EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made as of
February 19, 1999 by and between Coinstar, Inc., a Delaware corporation (the
"COMPANY") and Bank Austria Creditanstalt Corporate Finance, Inc. ("BANK").
WITNESSETH:
WHEREAS, pursuant to that certain Warrant to Purchase Stock of even date
herewith issued by the Company to Bank (the "WARRANT"), Bank has the right to
acquire certain shares of the common stock of the Company; and
WHEREAS, in partial consideration for Bank's agreement to enter into loan
certain funds to the Company, the Company has agreed to issue the Warrant and to
provide Bank with certain registration rights with respect to the common stock
issuable upon exercise of the Warrant.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth herein, the Company and Bank
agree as follows:
1. DEFINITIONS. As used in this Agreement:
a. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
b. "SECURITIES ACT" means the Securities Act of 1933, as amended.
c. "FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
d. "HOLDER" means: (i) Bank, or (ii) a transferee of Registrable
Securities by Bank, to whom registration rights under this Agreement are
assigned pursuant to Section 4 of this Agreement.
e. "REGISTRABLE SECURITIES" means for each Holder the shares of
the Company's common stock issued to such Holder upon exercise of the Warrant,
together with all other shares of Company common stock issued in respect thereof
(by way of stock split, dividend or otherwise), and for all Holders the
aggregate of all Registrable Securities held by all such Holders. Registrable
Securities shall not include any shares of Company common stock transferred by a
Holder pursuant to Section 4 hereof to any person who does not agree to be bound
by the terms of this Agreement.
f. "SEC" means the Securities and Exchange Commission.
g. "CREDIT AGREEMENT" means that certain Credit Agreement dated
as of the date hereof by and among the Company, as the borrower, certain
financial institutions (each, "Lender", and collectively, the "Lenders"), and
Imperial Bank, as agent for the Lenders.
Capitalized terms not otherwise defined herein have the meanings given
to them in the Warrant.
2. REGISTRATION OF SHARES ISSUABLE UPON EXERCISE OF THE WARRANT.
(a) Upon the written request of Holders of not less than 100% of
Registrable Securities, the Company shall file a registration statement on Form
S-3 with the SEC covering the Registrable Securities within 60 days of the date
on which all indebtedness and obligations owing to Bank (or permitted assignee)
under the Credit Agreement have been repaid in full and Bank (or permitted
assignee) has no further commitment to make loans or extend credit thereunder
(such date being the "Loan Termination Date"), and shall use all reasonable
efforts to cause such registration statement to become effective no later than
one hundred twenty (120) days following the Loan Termination Date; provided,
however, that each holder of Registrable Securities shall provide all such
information and materials to the Company 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; and provided further, that the Company
shall not be obligated to keep the registration statement in effect longer than
45 days following its effective date. Such provision of information and
materials is a condition precedent to the obligations of the Company pursuant to
this Section 2(a). The offering made pursuant to such registration shall not be
underwritten.
(b) If the Company shall determine to register any of its securities,
whether for its own account or for the account of any other party, the Company
will:
(i) promptly give to each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration, and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from the
Company by any Holders, except as limited under Section 2(b) below.
Notwithstanding the foregoing, the Company shall not be required to
notify Holders or include Registrable Securities in any registration (i) on SEC
Form X-0, X-0 or S-8 relating solely to employee stock option or purchase plans
or (ii) on Form S-4 relating solely to a transaction within the scope of Rule
145.
