1
EXHIBIT 4.27
FIFTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this
"Amendment") is made as of the 9th day of April, 1997, by and among The Cerplex
Group, Inc., a Delaware corporation (the "Company"), the investors listed on
Schedule A hereto, each of which is herein referred to as an "Investor" and
collectively as the "Investors," the security holders of the Company listed on
Schedule B hereto, each of which is herein referred to as a "Stockholder" and
collectively as the "Stockholders," the banks listed on Schedule C hereto, each
of which is herein referred to as a "Bank Holder" and collectively as the "Bank
Holders," and the parties listed on Schedule D hereto, each of which is herein
referred to as a "Series B Preferred Holder" and collectively as the "Series B
Preferred Holders."
A. The Company, the Investors, the Stockholders, the Bank
Holders, the Series B Preferred Holders and certain other investors and
stockholders are parties to a Registration Rights Agreement dated November 19,
1993 (as in effect prior to the effectiveness of this Amendment, the "Existing
Registration Rights Agreement").
B. Pursuant to a First Amendment to Credit Agreement and Limited
Waiver (the "Bank Amendment and Waiver Agreement") dated as of April 15, 1996
among the Company, Xxxxx Fargo Bank, National Association, as administrative
agent, and the Bank Holders and a Warrant Agreement (the "Bank Warrant
Agreement") dated as of April 15, 1996 among the Company and the Bank Holders,
the Company issued one hundred twenty-five thousand (125,000) warrants (the
"Original Bank Warrants") to purchase Common Stock (as such term is defined in
the Existing Registration Rights Agreement) to the Bank Holders; the number of
such Original Bank Warrants is subject to reduction, as more particularly
provided for in the Bank Warrant Agreement.
C. Pursuant to a Third Amendment to Credit Agreement (the "Bank
Third Amendment") dated as of April 9, 1997 among the Company, Xxxxx Fargo
Bank, National Association, as administrative agent, and the Bank Holders and
the Amended and Restated Warrant Agreement (the "Amended Bank Warrant
Agreement") dated as of April 9, 1997 among the Company and the Bank Holders,
the Company is issuing seven hundred fifty thousand (750,000) warrants (the
"Additional Bank Warrants," and, together with the Original Bank Warrants, the
"Bank Warrants") to purchase Common Stock to the Bank Holders; the number of
such Additional Bank Warrants is subject to reduction, as more particularly
provided for in the Amended Bank Warrant Agreement.
D. The Company has requested that the Existing Registration
Rights Agreement be amended to include the Additional Bank Warrants, as more
particularly provided herein.
2
E. The Company, the Investors, the Stockholders, the Bank Holders
and the Series B Preferred Holders agreed to amend the Existing Registration
Rights Agreement as set forth herein.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
As used in this Amendment, the following terms have the respective
meanings specified below:
"Additional Bank Warrants" -- Recital C.
"Amended Bank Warrant Agreement" -- Recital C.
"Amendment, this" -- the introductory sentence.
"Bank Amendment and Waiver Agreement" -- Recital B.
"Bank Holders" -- the introductory sentence.
"Bank Third Amendment" -- Recital C.
"Bank Warrant Agreement" -- Recital B.
"Bank Warrants" -- Recital C.
"Company" -- the introductory sentence.
"Existing Registration Rights Agreement" -- Recital A.
"Investors" -- the introductory sentence.
"Original Bank Warrants" -- Recital B.
"Stockholders" -- the introductory sentence.
SECTION 2. AMENDMENTS.
2.1 Amendments to Section 1.1 of the Existing Registration Rights
Agreement
2
3
(a) Section 1.1 of the Existing Registration Rights Agreement is
hereby amended by amending and restating the following definitions, in their
entirety, as set forth below:
The term "Bank Holders" means (a) each of the banks
set forth on Schedule C hereto for so long as they hold any Bank
Warrants issued on April 15, 1996 (the "Original Bank Warrants") or on
April 9, 1997 (the "Additional Bank Warrants") or any Common Stock
issued pursuant to the exercise of such Bank Warrants and (b) any
successors thereto or direct or successive transferees thereof; it
being the intention of the parties hereto that any successive holder
of a Bank Warrant, or the Common Stock issued upon the exercise of
such Bank Warrant, which Bank Warrant derived from an Original Bank
Warrant or an Additional Bank Warrant, shall be included in this
definition, provided that any holder of shares of Common Stock issued
upon the exercise of any Original Bank Warrant, any Additional Bank
Warrant or any Bank Warrant that derived from such Original Bank
Warrant or Additional Bank Warrant which shares have been, or derive
from shares that have been, publicly sold pursuant to a registration
statement filed under the Act or pursuant to Rule 144 shall, to the
extent of its holdings of such shares, be excluded from this
definition. Any decisions to be made by the Bank Holders shall be made
upon a vote or a majority in interest of holders of the aforesaid Bank
Warrants and the aforesaid Common Stock on the basis of the number of
shares of Common Stock issuable pursuant to such Bank Warrants and the
number of shares of such Common Stock then held. Rights of
successors, assigns and transferees of Bank Holders are subject to
compliance with the requirements of Section 1.13.
