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Exhibit 4.8
REGISTRATION RIGHTS AGREEMENT
DATED AS OF __________, 1997
BY AND BETWEEN
PIXAR
AND
DISNEY ENTERPRISES, INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
_________, 1997, by and between PIXAR, a California corporation (the "Company"),
and Disney Enterprises, Inc., a Delaware corporation and wholly owned subsidiary
of The Xxxx Disney Company (the "Purchaser").
A. The Purchaser intends to purchase a minority interest in the Company
pursuant to the terms and conditions of a certain Common Stock and Warrant
Purchase Agreement dated as of February 23, 1997 (the "Purchase Agreement").
B. The Purchase Agreement requires that the Company enter into this
Agreement with the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, the parties to this
Agreement hereby agree as follows:
1. Effectiveness. The rights and obligations of the parties hereto shall
be effective only upon the closing of the transactions contemplated by the
Purchase Agreement.
2. Demand Registration.
(a) If, at any time after the Closing (as defined in the Purchase
Agreement), the Purchaser shall request (a "Demand") the Company in writing to
register under the Securities Act of 1933, as amended (the "Securities Act"),
any shares of the Common Stock of the Company (the "Common Stock") acquired by
the Purchaser by exercise of the Warrants (as defined in the Purchase Agreement)
(the shares of Common Stock so acquired and subject to such request being herein
referred to as the "Subject Stock"), the Company shall use its best efforts to
cause the shares of Subject Stock specified in such request to be registered as
soon as reasonably practicable so as to permit the sale thereof, and in
connection therewith shall prepare and file a Form S-3 registration statement
(or similar form which may be promulgated in the future) with the Securities and
Exchange Commission (the "SEC") under the Securities Act to effect such
registration; provided, however, that such request shall (i) specify the number
of shares of Subject Stock intended to be offered and sold, which number of
shares shall represent Subject Stock (A) with an aggregate market value of at
least $5,000,000, based on the average closing sale price of the Common Stock
for the ten (10) trading days preceding the date prior to the date of the
Purchaser's request first received by the Company, and (B) that does not exceed
5% of the then outstanding Common Stock of the Company, (ii) express the present
intention of the Purchaser to offer or cause the offering of such shares of
Subject Stock for distribution, (iii) describe the nature or method of the
proposed offer and sale thereof, and (iv) contain the undertaking of the
Purchaser to provide all such information and materials and take all such action
as may be required in order to permit the Company to comply with all applicable
requirements of the SEC and to obtain any desired acceleration of the effective
date of such registration statement.
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(b) Notwithstanding the foregoing and Section 4 hereof, upon
delivery to the Purchaser of a written notice, the Company shall be entitled to
postpone filing of the registration statement, and may withhold efforts to cause
the registration statement to become effective, for a reasonable period of time
(not to exceed ninety (90) days) if (i) the Company is contemplating filing a
registration statement within ninety (90) days of such request for registration
(which shall not affect the Purchaser's other rights hereunder, including
without limitation the Purchaser's rights under Section 3 below), (ii) the
Company determines in good faith that such registration might interfere with or
affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised or (iii)
the Company determines in good faith that such registration might involve
initial or continuing disclosure obligations that might not be in the best
interests of the Company or its shareholders. The Company shall not be required
to effect more than one demand registration statement under this Agreement;
provided, however, that if any postponement pursuant to the preceding sentence
extends beyond the date on which the Warrants expire, the obligations of the
Company hereunder shall be extended by a number of days necessary to complete
the distribution of securities subject to such postponement. In a case of
postponement pursuant to clause (i) of the first sentence of this paragraph (b),
the request for registration will not constitute a Demand for purposes of
determining the number of Demands permitted pursuant to this paragraph unless
the contemplated registration by the Company is abandoned or not consummated
within the ninety (90) day period and then the Company successfully registers
the shares of Subject Stock pursuant to the Demand.
(c) If, after a registration statement becomes effective, the
Company advises the Purchaser that the Company considers it appropriate for the
registration statement to be amended, the Purchaser shall suspend any further
sales of the registered shares until the Company advises the Purchaser that the
registration statement has been amended. The ninety (90) day time period
referred to in Section 4 hereof during which the registration statement must be
kept current after its effective date shall be extended for an additional number
of business days equal to the number of business days during which the right to
sell shares was suspended pursuant to the preceding sentence, but no event will
the Company be required to update the registration statement after the
expiration of this Agreement.
