ii) to be registered with or approved by such
other United States or state governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
Selling Holders of Registrable Securities to consummate the disposition of such
Registrable Securities.
5.12. Use the Company's reasonable efforts to provide a
CUSIP number for the Registrable Securities prior to the effective date of the
first registration statement including Registrable Securities.
5.13. Take such other actions as are reasonably required in
order to expedite or facilitate the disposition of Registrable Securities
included in each such registration.
Section 6. Holders' Obligations. It shall be a condition
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precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any Selling Holder of
Registrable Securities that such Selling Holder shall:
6.1. Furnish to the Company such information regarding such
Selling Holder, the number of the Registrable Securities owned by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of such Selling
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Holder's Registrable Securities, and to cooperate with the Company in preparing
such registration.
6.2. If applicable, agree to sell their Registrable Securities to
the underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and to execute
the underwriting agreement agreed to by the Demanding Holders (in the case of a
registration under Section 4), or the Company and the Selling Holders (in the
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case of a registration under Section 3).
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Section 7. Expenses of Registration. Expenses in connection with
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registrations pursuant to this Agreement shall be allocated and paid as
follows:
7.1. With respect to each Demand Registration, the Company shall
bear and pay all expenses incurred in connection with any registration, filing,
or qualification of Registrable Securities with respect to such Demand
Registration for each Selling Holder (which right may be assigned to any Person
to whom Registrable Securities are Transferred as permitted by Section 9),
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including all registration, filing and The Nasdaq Stock Market's National Market
fees, all fees and expenses of complying with securities or blue sky laws, all
word processing, duplicating and printing expenses, messenger and delivery
expenses, the reasonable fees and disbursements of counsel for the Company, and
of the Company's independent public accountants, including the expenses of "cold
comfort" letters required by or incident to such performance and compliance, and
the reasonable fees and disbursements of one firm of counsel for the Selling
Holders of Registrable Securities (selected by Demanding Holders owning a
majority of the Registrable Securities owned by Demanding Holders to be included
in a Demand Registration) (the "Registration Expenses"), but excluding
underwriting discounts and commissions relating to Registrable Securities (which
shall be paid on a pro rata basis by the Selling Holders).
7.2. The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registrations or Piggyback Shelf
Registration pursuant to Section 3 for each Selling Holder (which right may be
---------
Transferred to any Person to whom Registrable Securities are Transferred as
permitted by Section 9), but excluding underwriting discounts and commissions
---------
relating to Registrable Securities (which shall be paid on a pro rata basis by
the Selling Holders of Registrable Securities).
7.3. Any failure of the Company to pay any Registration Expenses
as required by this Section 7 shall not relieve the Company of its obligations
---------
under this Agreement.
Section 8. Indemnification; Contribution. If any Registrable
-----------------------------
Securities are included in a registration statement under this Agreement,
including a Shelf Registration:
-12-
8.1. To the extent permitted by applicable law, the Company
shall indemnify and hold harmless each Selling Holder, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, and each
officer, director, partner, employee, agent and consultant of such Selling
Holder and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto;
(ii) The omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or
(iii) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 8.1 shall
-------- ------- -----------
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
connection with such registration; provided, further, that the indemnity
-------- -------
agreement contained in this Section 8 shall not apply to any underwriter to the
extent that any such loss is based on or arises out of an untrue statement or
alleged untrue statement of a material fact, or an omission or alleged omission
to state a material fact, contained in or omitted from any preliminary
prospectus if the final prospectus shall correct such untrue statement or
alleged untrue statement, or such omission or alleged omission, and a copy of
the final prospectus has not been sent or given to such person at or prior to
the confirmation of sale to such person if such underwriter was under an
obligation to deliver such final prospectus and failed to do so. The Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders.
-13-
8.2. To the extent permitted by applicable law, each Selling
Holder shall indemnify and hold harmless the Company, each of its directors,
each of its officers who shall have signed the registration statement, each
Person, if any, who controls the Company within the meaning of the Securities
Act, any other Selling Holder, any controlling Person of any such other Selling
Holder and each officer, director, partner, and employee of such other Selling
Holder and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may otherwise become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Selling Holder expressly for use in connection with such
registration; provided, however, that the indemnification required by this
-------- -------
Section 8.2 shall not apply to amounts paid in settlement of any such loss,
-----------
claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, which consent
shall not be unreasonably withheld.
8.3. Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, suit, proceeding,
---------
investigation or threat thereof made in writing for which such indemnified party
may make a claim under this Section 8, such indemnified party shall deliver to
---------
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
-------- -------
have the right to retain its own counsel, with the fees and disbursements and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time following the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
-------
8 but shall not relieve the indemnifying party of any liability that it may have
-
to any indemnified party otherwise than pursuant to this Section 8. Any fees and
---------
expenses incurred by the indemnified party (including any fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) shall be paid to the indemnified party, as incurred, within thirty
(30) days of written notice thereof to the indemnifying party (regardless of
whether it is ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses or (ii) the
-14-
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or in addition to those available to the indemnifying
party and that the assertion of such defenses would create a conflict of
interest such that counsel employed by the indemnifying party could not
faithfully represent the indemnified party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action, claim or
proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such indemnified parties, unless in the reasonable
judgment of such indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
action, claim or proceeding, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional counsel or counsels).