The term "Bank Warrants" means those certain warrants
issued by the Company to each of the banks set forth on Schedule C
hereto on April 15, 1996 pursuant to that certain Warrant Agreement
dated as of April 15, 1996 and those certain warrants issued by the
Company to each of the banks set forth on Schedule C hereto on April
9, 1997 pursuant to that certain Amended and Restated Warrant
Agreement dated as of April 9, 1997 and all warrants exchanged
therefor or otherwise subsequently issued in respect thereof under
said Amended and Restated Warrant Agreement.
2.2 Addition of Schedule C to Existing Registration Rights Agreement
Schedule C to the Existing Registration Rights Agreement is hereby
deleted and Schedule C hereto replaced therefor.
SECTION 3. MISCELLANEOUS.
3.1 Additional Bank Holder to Become Party
Citibank, N.A. by executing this Amendment shall become a party to,
and shall be obligated and bound by the provisions of, the Existing
Registration Rights Agreement, as
3
4
amended by this Amendment. For purposes of the avoidance of doubt, such Bank
Holder acknowledges that
(a) the Bank Warrants are separate and distinct from the
"Warrants" (as such term is defined in the Existing Registration
Rights Agreement) and the 0000 Xxxxxxxx; and
(b) the Bank Holders are not "Investors" (as such term is
defined in the Existing Registration Rights Agreement) and are not
entitled to any of the rights of the Investors under the Existing
Registration Rights Agreement, as amended hereby, and are not "Warrant
Group Holders" (as such term is defined in the Existing Registration
Rights Agreement) and are not entitled to any of the rights of Warrant
Group Holders under the existing Registration Rights Agreement, as
amended hereby.
3.2 Governing Law
This Amendment shall be governed by and construed under the laws of
the State of New York as applied to agreements among New York residents entered
into and to be performed entirely within New York.
3.3 Duplicate Originals
Two or more duplicate originals of this Amendment may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Amendment may be executed in one
or more counterparts and shall be effective when at least one counterpart shall
have been executed by each party hereto, and each set of counterparts which,
collectively, show execution by each party hereto shall constitute one
duplicate original.
3.4 Effect of this Amendment
Except as specifically provided in this Amendment, no terms or
provisions of the Existing Registration Rights Agreement have been modified or
changed by this Amendment and the terms and provisions of the Existing
Registration Rights Agreement, as amended hereby, shall continue in full force
and effect. This Amendment and the amendments contained herein shall have and
be in effect on and after the date hereof upon the execution and delivery
hereof by (i) each of the Investors, (ii) sixty-seven percent in interest of
the Stockholders, (iii) each of the Bank Holders, (iv) sixty-seven percent in
interest of the Series B Preferred Holders and (v) the Company.
3.5 Section Headings
The titles of the sections hereof appear as a matter of convenience
only, do not constitute a part of this Amendment and shall not affect the
construction hereof.
4
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on their behalf by a duly authorized officer or agent thereof, as
the case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By /s/
-------------------------------------------
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/
-------------------------------------------
Name:
Title:
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By /s/
-------------------------------------------
Name:
Title:
NORTH ATLANTIC SMALLER COMPANIES INVESTMENT
TRUST PLC
By /s/
-------------------------------------------
Name:
Title:
[Signature page to the FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among
THE CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and
Series B Preferred Holders listed therein.]
5
6
Each of the undersigned Bank Holders agrees to be bound
by the terms and conditions of the Existing Registration
Rights Agreement, as amended by this Fifth Amendment
to Registration Rights Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/
---------------------------------------
Name:
Title:
BHF - BANK AKTIENGESELLSCHAFT
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/
---------------------------------------
Name:
Title:
[Signature page to FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among THE
CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and Series B
Preferred Holders listed therein.]
