EXHIBIT 10(d)
REGISTRATION RIGHTS AGREEMENT (WYLE)
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
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into as of August 8, 1996 by and between Wyle Electronics, a California
corporation (the "Company") and Xxxxxxxx Industries, a California corporation
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("Xxxxxxxx").
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WHEREAS, the Company and Xxxxxxxx have entered into that certain Limited
Liability Company Agreement of Accord Contract Services LLC of even date
herewith (the "LLC Agreement") establishing a joint venture between the Company
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and Xxxxxxxx;
WHEREAS, the Company has entered into a Warrant Agreement of even date
herewith (the "Warrant Agreement") pursuant to which it has granted to Xxxxxxxx
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certain warrants (the "Warrants") to purchase shares of the Company's Common
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Stock, without par value, (the "Common Stock") upon the occurrence of certain
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events;
WHEREAS, the Company has agreed to provide the registration rights set
forth in this Agreement in connection with the issuance of the Warrants;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 DEFINITIONS. The following capitalized terms shall have the
meanings ascribed to them below:
"Affiliate," as applied to any specified Person, shall mean any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person and, in the case of a Person
who is an individual, shall include (i) members of such specified Person's
immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K
under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of
which are such specified Person or members of such Person's immediate family as
determined in accordance with the foregoing clause (i). For the purposes of
this definition, "control", when used with respect to any Person, means the
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power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Business Day" means any day that is not a Saturday, Sunday or a day on
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which banking institutions in New York, New York or Los Angeles, California are
not required to be open.
"Common Stock" means the Common Stock, without par value, of the Company.
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"Deferral Period" is defined in Section 2.1.
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"Demand Notice" is defined in Section 2.1.
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"Demand Registration" is defined in Section 2.1.
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"Demanding Holder" means any Holder initiating a registration request in
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compliance with Section 2.1(a); provided that any action required or permitted
to be taken under this Agreement by any Demanding Holders shall be taken by
action of the holders of a majority of the Registrable Securities held by such
Demanding Holders.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated thereunder.
"Holder" or "Holders" means Xxxxxxxx and any other holder or holders of
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Registrable Securities.
"Person" means an individual, partnership, corporation, limited liability
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company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Piggyback Registration" is defined in Section 2.2.
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"Piggyback Holder" is defined in Section 2.2.
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"Prospectus" means the prospectus included in a Registration Statement, as
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amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"Public Distribution" shall mean any bona fide underwritten public
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distribution of Stock pursuant to an effective registration statement under the
Securities Act or any other applicable law, or any bona fide public sale in an
open market transaction under Rule 144 of the Securities Act (or any successor
rule) if such sale is in compliance with the requirements of paragraphs (c),
(d), (e), (f) and (g) of such Rule (notwithstanding the provisions of paragraph
(k) of such Rule).
"Public Offering" shall mean any bona fide underwritten public distribution
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of Stock pursuant to an effective registration statement under the Securities
Act or any other applicable law.
"Registrable Securities" means each share of Stock issued or issuable upon
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the exercise of the Warrants, until (i) it has been effectively registered under
the Securities Act and disposed of by a Holder pursuant to an effective
registration statement, or (ii) it is sold by such Holder pursuant to Rule 144
(or any similar provisions then in force) under the Securities Act.
"Registration Statement" means any registration statement of the Company
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relating to a Demand Registration pursuant to Section 2.1 or a Piggyback
Registration
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pursuant to Section 2.2, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who sells or proposes to sell Registrable
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Securities pursuant to a Registration Statement under the Securities Act.
"Stock" means the following securities: (i) the Common Stock or (ii) any
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security or other instrument (a) received as a dividend on, or other payment
made to the holders of, the Common Stock (or any other security or instrument
referred to in this definition) or (b) issued in connection with a split of the
Common Stock (or any other security or instrument referred to in this
definition) or as a result of any exchange or reclassification of the Common
Stock (or any other security or instrument referred to in this definition),
reorganization, consolidation, merger or recapitalization.
"Underwritten Registration" or "Underwritten Offering" means a registration
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in which Stock of the Company is sold to an underwriter for re-offering to the
public.