No indemnifying party shall be liable to an indemnified party for any settlement
of any action, proceeding or claim without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
8.4. If the indemnification required by this Section 8 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 8:
---------
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 8.1 and Section 8.2, any legal or other fees or expenses reasonably
----------- -----------
incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8.4 were determined by pro
-----------
rata allocation or by any
-15-
other method of allocation which does not take into account the equitable
considerations referred to in Section 8.4(i). 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.
8.5. If indemnification is available under this Section 8, the
---------
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 8 without regard to the relative fault of such
---------
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 8.4.
-----------
8.6. The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 8 shall survive the completion of any
---------
offering of Registrable Securities pursuant to a registration statement under
this Agreement, and otherwise.
Section 9. Transfer of Registration Rights. Rights with respect to
-------------------------------
Registrable Securities may be Transferred as follows: (i) the rights of a Holder
to require a Demand Registration pursuant to Section 4 may be Transferred to any
---------
Person in connection with the Transfer to such Person by such Holder of at least
1,000 shares or share equivalents of Registrable Securities, and (ii) the rights
of a Holder to participate in a Piggyback or Piggyback Shelf Registration
pursuant to Section 3 or a Put pursuant to Section 11 may be Transferred by such
--------- ----------
Holder to any Person in connection with the Transfer of Registrable Securities
to such Person, in all cases, if (x) any such Transferee that is not a party to
this Agreement shall have executed and delivered to the Secretary of the Company
a properly completed agreement substantially in the form of Exhibit A, and (y)
---------
the Transferor shall have delivered to the Secretary of the Company, no later
than 15 days following the date of the Transfer, written notification of such
Transfer setting forth the name of the Transferor, name and address of the
Transferee, and the number of Registrable Securities which shall have been so
Transferred.
Section 10. Holdback. Each Holder entitled pursuant to this Agreement
--------
to have Registrable Securities included in a registration statement prepared
pursuant to this Agreement, if so requested by the Underwriters' Representative
or Agent in connection with an offering of any Registrable Securities, shall not
effect any public sale or distribution of shares of Common Stock or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, including a sale pursuant to Rule 144 under the Securities Act (except as
part of such underwritten or agented registration), during the 5-day period
prior to, and during such period as the Underwriter's Representative or Agent
may request, not to exceed a period of 180 days, beginning on, the date such
registration statement is declared effective under the Securities Act by the
Commission, provided that such Holder is timely notified of such effective date
--------
in writing by the Company or such Underwriters' Representative or Agent. In
order to enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder until the end of such period.
-16-
Section 11. Put Option If the Company has not Registered all of the
----------
Registrable Securities in accordance with Section 3 hereof within one hundred
---------
twenty (120) days from the date hereof, or if at any time thereafter all of the
Holders' Registrable Securities are not then included in a Continuously
Effective registration statement, then, for such time as the Registrable
Securities are not so included, the Holders shall have an option ("Put Option")
to cause the Company to repurchase all or any portion of the Warrants (the "Put
Warrants") for a price (the "Put Price") equal to (i) the difference between the
Warrant Exercise Price and the highest reported offer price for the Company's
Common Stock on the principal exchange or market on which the Company's Common
Stock then trades during such period of time (ii) multiplied by the number of
Warrants put. The notice ("Put Notice") shall be delivered by the Holder or
Holders who elect to exercise the Put Option, in writing, to the Company at its
principal place of business, attention Corporate Secretary, in accordance with
Section 15.2. The Put Notice shall specify, in addition to the number of Put
------------
Warrants, the maximum offered price of the Company's Common Stock, the date on
which such maximum offered price occurred, and the calculation of the Put Price
for the Put Warrant to be purchased by the Company pursuant to the terms hereof.
Within fifteen (15) days of the notice, the Company shall notify the electing
Holders of a date and time (which shall be no more than twenty five (25) days
after the Company's receipt of the Put Notice) on which the Put Warrants shall
be delivered to the Company at its principal place of business against payment
by bank check, cashiers' check or wire transfer of the Put Price. In lieu of a
cash payment, the Company may pay the Put Price by means of a promissory note on
terms and conditions no less favorable than the notes issued to certain Holders
pursuant to the Note Purchase Agreement dated September 30, 1997, but having a
maturity no greater than such notes.
Section 12. Covenants of the Company. The Company hereby agrees and
------------------------
covenants as follows:
12.1. The Company shall file as and when applicable, on a timely
basis, all reports required to be filed by it under the Exchange Act. If the
Company is not required to file reports pursuant to the Exchange Act, upon the
request of any Holder of Registrable Securities, the Company shall make publicly
available the information specified in Rule 144 of the Securities Act, and take
such further action as may be reasonably required from time to time and as may
be within the reasonable control of the Company, to enable the Holders to
Transfer Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the
Securities Act or any similar rule or regulation hereafter adopted by the
Commission.