6
7
Each of the undersigned Stockholders agrees to be bound
by the terms and conditions of the Existing Registration
Rights Agreement, as amended by this Fifth Amendment
to Registration Rights Agreement
/s/
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
/s/
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
/s/
--------------------------------------
Name: Xxxxx Xxxxx
Address: Regis Corporation
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
/s/
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
[Signature page to FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among THE
CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and Series B
Preferred Holders listed therein.]
7
8
Each of the undersigned Investors agrees to be bound
by the terms and conditions of the Existing Registration
Rights Agreement, as amended by this Fifth Amendment
to Registration Rights Agreement
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation, Managing General Partner
By: /s/
--------------------------------------
Xxxxxx Xxxxx, Attorney-in-Fact
DLJ CAPITAL CORPORATION
By: /s/
--------------------------------------
Xxxxxx Xxxxx, Attorney-in-Fact
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co., General Partner
By: /s/
--------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
By: /s/
--------------------------------------
Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
[Signature page to FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among THE
CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and Series B
Preferred Holders listed therein.]
7
9
Each of the undersigned Series B Preferred Holders agrees to be bound
by the terms and conditions of the Existing Registration
Rights Agreement, as amended by this Fifth Amendment
to Registration Rights Agreement
SCORPION OFFSHORE INVESTMENT FUND
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC,
as Investment Advisor to Scorpion Offshore Investment Fund
THE & TRUST
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC, as
Investment Advisor to The & Trust
CHESTNUT PACIFIC LTD. PARTNERS
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC, as
Investment Advisor to Chestnut Pacific Ltd. Partners
STANDARD GLOBAL EQUITY PARTNERS L.P.
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC, as
General Partner of Standard Global Equity Partners L.P.
[Signature page to FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among THE
CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and Series B
Preferred Holders listed therein.]
8
10
STANDARD PACIFIC CAPITAL OFFSHORE FUND LTD.
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC, as
Investment Advisor to Standard Pacific Capital Offshore Fund
Ltd.
COMMON FUND EQUITY FUND
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Chief Financial Officer, Standard Pacific Capital LLC, as
Investment Advisor to Common Fund Equity Fund
XXXXXXX PARTNERS, L.P.
By: /s/
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
[Signature page to FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT among THE
CERPLEX GROUP, INC. and the Bank Holders, Investors, Stockholders and Series B
Preferred Holders listed therein.]
10
11
SCHEDULE A
Schedule of Investors
Warrant Investors
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx. Xxxxxxxxx 00000
Xxxx Xxxxxxx Mutual Life Insurance Company
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
North Atlantic Smaller Companies Trust PLC
c/o 1.0. Hambro & Co., Ltd. 00 Xxxxx Xxxx'x Xxxx
Xxxxxx, Xxxxxxx XXXX0XX
Independent Equity Group
Sprout Growth II, L,P.
DLJ Capital Corp.
Xxxxxx Xxxxx
Bessemer Venture Partners II X.X.
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
C. Xxxxxxxx Xxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Heragan
Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxx, Xx.
Xxx & Xxxxxx Xxxxxxxxx, JTWROS
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxx X. XxXxxxx, Xx.
Xxxxxxx X. XxXxxxx
Schedule A-1
12
Xxxxx X. Xxxxxx
Xxxxxx X. XxXxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxx K, Xxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx, III
Xxxxx X. Xxxx & Xxxxxx X. Xxxx, JTWROS
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxx XxXxxxxxxx
Xxxxxxx Xxxxx Xxxxxx & Xxxxx Xxxx Xxxxxx,
Trustees Under The Moelis Family Trust
Xxxxxx Xxxxx, III
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Elan Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
Xxx X. Xxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxx
R. Xxxxx Xxxxxxxxx
Xxxxxx Xxx
Xxxx X. Xxxxxxx
Schedule A-2
13
SCHEDULE B
Schedule of Stockholders
Xxxxxxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxx
Xxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxx Xxxx
Xxxxxxxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxx
Xxxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxxxx X. Xxxxxxxxxx
Schedule B-1
14
SCHEDULE C
Schedule of Bank Holders
Xxxxx Fargo Bank, National Association
BHF - Bank Aktiengesellschaft
Citibank, N.A.
Schedule C-1
15
SCHEDULE D
Schedule of Series B Preferred Holders
Sprout Growth II, L.P.
DLJ Capital Corporation
Scorpion Offshore Investment Fund
The & Trust
Chestnut Pacific Ltd. Partners
Standard Global Equity Partners L.P.
Standard Pacific Capital Offshore Fund Ltd.
Common Fund Equity Fund
Xxxxxxx and Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxx
Peak Investment Limited Partnership
Pleiades Investment Partners
Xxxxxxx Partners, L.P.
Schedule D-1