3. Company Registration.
(a) If, at any time after the Closing the Company shall determine to
register any shares of Common Stock, whether for its own account or for a
security holder or holders exercising their respective demand registration
rights (to the extent any may be granted in the future), other than (i) a
registration relating solely to employee benefit plans on Form S-1 or S-8 or
similar forms which may be promulgated in the future, or (ii) a registration on
Form S-4 or similar form which may be promulgated in the future relating solely
to a SEC Rule 145 transaction, the Company will promptly give to the Purchaser
written notice thereof and include in such registration (and any related
qualification under Blue Sky laws or other compliance), and in any underwriting
involved therein, all Subject Stock specified in a written request, made within
fifteen (15) business days after receipt of such written notice from the Company
by the Purchaser.
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(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Purchaser as a part of the written notice given pursuant to Section
3(a). In such event the right of the Purchaser to registration pursuant to this
Section 3 shall be conditioned upon such Purchaser's agreeing to participate in
such underwriting and in the inclusion of the Purchaser's Subject Stock in the
underwriting to the extent provided herein. The Purchaser shall (together with
the Company) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company. If
the Purchaser disapproves of the terms of any such underwriting, the Purchaser
may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Common Stock excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
(c) Notwithstanding any other provision of this Section 3, if the
Company or any underwriter determines that marketing or other factors require a
limitation of the number of shares to be registered or underwritten, the Company
or such underwriter may exclude all or any portion of the Subject Stock
requested to be included. The Company shall so advise the Purchaser and the
other holders distributing their Common Stock through such underwriting, if
any, and the number of shares of Subject Stock and other securities that may be
included in the registration and underwriting, if any, shall be allocated among
all holders thereof (other than those holders who are exercising their demand
registration rights) pro rata, based, as nearly as practicable, on the
respective amounts of Common Stock entitled to inclusion in such registration
held by such holders at the time of filing the registration statement.
Notwithstanding the foregoing, Xxxxxx X. Jobs shall not be subject to any such
pro rata reduction and shall be entitled to include as many shares as he and the
Company shall so agree in any such registration and underwriting.
4. Obligations of the Company. Whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any Common Stock under the Securities Act, the Company shall (i) prepare and,
as soon as possible, file with the SEC a registration statement with respect to
the shares of Subject Stock, and shall use its best efforts to cause such
registration statement to become effective and to remain effective until the
earlier of the sale of the shares of Subject Stock so registered or ninety (90)
days subsequent to the effective date of such registration; (ii) prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to make and
to keep such registration statement effective and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of all
securities proposed to be registered in such registration statement until the
earlier of the sale of the shares of Subject Stock so registered or ninety (90)
days subsequent to the effective date of such registration statement, (iii)
furnish to the Purchaser such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus) in conformity
with the requirements of the Securities Act as the Purchaser may reasonably
request in order to effect the offering and sale of the shares of Subject Stock
to be offered and sold, but only while the Company shall be required under the
provisions hereof to cause the registration statement to remain current; (iv)
use its best efforts to register or qualify the shares of Subject Stock covered
by such registration statement under the securities or blue sky laws of such
states as the Purchaser shall reasonably request, maintain any such registration
or qualification current until the earlier of the sale of the shares of Subject
Stock so registered or thirty (30) days subsequent to the effective date of the
registration statement, and do any and all other acts and things either
necessary or advisable to enable the Purchaser to consummate the public sale or
other disposition of the shares of Subject Stock in jurisdictions where the
Purchaser desires to effect such sales or other disposition (but the Company
shall not be required to take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not so subject or
to qualify as a foreign corporation in any
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jurisdiction where the Company is not so qualified); (v) list the shares of
Subject Stock on the NASDAQ National Market System (or any other stock exchange
on which the Common Stock of the Company is listed at the time of registration);
and (vi) take all such other action either necessary or desirable to permit the
shares of Subject Stock held by the Purchaser to be registered and disposed of
in accordance with the method of disposition described herein. If requested, and
provided that the underwriter or underwriters are reasonably satisfactory to the
Company, the Company shall enter into an underwriting agreement with a
nationally recognized investment banking firm or firms containing
representations, warranties, indemnities and agreements then customarily
included by an issuer in underwriting agreements with respect to secondary
distributions. The Company shall not cause the registration under the Securities
Act of any other shares of its Common Stock to become effective (other than
registration of any employee stock plan, or registration in connection with any
Rule 145 or similar transaction) during the effectiveness of a registration
requested hereunder for an underwritten public offering if, in the judgment of
the underwriter or underwriters, marketing factors would adversely affect the
selling price of the Subject Stock. In connection with any offering of shares of
Subject Stock registered pursuant to this Agreement, the Company shall furnish
the Purchaser with unlegended certificates representing ownership of the shares
of Subject Stock being sold in such denominations as the Purchaser shall
request.