12.2. Company shall not, directly or indirectly, (x) enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation or (y) Transfer or agree to Transfer all or
substantially all the Company's assets, unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or
the Transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Securities" shall be deemed to include the securities
which the Holders of
-17-
Registrable Securities would be entitled to receive in exchange for Registrable
Securities pursuant to any such merger, consolidation or reorganization.
12.3. The Company shall not grant to any Person (other than a
Holder of Registrable Securities) any registration rights with respect to
securities of the Company, or enter into any agreement, that would be
inconsistent with the terms of this Agreement.
Section 13. Amendment, Modification and Waivers; Further Assurances.
-------------------------------------------------------
(i) This Agreement may be amended with the consent of the
Company, and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company shall
have obtained the written consent of Holders owning Registrable Securities
possessing a Majority of the Registrable Securities then outstanding to such
amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof.
No written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 14 Assignment; Benefit. This Agreement and all of the
-------------------
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, that except as specifically provided herein with
respect to certain matters, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by the Company
without the prior written consent of Holders owning Registrable Securities
possessing a majority in number of the Registrable Securities outstanding on the
date as of which such delegation or assignment is to become effective. A Holder
may Transfer its rights with respect to requiring Demand Registrations and
Piggyback Registrations hereunder to a successor in interest to the Registrable
Securities owned by such assignor only as permitted by Section 9.
---------
-18-
Section 15. Miscellaneous
-------------
15.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
15.2. Notices. All notices and requests given pursuant to this
-------
Agreement shall be in writing and shall be made by hand-delivery, first-class
mail (registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day delivery to the relevant
address specified on Schedule I to this Agreement or in the relevant agreement
----------
in the form of Exhibit A whereby such party became bound by the provisions of
---------
this Agreement. Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each such
notice and request shall be deemed given shall be: at the time delivered, if
personally delivered or mailed; when receipt is acknowledged, if sent by
facsimile; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next business day delivery.
15.3. Entire Agreement; Integration. This Agreement supersedes
-----------------------------
all prior agreements between or among any of the parties hereto with respect to
the subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
15.4. Injunctive Relief. Each of the parties hereto acknowledges
-----------------
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15.5 Section Headings. Section headings are for convenience of
----------------
reference only and shall not affect the meaning of any provision of this
Agreement.
15.6. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
15.7. Severability. If any provision of this Agreement shall be
------------
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would
-19-
be unreasonable, in which case the parties hereto shall negotiate in good faith
as to appropriate amendments hereto.
15.8. Filing. A copy of this Agreement and of all amendments
------
thereto shall be filed at the principal executive office of the Company and with
the transfer agent for the Common Stock of the Company.
15.9. Termination. This Agreement may be terminated at any time
-----------
by a written instrument signed by the parties hereto. Unless sooner terminated
in accordance with the preceding sentence, this Agreement (other than Section 8
---------
hereof) shall terminate in its entirety at the earlier of (i) such date as there
shall be no Registrable Securities outstanding or (ii) the eighth anniversary of
the date hereof, provided that any shares of Common Stock previously subject to
--------
this Agreement shall not be Registrable Securities following the sale of any
such shares in an offering registered pursuant to this Agreement.
15.10 Attorneys' Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
15.11. No Third Party Beneficiaries. Nothing herein expressed or
----------------------------
implied is intended to confer upon any person, other than the parties hereto or
their respective permitted assigns, successors, heirs and legal representatives,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
15.12. Jury Trial Waiver. EACH OF IBM CREDIT AND THE COMPANY
-----------------
HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
(INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH IBM CREDIT AND THE COMPANY
INITIATE AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT
OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT IN CONNECTION HEREWITH.
-20-
IN WITNESS WHEREOF the undersigned have executed this Registration and
Put Rights Agreement as of the date first written above.
Holders:
-------
IBM Credit Corporation,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Remarketer Loan Manager
The Company:
-----------
Western Micro Technology, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
SIGNATURE PAGE 1 OF 1
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION AND PUT RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of the common
stock, $.01 par value per share [or describe other capital stock received in
exchange for such common stock] (the "Registrable Securities"), of Western Micro
Technology, Inc., a Delaware corporation (the "Company"), as a condition to the
receipt of such Registrable Securities, acknowledges that matters pertaining to
the registration of such Registrable Securities is governed by the Registration
and Put Rights Agreement dated as of September 30, 1997 initially among the
Company and the Holders referred to therein (the "Agreement"), and the
undersigned hereby (1) acknowledges receipt of a copy of the Agreement, and (2)
agrees to be bound as a Holder by the terms of the Agreement, as the same has
been or may be amended from time to time.
Agreed to this __ day of ______________, ____________.
_________________________________
_________________________________*
_________________________________*
*Include address for notices.
EXHIBIT A - 1
SCHEDULE I
TO REGISTRATION AND PUT RIGHTS AGREEMENT
HOLDER:
IBM Credit Corporation
Address: 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Remarketer Financing Center Manager
Telecopy: (510) 2
COMPANY:
WESTERN MICRO TECHNOLOGY, INC,
Adress: 000 X. Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Attention: Cheif Financial Officer
Telecopy: 408/341-4768
SCHEDULE I - PAGE 1