ARTICLE II
REGISTRATION RIGHTS
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SECTION 2.1 DEMAND REGISTRATIONS.
(a) Request for Registration. At any time and from time to time on or
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after the commencement of the Exercise Period (as defined in the Warrant
Agreement), the Holder or Holders of a majority of the Registrable Securities
then outstanding may make a written request of the Company for registration with
the SEC, under and in accordance with the provisions of the Securities Act, of
all or part (but not less than 20% of Registrable Securities then outstanding)
of their Registrable Securities (a "Demand Registration") by giving written
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notice to the Company of such demand (a "Demand Notice"), provided that (i) the
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Company shall be required to effect only one Demand Registration during any six-
month period and (ii) the Holders will not be entitled to request more than two
such Demand Registrations. Each such Demand Notice will specify the number of
Registrable Securities proposed to be sold pursuant to such Demand Registration
and will also specify the intended method of disposition thereof. The Holders
may request that the Company effect a "shelf registration" that is to remain
continuously effective for a period not to exceed three years from the date on
which the Warrants have been fully exercised.
Promptly after receipt of any Demand Notice, but in no event later than 60
days after receipt of such Demand Notice, the Company shall file a Registration
Statement with the SEC with respect to the Registrable Securities included in
the Demand Notice and shall use its best efforts to have such Registration
Statement declared effective as promptly as
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practicable; provided, however, that the Company may postpone the filing of such
Registration Statement for a period of up to 90 days (the "Deferral Period") if
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the Board of Directors reasonably determines that (i) such a filing would
adversely affect any proposed financing, acquisition, divestiture or other
material transaction by the Company or (ii) such a filing would otherwise
represent an undue hardship for the Company. The Company shall not be entitled
to request more than one such deferral with respect to any group of Holders
requesting a Demand Registration within any 365-day period. If the Company does
elect to defer any such Demand Registration, the Holders requesting such Demand
Registration may, at their election by written notice to the Company, (i)
confirm their request to proceed with such Demand Registration upon the
expiration of the Deferral Period or (ii) withdraw their request for such Demand
Registration in which case no such request for a Demand Registration shall be
deemed to have occurred for purposes of this Agreement.
The Company shall give written notice of any Demand Notice by any Holder,
which request complies with this Section 2.1(a), within 5 days after the receipt
thereof, to each Holder who did not initially join in such request. Within 10
days after receipt of such notice, any such Holder may request in writing that
its Registrable Securities be included in such registration, and the Company
shall include in the Demand Registration the Registrable Securities of each such
Holder requested to be so included, subject to the provisions of Section 2.1(e).
Each such request shall specify the number of shares of Registrable Securities
proposed to be sold and the intended method of disposition thereof.
(b) Effective Registration. Except as provided in subsection (c) below, a
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registration will not be deemed to have been effected as a Demand Registration
unless it has been declared effective by the SEC; provided that if, after it has
become effective, the offering of Registrable Securities pursuant to such
registration is or becomes the subject of any stop order, injunction or other
order or requirement of the SEC or any other governmental or administrative
agency, or if any court prevents or otherwise limits the sale of Registrable
Securities pursuant to the registration (for any reason other than the acts or
omissions of the Holders), such registration will be deemed not to have been
effected. If (i) a registration requested pursuant to this Section 2.1 is
deemed not to have been effected in accordance with the provisions of the
preceding sentence or (ii) the registration requested pursuant to this Section
2.1 does not remain continuously effective for a period of at least 120 days
beyond the effective date thereof or until the consummation of the distribution
by the Holders of the Registrable Securities included in such registration
statement (the "Demand Registration Statement"), then such Demand Registration
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Statement shall not count as a Demand Registration that may be requested by the
Demanding Holder(s) in question and the Company shall continue to be obligated
to effect a registration pursuant to this Section 2.1.