5. Expenses.
(a) All regular costs and expenses incurred in connection with any
registration pursuant to Section 2 shall be borne by the Purchaser, and all
regular costs and expenses, other than discounts and commissions applicable to
shares not sold by the Company, incurred in connection with any registration
pursuant to Section 3 shall be borne by the Company. The regular costs and
expenses of any such registration shall include, without limitation, the
reasonable fees and expenses of the Company's counsel and its accountants, the
costs and expenses of the Company incident to the preparation, printing and
filing under the Securities Act of the registration statement and all amendments
and supplements thereto and the cost of furnishing copies of each preliminary
prospectus, each final prospectus and each amendment or supplement thereto to
underwriters, dealers and other purchasers of the securities so registered, the
costs and expenses incurred in connection with the qualification of such
securities so registered under the "blue sky" laws of various jurisdictions, the
fees and expenses of the Company's transfer agent, listing fees and all other
miscellaneous costs and expenses typically incident to such registration
(collectively, "Registration Expenses").
(b) Excluding the Registration Expenses incurred in connection with
any registration pursuant to Section 3 made on behalf of the Company, the
Purchaser (and other holders including any Common Stock in such registration)
shall pay all other expenses incurred on its behalf with respect to any
registration pursuant to Section 2 or 3, including, without limitation, any
counsel for the Purchaser and all underwriting discounts and selling commissions
with respect to the Subject Stock sold by them pursuant to such registration
statement.
6. Indemnification.
(a) Indemnification by the Company. In the case of any offering
registered pursuant to this Agreement, the Company agrees to indemnify and hold
the Purchaser, each of its directors and officers, each underwriter of shares of
Subject Stock under such registration and each person who controls any of the
foregoing within the meaning of Section 15 of the Securities Act harmless
against any and all losses, claims, damages or liabilities, including any of the
foregoing incurred in settlement of any litigation
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commenced or threatened, to which they or any of them may become subject under
the Securities Act or any other statute or common law or otherwise, and to
reimburse them, from time to time upon request, for any legal or other expenses
incurred by them in connection with investigating any claims and defending any
actions, insofar as any such losses, claims, damages, liabilities or actions
shall arise out of or shall be based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the sale of such shares of Subject Stock, or 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 (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus (as amended or supplemented if the Company shall have
filed with the SEC any amendment thereof or supplement thereto) if used prior to
the effective date of such registration statement or contained in the prospectus
(as amended or supplemented if the Company shall have filed with the SEC any
amendment thereof or supplement thereto), if used within the period during which
the Company shall be required to keep the registration statement to which such
prospectus relates current pursuant to the terms of this Agreement, or the
omission or alleged omission to state therein (if so used) a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
indemnification agreement contained in this Section 6(a) shall not apply to such
losses, claims, damages, liabilities or actions which shall arise from the sale
of shares of Subject Stock to any person if such losses, claims, damages,
liabilities or actions shall arise out of or shall be based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged omission,
if such statement or omission shall have been (x) made in reliance upon and in
conformity with information furnished in writing to the Company by Purchaser or
any such underwriter specifically for use in connection with the preparation of
the registration statement or any preliminary prospectus or prospectus contained
in the registration statement or any such amendment thereof or supplement
thereto, or (y) made in any preliminary prospectus, and the prospectus contained
in the registration statement as declared effective or in the form filed by the
Company with the SEC pursuant to Rule 424 under the Securities Act shall have
corrected such statement or omission and a copy of such prospectus shall not
have been sent or given to such person at or prior to the confirmation of such
sale to him.