(c) If the registration of which the Company gives notice is for a
public
-2-
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 2(b)(i). In such event the
right of any Holder to registration pursuant to this Section 2 ("COMPANY
REGISTRATION") shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. The Company and all Holders
proposing to distribute their securities through such underwriting
("PARTICIPATING HOLDERS") shall enter into an underwriting agreement in
customary form with the underwriters selected by the Company. Notwithstanding
any other provision of this Section 2, if the underwriters determine that
marketing factors require a limitation of the number of shares to be
underwritten, the underwriters and the Company may limit the number of
Registrable Securities to be included in the registration and underwriting, or
may exclude Registrable Securities entirely from such registration and
underwriting; PROVIDED, HOWEVER, that no Registrable Securities shall be so
excluded unless there are first excluded all other securities proposed to be
included in such registration (other than securities registered for the account
of the Company). The Company shall advise all Holders of any such limitation,
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders exercising
their registration rights in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders. In the event
of any such limitation of the number of shares to be underwritten, the Company
shall so advise all Participating Holders, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among the Participating Holders in proportion, as nearly as
practicable, as the respective amounts of Registrable Securities then held by
each Participating Holder bears to the total number of Registrable Securities
held by all Participating Holders. If any Participating Holder disapproves of
the terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(d) The costs and expenses of any registration pursuant to this
Section 2, including, without limitation, printing expenses, legal fees and
disbursements of counsel for the Acquiror, "blue sky" expenses, accounting fees
and filing fees, but not including underwriting commissions or similar charges,
legal fees and disbursements of counsel for the selling Holders, shall be borne
by the Company. All expenses of any registered offering not otherwise borne by
the Company shall be borne pro rata among the Participating Holders (and the
Company and other holders selling securities in the offering) on the basis of
the number of shares registered.
3. INDEMNIFICATION. In the event of any offering registered pursuant
to this Agreement:
(a) INDEMNIFICATION BY THE COMPANY: The Company will indemnify each
Holder and each person controlling a Holder, against all claims, losses, damages
and liabilities (and actions in respect thereof), including any of the foregoing
(i) incurred in settlement of any litigation, commenced or threatened, (ii)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, final prospectus, or
any amendment or supplement thereto, (iii) incident to any offering registered
pursuant to this Agreement, or (iv) based on (x) any omission (or alleged
omission) to state
-3-
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or (y) any violation by the Company of any rule or regulation
promulgated under the Securities Act or state securities laws applicable to the
Company in connection with any such registration. Subject to Section 3(c), the
Company will reimburse each Holder, and each person controlling a Holder, for
any legal and other out-of-pocket expenses reasonably incurred in connection
with investigating, preparing or defending any claim, loss, damage, liability or
action described in the previous sentence, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement or omission, or
alleged untrue statement or omission, made in reliance upon and in conformity
with written information furnished to the Company by such Holder or controlling
person and stated to be specifically for use therein.
(b) INDEMNIFICATION BY HOLDERS: Each Holder will indemnify the
Company, each of its directors and officers and its legal counsel and
independent accountants, each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act, and
each other Holder and each person controlling such other Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) (i)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement, final prospectus,
or any amendment or supplement thereto, (ii) incident to any offering registered
pursuant to this Agreement, or (iii) based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each Holder will reimburse the
Company, such other Holders, such directors, officers, legal counsel,
independent accountants, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any claim, loss, damage, liability or action described in the
previous sentence, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in such registration statement, final prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically for use
therein; PROVIDED, HOWEVER, that the obligations of each Holder hereunder shall
be several and not joint and shall be limited to an amount equal to the
respective gross proceeds (before expenses and commissions) from the sale of
Registrable Securities by such Holder as contemplated herein.
(c) DEFENDING CLAIMS: Each party entitled to indemnification under
this Section 3 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party receives written notice of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent, but only to
-4-
the extent, that the Indemnifying Party's ability to defend against such claim
or litigation is impaired as a result of such failure to give notice.
Notwithstanding the foregoing sentence, the Indemnified Party may retain its own
counsel to conduct the defense of any such claim or litigation, and shall be
entitled to be reimbursed by the Indemnifying Party for expenses incurred by the
Indemnified Party in defense of such claim or litigation, in the event that the
Indemnifying Party does not assume the defense of such claim or litigation
within sixty days after the Indemnifying Party receives notice thereof from the
Indemnified Party. Further, an Indemnifying Party shall be liable for amounts
paid in settlement of any such claim or litigation only if the Indemnifying
Party consents in writing to such settlement (which consent shall not be
unreasonably withheld). No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party to release from all liability with respect to such claim or
litigation.