(c) Withdrawal. The Demanding Holders may withdraw all or any part of the
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Registrable Securities from a Demand Registration at any time (whether before or
after the filing or effective date of the Demand Registration Statement), and if
all such Registrable Securities are withdrawn, to withdraw the demand related
thereto. If at any time a registration statement is filed pursuant to a Demand
Registration, and subsequently a sufficient number of Registrable Securities are
withdrawn from the Demand Registration so that such Demand Registration
Statement does not cover at least the required amounts specified by Section
2.1(a), and an additional number of Registrable Securities is not so included,
the Company may (or shall, if requested by the Demanding Holders) withdraw such
Demand Registration Statement; provided that such withdrawn registration
statement will count as a
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Demand Registration unless the Demanding Holders elect to bear the expenses
associated with such withdrawn registration statement. If the Demanding Holders
elect to bear such expenses, such expenses shall be borne by the Demanding
Holder(s) whose withdrawal of Registrable Securities resulted in such Demand
Registration Statement not covering the specified required amounts.
(d) Selection of Underwriter. If the Demanding Holders so elect, the
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offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of an Underwritten Offering. The Demanding Holders shall select one or
more nationally recognized firms of investment bankers to act as the managing
Underwriter or Underwriters in connection with such offering and shall select
any additional investment bankers and managers to be used in connection with
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company. The Company shall (together with all
Holders of Registrable Securities proposing to distribute such Registrable
Securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting in the manner set forth above.
(e) Priority on Demand Registrations. If, in any Demand Registration
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involving an Underwritten Offering the managing underwriter or underwriters
thereof advise the Demanding Holders or the Company in writing that in its or
their reasonable opinion the number of Registrable Securities proposed to be
sold in such Demand Registration exceeds the number that can be sold in such
offering or will adversely affect the success of such offering (including,
without limitation, an impact on the selling price or the number of Registrable
Securities that any participant may sell), the Company shall include in such
registration only the number of Registrable Securities, if any, which in the
opinion of such underwriter or underwriters can be sold without having an
adverse effect on the success of the offering and in accordance with the
following priority: (i) first, Registrable Securities held by Demanding Holders
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in the group initially requesting such registration, allocated pro rata among
such group (based upon the number of Registrable Securities requested to be
included in such Demand Registration) and (ii) second, pro rata (based upon the
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number of Registrable Securities requested to be included in such registration
by such Holders) among the other Holders of Registrable Securities who have
requested to include Registrable Securities in such registration. If all
Registrable Securities requested to be sold in the Underwritten Offering are
included therein, the Company may include other shares of Stock in such offering
in accordance with the following priority, but not to exceed the number
recommended by the managing underwriter or underwriters: (x) first, pro rata
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among any other shareholders of the Company having piggyback or other similar
registration rights and (y) second, shares of Stock proposed to be sold by or
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for the account of the Company.
SECTION 2.2 PIGGYBACK REGISTRATIONS.
(a) Right to Participate in Registration. If, at any time following the
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commencement of the Exercise Period (as defined in the Warrant Agreement), the
Company proposes to file a registration statement under the Securities Act with
respect to an offering by the Company for its own account or for the account of
any holders of any class of common equity securities (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the SEC) or (ii) a registration statement filed in connection with a
Demand Registration or (iii) a registration statement filed in connection with
an offering of securities solely to the Company's existing securityholders),
then the Company shall give
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written notice of such proposed filing to the Holders as soon as practicable
(but in no event less than 20 days before the anticipated filing date), and such
notice shall offer such Holder the opportunity to register such number of shares
of Registrable Securities as each such Holder may request, which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of distribution thereof (or, if the offering is a proposed
Underwritten Offering, that such Holder elects to have the number of Registrable
Securities so specified included in such Underwritten Offering) (a "Piggyback
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Registration").
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The Company shall use its best efforts to cause the managing Underwriter or
Underwriters of a proposed Underwritten Offering to permit the Registrable
Securities requested by the Holders thereof to be included in a Piggyback
Registration (the "Piggyback Holders") to be included on the same terms and
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conditions as any similar securities of the Company or any other securityholder
included therein and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method of distribution thereof.