(b) Indemnification by the Purchaser. In the case of each offering
registered pursuant to this Agreement, the Purchaser agrees, and each
underwriter participating therein shall agree, in the same manner and to the
same extent as set forth in Section 6(a) of this Agreement, severally to
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, its
directors and those officers of the Company who shall have signed any such
registration statement with respect to any statement in or omission from such
registration statement or any preliminary prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) or prospectus contained
in such registration statement (as amended or as supplemented, if amended or
supplemented as aforesaid), if such statement or omission shall have been made
in reliance upon and in conformity with information furnished in writing to the
Company by the Purchaser or such underwriter specifically for use in connection
with the preparation of such registration statement or any preliminary
prospectus or prospectus contained in such registration statement or any such
amendment thereof or supplement thereto.
(c) Notice of Claims. Each party indemnified under Section 6(a) or
Section 6(b) of this Agreement shall, promptly after receipt of notice of the
commencement of any action against such indemnified party in respect of which
indemnity may be sought, notify the indemnifying party in writing of the
commencement thereof. The failure of any indemnified party so to notify an
indemnifying party of any such action shall not relieve the indemnifying party
from any liability in respect of such action which it may
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have to such indemnified party on account of the indemnity agreement contained
in Section 6(a) or Section 6(b) of this Agreement, unless the indemnifying party
was prejudiced by such failure, and in no event shall relieve the indemnifying
party from any other liability which it may have to such indemnified party. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under Section 6(a) or Section 6(b) of this Agreement for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the above, however, if representation of one or
more indemnified parties by the counsel retained by the indemnifying party would
be inappropriate due to actual conflicting interests between such indemnified
parties (the "conflicting indemnified parties") and any other party represented
by such counsel in such proceeding, then such conflicting indemnified parties
shall have the right to retain one separate counsel, chosen by the holders of a
majority of the Subject Stock included in the registration, at the expense of
the indemnifying party. No indemnifying party, (i) in the defense of any such
claim or litigation, shall, except with the consent of each indemnified party,
which consent shall not unreasonably be withheld, 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, or (ii)
shall be liable for amounts paid in any settlement if such settlement is
effected without the consent of the indemnifying party, which consent shall not
be unreasonably withheld.
7. Termination of Registration Rights. The registration rights granted
pursuant to this Agreement shall terminate at such time as all shares of Subject
Stock beneficially owned by the Purchaser can be sold within any given
three-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144 and a written opinion to that effect of
legal counsel for the Company is delivered to the Purchaser which shall be
reasonably satisfactory in form and substance to legal counsel for the
Purchaser.
8. Notices. Any notice or other communication given under this Agreement
shall be sufficient if in writing and sent by personal service, facsimile,
courier service promising overnight delivery or registered or certified mail,
return receipt requested, postage prepaid, to a party at its address set forth
below (or at such other address as shall be designated for such purpose by such
party in a written notice to the other party hereto):
(1) if to the Company, to it at:
PIXAR
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx X. Xxxx, Esq.
with a copy to:
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Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
(2) if to the Purchaser, to it at:
Disney Enterprises, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxx
with a copy to:
Disney Enterprises, Inc.
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices and communications shall be effective when received by the
addressee. In the event that any date provided for in this Agreement falls on a
Saturday, Sunday or legal holiday, such date shall be deemed extended to the
next business day.
9. Captions and Headings. The captions and headings used herein are for
convenience and ease of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.
10. Entire Agreement; Amendments. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and supersede all prior agreements and understandings
among the parties relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
11. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of California as applied to contracts entered into solely
between residents of, and to be performed entirely within, such state.
12. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by the Purchaser without
the prior written consent of the Company.
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13. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restriction
of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
14. No Third Party Rights. Nothing in this Agreement shall create or be
deemed to create any rights in any person or entity not a party to this
Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts. All of such counterparts together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date aforesaid.
"COMPANY" PIXAR
By: ___________________________
Name:
Title:
"PURCHASER" DISNEY ENTERPRISES, INC.
By: ___________________________
Name:
Title:
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