(d) CONTRIBUTION: If the indemnification provided for in this Section
3 from the Indemnifying Party is unavailable to an Indemnified Party hereunder
in respect of any claim, loss, damage or liability referred to herein, then the
Indemnifying Party, to the extent such indemnification is unavailable, in lieu
of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such claims, losses, damages or
liabilities in such proportion as is appropriate to reflect the relative benefit
to or fault of the Indemnifying Party and Indemnified Parties in connection with
the actions that resulted in such claims, losses, damages and liabilities. The
relative benefit of such Indemnifying Party and Indemnified Parties shall be
determined by reference to, among other things, the gross proceeds received by
each such party from the sale of Registrable Securities in the manner
contemplated hereby. The relative fault of such Indemnifying Party and
Indemnified Parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made 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 action. The amount paid
or payable by a party as a result of the claims, losses, damages or liabilities
referred to above shall be deemed to include any legal fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this paragraph were determined by PRO RATA allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to above in this paragraph. No party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any party.
(e) The obligations of the Company and each Holder under this Section
3 shall survive the completion of any offering of stock in a registration
statement under this Agreement.
4. ASSIGNMENT OF REGISTRATION RIGHTS. The rights of a Holder pursuant
to this Agreement may be assigned by a Holder to a transferee of Registrable
Securities only if: (a) the Company is, within a reasonable time after such
transfer, furnished with written notice of the
-5-
name and address of such transferee and a copy of a duly executed written
instrument in form reasonably satisfactory to the Company pursuant to which such
transferee (i) assumes all of the obligations and liabilities of its transferor
hereunder, (ii) agrees itself to be bound hereby and (iii) provides the Company
with such reasonable information as the Company may request to permit the
transferee to sell such Registrable Securities pursuant to the registration
statement filed in accordance with Section 2 hereof, and (b) immediately
following such transfer, the disposition of such Registrable Securities by the
transferee is restricted under the Securities Act.
5. AMENDMENT OF REGISTRATION RIGHTS. The Holders of a majority of the
Registrable Securities then outstanding may, with the consent of the Company,
amend the registration rights granted hereunder.
6. TERMINATION. The registration rights set forth in this Agreement
shall terminate with respect to a Holder (and the shares held by such Holder
shall cease to constitute Registrable Securities) upon the earlier of (i) such
time as all of the Registrable Securities then held by such Holder can be sold
by such Holder in a three-month period in accordance with Rule 144 under the
Securities Act and (ii) one year following the date hereof.
7. OBLIGATIONS OF HOLDERS. By exercising any rights hereunder, each
Holder shall be deemed to assume all obligations of a Holder hereunder as though
such Holder were a signatory hereto. The Company may require Holders to execute
an instrument whereby such Holders expressly assume all obligations of Holders
hereunder as a condition precedent to any obligations of the Company hereunder.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which together shall be considered one and the same
document.
9. ENTIRE AGREEMENT. This Agreement, together with the Warrant,
contains the entire understanding and agreement of the parties, and may not be
modified or terminated except by a written agreement signed by both parties.
10. GOVERNING LAW. This Agreement and the validity and performance of
the terms hereof shall be governed by and construed in accordance with the laws
of the State of California.
11. NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be in writing by facsimile, mail or personal
delivery and shall be effective upon actual receipt of such notice.
12. HEADINGS. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
-6-
IN WITNESS WHEREOF, the Company and Bank have duly executed this
Registration Rights Agreement, as of the date and year first above written.
"COMPANY" "BANK"
COINSTAR, INC. BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx Xxxx
Printed: Xxxx X. Xxxxxxxx Printed: Xxxx Xxxx
Title: Vice President and Chief Title: Vice President
Financial Officer
By: /s/ Xxxx Xxxxxxx
Printed: Xxxx X. Xxxxxxx
Title: Senior Vice President
-7-