No registration effected under this Section 2.2 and no failure to effect a
registration under this Section 2.2(a), shall relieve the Company of its
obligations pursuant to Section 2.1, and no failure to effect a registration
under this Section 2.2(a) and complete the sale of shares in connection
therewith shall relieve the Company of any other obligation under this Agreement
(including, without limitation, the Company's obligations under Sections 3.2 and
4.1).
(b) Priority on Piggyback Registrations. Unless the registration statement
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is being filed pursuant to a Demand Registration (in which case the priority of
piggyback rights shall be as provided in Section 2.1(e) above), if the managing
underwriter or underwriters advise the Company in writing that in its or their
reasonable opinion the number of equity securities of the Company proposed to be
sold in such registration (including Registrable Securities to be included
pursuant to subsection (a) above) will adversely affect the success of such
offering (including, without limitation, an impact on the selling price or the
number of equity securities of the Company that any participant may sell), the
Company shall include in such registration the number of equity securities of
the Company, if any, which in the opinion of such underwriter or underwriters
can be sold without having an adverse effect on the offering and in accordance
with the following priority: (i) first, the securities the Company proposes to
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sell for its own account, (ii) second, pro rata based on the number of
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Registrable Securities that each Holder or other Person having similar rights
shall have requested to be included therein.
(c) Withdrawal. The Piggyback Holders may withdraw all or any part of the
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Registrable Securities from a Piggyback Registration at any time (before but not
after the effective date of such registration statement), by delivering written
notice of such withdrawal request to the Company, unless such Piggyback
Registration is underwritten, in which case Registrable Securities may not be
withdrawn after the effective date of the Registration Statement.
(d) Termination of Registration by the Company. If the Company shall
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determine for any reason (x) not to register or (y) to delay a registration
which includes Registrable Securities pursuant to this Section 2.2, the Company
may, at its election, give
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written notice of such determination to the Holders of the Registrable
Securities and, thereupon (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses (as defined below) in connection therewith), without
prejudice, however, to the rights, if any, of any Holder or Holders of
Registrable Securities to request that such registration be effected as a Demand
Registration under Section 2.1, and (ii) in the case of a delay in registering,
shall be permitted to delay registering any Registrable Securities for the same
period as the delay in registering such other shares.
ARTICLE III
REGISTRATION PROCEDURES
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SECTION 3.1 REGISTRATION PROCEDURES.
(a) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement to permit the sale or resale
of Registrable Securities, the Company shall:
(1) prepare and file with the SEC a registration statement with
respect to such Registrable Securities within the time periods specified
herein, make all required filings with the NASD and use its best efforts to
cause such registration statement to become effective as promptly as
practicable (subject to the Company's right to withdraw the registration
statement under the circumstances described in Sections 2.1(c) or 2.2(d));
(2) promptly prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Sections 2.1 or 2.2, as applicable, or such shorter period as will
terminate when all Registrable Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by a
required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act, and to comply fully with the
applicable provision of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(3) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Sections 2.1 and 2.2, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Registrable
Securities during the period required by this Agreement, the Company shall
file promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use its best efforts to cause such
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amendment to declared effective and such Registration Statement and related
Prospectus to become usable for their intended purposes(s) as soon as
practicable thereafter;
(4) provide (A) the Holders of Registrable Securities
participating in the registration, (B) the underwriters (which term, for
purposes of this Agreement, shall include a Person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act), if
any, of the Registrable Securities to be registered, (C) the sale or
placement agent therefor, if any, (D) counsel for such underwriters or
agent, and (E) counsel for the Holders thereof, as selected by Holders of a
majority of the Registrable Securities covered by such registration
statement, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
SEC, and each amendment or supplement thereto, and for a reasonable period
prior to the filing of such registration statement, and throughout the
period specified in Section 3.4(b) hereof, make available for inspection by
the parties referred to in (A) through (E) above such financial and other
information and books and records of the Company, provide access to
properties of the Company and cause the officers, directors, employees,
counsel and independent certified public accountants of the Company to
respond to such inquiries as shall be reasonably necessary to conduct a
reasonable investigation within the meaning of Section 11 of the Securities
Act;
(5) advise the underwriters, if any, and Selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the SEC for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities commission of
the qualification of the Registrable Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the SEC shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Registrable Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(6) furnish to each Selling Holder named in any Registration
Statement or Prospectus and each of the underwriter(s) in connection with
such sale, if any, such number of copies of any Registration Statement or
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by reference after the initial filing of
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such Registration Statement and all exhibits filed therewith), reasonably
requested by such Person;
(7) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and such
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities, information with respect to
the principal amount of Registrable Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Registrable Securities to be sold in such offering,
and make all required filing of such Prospectus supplement or post-
effective amendment as soon as practicable after the Company is notified of
the matters to be included in such Prospectus supplement or post-effective
amendment;
(8) deliver to each Selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby consents
to the use of the Prospectus and any amendment or supplement thereto by
each of the Selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(9) in connection with any Underwritten Offering pursuant to a
Demand Registration, enter into an underwriting agreement with one or more
underwriters designated in accordance with this Agreement, such agreement
to be of the form, scope and substance as is customary in underwritten
offerings, and take all such other actions as are reasonably requested by
the managing underwriter(s) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection: (i) make
such representations and warranties to the underwriters in form, scope and
substance as are customarily made by issuers to underwriters in
underwritten offerings with respect to the business of the Company; (ii)
obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter(s)) addressed to the managing
underwriter(s) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by the underwriters; (iii) obtain "comfort" letters
and updates thereof from the Company's independent certified public
accountants addressed to the underwriters, such "comfort" letters to be in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; (iv) deliver
such documents and certificates as may be reasonably requested by the
managing underwriter(s) to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing under
such underwriting or similar agreement.
(10) prior to any public offering of Registrable Securities,
cooperate with the Selling Holders, the underwriter(s), if any, and their
respective counsel in
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connection with the registration and qualification of the Registrable
Securities under the securities or Blue Sky laws of such jurisdictions as
the Selling Holders or underwriter(s), if any, may request and do any and
all other acts or things necessary or advisable to enable the disposition
in such jurisdictions or the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, except as is required as a
result of the Registration Statement, in any jurisdiction where it is not
now so subject;
(11) in connection with any sale of Registrable Securities that
will result in such securities no longer being Registrable Securities,
cooperate with the Selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and to register such Registrable Securities in such denominations and such
names as the Selling Holders or the underwriter(s), if any, may request at
least two Business Days prior to such sale of Registrable Securities;
(12) if requested by the Selling Holders, provide a CUSIP number
for all Registrable Securities not later than the effective date of the
Registration Statement covering such Registrable Securities and provide the
Company's transfer agent(s) and registrar(s) for the Registrable Securities
with printed certificates for the Registrable Securities;
(13) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Selling Holders or underwriters, if any,
to consummate the disposition of such Registrable Securities;
(14) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 under the Securities Act (which need
not be audited) covering a period of at least twelve month periods, but not
more than eighteen months, beginning with the first month of the Company's
first quarter commencing after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act; and
(15) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which securities of
the same class issued by the Company are then listed if requested by the
Selling Holders holding a majority of the Registered Securities or the
managing underwriter(s), if any.
(b) Provision by Holders of Certain Information. No Holder of
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Registrable Securities may include any of its Registrable Securities in any
Registration Statement
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pursuant to this Agreement unless and until such Holder furnishes to the Company
in writing, within 20 days after receipt of a request therefor, such information
as the Company may reasonably request specified in item 507 of Regulation S-K
under the Securities Act for use in connection with any Registration Statement
or Prospectus or preliminary Prospectus included therein. Each Holder as to
which any Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 3.2 REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Section 3.2 will be paid by the Company, regardless of
whether any registration statement required hereunder becomes effective,
including, without limitation:
(1) all registration and filing fees;
(2) fees and expenses of compliance with securities or blue sky
laws (including, without limitation, reasonable fees and disbursements of
counsel for the underwriters or selling Holders in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the
managing underwriters or Holders of Registrable Securities being sold may
designate);
(3) printing (including, without limitation, expenses of printing
or engraving certificates for the Registrable Securities in a form eligible
for trading on the New York Stock Exchange or for deposit with the
Depository Trust Company and of printing prospectuses), messenger,
telephone and delivery expenses;
(4) reasonable fees and disbursements of counsel for the Company,
for the underwriters and for the Selling Holders (subject to the provisions
of Section 3.2(c) hereof);
(5) reasonable fees and disbursements of all independent
certified public accountants of the Company (including, without limitation,
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance); and
(6) reasonable fees and disbursements of underwriters (excluding
discounts, commissions or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to the
distribution of the Registrable Securities or legal expenses of any Person
other than the Company, the underwriters or the Selling Holders);
(7) fees and expenses of other Persons retained by the Company;
and
(8) fees and expenses associated with any NASD filing required to
be made in connection with the registration of the Registrable Securities,
including, if applicable, the reasonable fees and expenses of any
"qualified independent
11
underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD;
(all such expenses being herein called "Registration Expenses").
---------------------
(b) The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities to be registered on each national securities exchange (or
other principal trading market) on which similar securities issued by the
Company are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Company.
(c) In connection with each Demand Registration or Piggyback
Registration required hereunder, the Company will reimburse the Holders of
Registrable Securities being registered pursuant to a registration statement
required hereunder for the reasonable fees and disbursements of not more than
one counsel chosen by the holders of a majority in number of such Registrable
Securities.
SECTION 3.3 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (i)
agrees to sell its Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, underwriting agreements, hold-back agreements letters and
other documents customarily required under the terms of such underwriting
arrangements. Notwithstanding the foregoing, (x) no Selling Holder shall be
required to make any representations or warranties except those which relate
solely to such Holder and its intended method of distribution, and (y) the
liability of each such Holder to any underwriter under such underwriting
agreement will be limited to liability arising from misstatements or omissions
regarding such Holder and its intended method of distribution and any such
liability shall not exceed an amount equal to the amount of net proceeds such
Holder derives from such registration; provided, however, that in an offering by
the Company in which any Holder requests to be included in a Piggyback
Registration, the Company shall use its best efforts to arrange the terms of the
offering such that the provisions set forth in clauses (x) and (y) of this
Section 3.3 are true. Nothing in this Section 3.3 shall be construed to create
any additional rights regarding the registration of Registrable Securities in
any Person otherwise than as set forth herein.
SECTION 3.4 HOLD-BACK AGREEMENTS.
(a) Restrictions on Public Distribution by Holder of Registrable
------------------------------------------------------------
Securities. Upon the written request of the managing underwriter or
----------
underwriters of a Public Offering, each Holder of Registrable Securities shall
not effect any Public Distribution of such securities, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act (except as part of such
Public Offering), during the 14-day period prior to, and during the 90-day
period following, the offering date for each Public Offering made pursuant to
such registration statement (as identified by such underwriter or underwriters
or the Company in good faith). The foregoing provisions shall not apply to any
Holder that is prevented by applicable statute or regulation from entering into
any
12
such agreement; provided, however, that any such Holder shall undertake not to
effect any Public Distribution of the class of securities covered by such
registration statement (except as part of such Underwritten Offering) during
such period unless it has provided 60 days' prior written notice of such Public
Distribution to the managing underwriter.
(b) Restrictions on Public Distribution by the Company and Others.
-------------------------------------------------------------
The Company agrees and it shall use its best efforts to cause its Affiliates
(other than Persons who are Holders hereunder) to agree: (1) not to effect any
Public Distribution of any securities being registered in accordance with
Article II hereof, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14-day period prior to, and during
the 90-day period following, the offering date for each Public Offering made
pursuant to a registration statement filed under Article II hereof, if requested
in writing by the managing underwriters (except as part of such Public Offering
or pursuant to registrations in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock options or
other employee benefit plans); and (2) to use its best efforts to cause each
Holder of its privately placed Registrable Securities that are issued by the
Company at any time on or after the date of this Agreement to agree not to
effect any Public Distribution, including a sale pursuant to Rule 144 under the
Securities Act, of any Registrable Securities during the period set forth in
clause (1) above (except as part of such Public Offering, if and to the extent
permitted).
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
--------------------------------
SECTION 4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Selling Holder, each person, if any, who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (hereinafter referred to as a "controlling
-----------
person"), the respective officers, directors, partners, employees,
------
representatives and agents of any Holder or any controlling person (each an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
-------------------
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or 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, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein.
SECTION 4.2 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each
Selling Holder agrees, severally and not jointly, to indemnify and hold harmless
the Company and its directors, officers and any person controlling (within the
meaning of Section 15 of the
13
Securities Act or Section 20 of the Exchange Act) the Company and its respective
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from the Company to
each of the Indemnified Holders, but only with respect to losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to the
Company) directly or indirectly caused by, related to, based upon, arising out
of or in connection with any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or 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, to the extent, but only to the extent, that
such untrue statement or omission is contained in any information relating to
such Holder furnished in writing by such Holder expressly for use in any
Registration Statement or Prospectus. In case any action or proceeding shall be
brought against the Company or its directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of
Registrable Securities, such Holder shall have the rights and duties given the
Company, and the Company or its directors or officers or such controlling person
shall have the rights and duties given to each Holder by the preceding
paragraph. Each Selling Holder also agrees to indemnify and hold harmless each
other Selling Holder or underwriters participating in the distribution on
substantially the same basis as that of the indemnification of the Company
provided in this Section 4.2. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons specifically for inclusion in any Registration Statement or
Prospectus.
SECTION 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled
to indemnification hereunder (an "Indemnified Party") will (i) promptly give
-----------------
notice of any claim, action or proceeding (including any governmental or
regulatory investigation or proceeding) or the commencement of any such action
or proceeding to the Person against whom such indemnity may be sought (an
"Indemnifying Party"); provided that the failure to give such notice shall not
-------------------
relieve the Indemnifying Party of its obligations pursuant to this Agreement
except to the extent that such Indemnifying Party has been prejudiced in any
material respect by such failure, and (ii) permit the Indemnifying Party to
assume the defense of such claim with counsel reasonably satisfactory to such
Indemnified Party; provided that the Indemnified Party shall have the right to
employ separate counsel and participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless (a) the Indemnifying Party has agreed to pay for such fees and
expenses, or (b) the Indemnifying Party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such Indemnified
Party or (c) in the reasonable judgment of such Indemnified Party, based upon
advice of its counsel, a conflict of interest may exist between such Indemnified
Party and the Indemnifying Party with respect to such claims. If such defense is
not assumed by the Indemnifying Party, the Indemnifying Party will not be
subject to any liability for any settlement of any such claim effected without
the Indemnifying Party's prior written consent, which consent shall not be
unreasonably withheld. The
14
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying Party agrees to
indemnify and hold harmless any indemnified Party from and against any loss,
claim damage, liability or expense by reason of any settlement of any such claim
or action. No indemnifying Party shall, without the prior written consent of
each Indemnified Party, settle or compromise or consent to the entry of judgment
in or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not any indemnified party is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each indemnified party from all liability arising out
of such action, claim, litigation or proceeding. An Indemnifying Party who is
not entitled to, or elects not to, assume the defense of the claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such Indemnifying Party with respect to such claim, unless in the
reasonable judgement of any indemnified party a conflict of interest may exist
between such indemnified party and any other such indemnified parties with
respect to such claim, in which event the Indemnifying Party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
SECTION 4.4 CONTRIBUTION. If the indemnification provided for in this
Article IV is unavailable to an Indemnified Party (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall have a
joint and severable obligation to 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, on the one hand, and of the Indemnified Party, on the
other, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party, on the
one hand, and of the Indemnified Party, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. 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 the second paragraph of Section 4.1, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, none of the Indemnified
Holders shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds received by such Holder with respect to
the
15
Registrable Securities exceeds the greater of (A) the amount paid by such Holder
for its Registrable Securities and (B) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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. The Holders' obligation to contribute pursuant to
this Section 4.4 are several in proportion to the respective number of
Registrable Securities held by each of the Holders hereunder and not joint.
For purposes of this Article IV, each controlling person of a Holder
shall have the same rights to contribution as such Holder, and each officer,
director, and person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Company, subject in each case to the
limitations set forth in the immediately preceding paragraph. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Article
IV, notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from who contribution may be sought from any obligation it or they may
have under this Article IV or otherwise except to the extent that it has been
prejudiced in any material respect by such failure. No party shall be liable
for contribution with respect to any action or claim settled without its written
consent; provided, however, that such written consent was not unreasonably
withheld.
SECTION 4.5 ADDITIONAL INDEMNITY. The indemnity, contribution and expense
reimbursement obligations under this Article IV shall be in addition to any
liability each Indemnifying Party may otherwise have; provided, however, that
any payment made by the Company which results in an Indemnified Party receiving
from any source(s) indemnification, contribution or reimbursement for an amount
in excess of the actual loss, liability or expense incurred by such Indemnified
Party, shall be refunded to the Company by the Indemnified Party receiving such
excess payment.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 RULE 144. The Company agrees it will file in a timely manner
all reports required to be filed by it pursuant to the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder and
will take such further action as any Holder of Registrable Securities may
reasonably request in order that such Holder may affect sales of Registrable
Securities without registration within the limitations of the exemptions
provided by Rule 144, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC. At any reasonable time
and upon the request of a Holder of Registrable Securities, the Company will
furnish such Holder with such information as may be necessary to enable the
Holder to effect sales of Registrable Securities pursuant to Rule 144 under the
Securities Act and will deliver to such Holder a written statement as to whether
it has complied with such information and requirements.
16
SECTION 5.2 SPECIFIC PERFORMANCE. Each Holder, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of liquidated or other damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
SECTION 5.3 NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
SECTION 5.4 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given unless the Company has obtained the written consent of
Holders of a majority of the outstanding shares of Registrable Securities.
SECTION 5.5 NOTICES. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party to the
others shall be made in writing, by hand-delivery, telegraph, telex, telecopier,
registered first-class mail or air courier guaranteeing overnight deliver as
follows:
if to the Company, to:
Wyle Electronics
00000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
if to Xxxxxxxx, to:
Xxxxxxxx Industries
0000 Xxxxxxx Xxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
if to any other Holder:
to the address specified by any such Holder from time-to-time;
or to such other place and with such other copies as any party hereto may
designate as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business
17
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied: and on the
next Business Day if timely delivered to an air courier guaranteeing overnight
delivery.
SECTION 5.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities, provided that the
Company may not assign its rights or obligations under this Agreement to any
other person or entity without the written consent of a majority of the
outstanding shares of Registrable Securities.
SECTION 5.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 5.8 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit o otherwise affect the meaning
hereof.
SECTION 5.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the choice of law provisions thereof.
SECTION 5.10 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 5.11 ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 5.12 PRONOUNS. Whenever the context may require, any
pronouns used herein shall be deemed also to include the corresponding neuter,
masculine or feminine forms.
SECTION 5.13 ATTORNEY'S FEES. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorney's fees in addition to its costs and expenses and
any other available remedy.
SECTION 5.14 SECURITIES HELD BY THE COMPANY OR ITS SUBSIDIARIES.
Whenever the consent or approval of Holders of a specified percentage or
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its Subsidiaries shall not
18
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
SECTION 5.15 FURTHER ASSURANCES. Each party shall cooperate and take
such action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
SECTION 5.16 TERMINATION. Unless sooner terminated in accordance
with its terms or as otherwise herein provided, this Agreement shall terminate
upon the earlier to occur of (i) the mutual agreement by the parties hereto,
(ii) with respect to any Holder, such Holder ceasing to own any Registrable
Securities, (iii) the third anniversary after such time as all outstanding
Warrants have been exercised.
SECTION 5.17 REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Holder as follows:
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals referred to herein, to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(b) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, conflict with or
violate any provision of the Articles of Incorporation or Bylaws of the Company
or any material agreement or obligation of the Company.
(signature page follows)
19
IN WITNESS HEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
WYLE ELECTRONICS
By:___________________________________________
Name:
Title:
XXXXXXXX INDUSTRIES
By:___________________________________________
Name:
Title:
S-1
