FORM OF
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of ________________________, 2002 [THE
EFFECTIVE DATE OF THE MERGER OF AROMA ACQUISITION CORP. WITH AND INTO XXX.XXX,
INC.] by and among (i) FTD, Inc., a Delaware corporation formerly known as IOS
Brands Corporation (the "COMPANY"), (ii) Perry Acquisition Partners, L.P., a
Delaware limited partnership, Perry Partners, L.P., a Delaware limited
partnership, Perry Partners International, Inc., a Cayman Islands corporation,
and Perry Principals Holdings, LLC, a Delaware limited liability company
(collectively, the "PERRY ENTITIES"), (iii) Xxxx Capital Fund IV, L.P., a
Delaware limited partnership, Xxxx Capital Fund IV-B, L.P., a Delaware limited
partnership, Information Partners Capital Fund, L.P., a Delaware limited
partnership, BCIP Associates, a Delaware general partnership, and BCIP Trust
Associates, L.P., a Delaware limited partnership (collectively, the "BAIN
ENTITIES"), (iv) Xxxxxxxx Partners II L.P., a Delaware limited partnership,
Fleet Equity Partners VII, L.P., a Delaware limited partnership, and Fleet
Growth Resources III, Inc., a Delaware corporation (collectively, the "FLEET
ENTITIES"), and (v) Xxxxxxxx Street Partners, an Illinois general partnership.
Each of the parties to this Agreement other than the Company is referred to
herein as an "INVESTOR" and collectively, the "INVESTORS". Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in SECTION 9 below.
WHEREAS, pursuant to that certain Stockholders' Agreement dated as of
December 19, 1994, among the Company and the Investors (the "OLD STOCKHOLDERS
AGREEMENT"), the Stockholders had certain registration and other rights;
WHEREAS, the Company has requested that the Investors consent to the
termination of the Old Stockholders Agreement; and
WHEREAS, as a condition to the Investors consent to the termination of
the Old Stockholders Agreement, each Investor is requiring that the Company
enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby agreed and acknowledged, the Company and the
Investors agree as follows
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time on or after the first
anniversary of the date of this Agreement, (i) the holders of at least a
majority of the Perry Registrable Securities and (ii) the holders of at least a
majority of the Other Investor Registrable Securities may, subject to the
limitations set forth in SECTION 1(b) below, each request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-1
or any similar long-form registration ("LONG-FORM REGISTRATIONS"), and (1) the
holders of at least a majority of the Perry Registrable Securities and (2) the
holders of at least a majority of the Other Investor Registrable Securities may
each request registration under the Securities Act of all or any portion of
their Registrable Securities on Form S-2 or S-3 or any similar short-form
registration ("SHORT-FORM REGISTRATIONS") if available.
All registrations requested pursuant to this SECTION 1(a) are referred to herein
as "DEMAND REGISTRATIONS." Each request for a Demand Registration shall specify
the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to the terms of SECTION 1(d) hereof, shall include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice. At the request of the holders of at least a majority of the
Registrable Securities requesting a Demand Registration, the Company shall file
with the Securities and Exchange Commission a registration statement pursuant to
Rule 415 promulgated under the Securities Act (a "SHELF REGISTRATION
STATEMENT").
(b) LONG-FORM REGISTRATIONS. The holders of Perry Registrable
Securities shall be entitled to request two Long-Form Registrations in which the
Company shall pay all Registration Expenses ("COMPANY-PAID LONG-FORM
REGISTRATIONS") and the holders of Other Investors Registrable Securities shall
be entitled to request one Company-paid Long-Form Registration; PROVIDED, in
each case, that the aggregate offering value of the Registrable Securities
requested to be registered in any Company-Paid Long-Form Registration must equal
at least $75 million. The holders of Registrable Securities shall be further
entitled to unlimited Long-Form Registrations in which the holders of
Registrable Securities participating in such registration shall pay their share
of the Registration Expenses as set forth in SECTION 5 hereof. A registration
shall not count as one of the permitted Company-paid Long-Form Registrations
until it has become effective (unless such Long-Form Registration has not become
effective due solely to the fault of the holders requesting such registration),
and neither the LAST or any subsequent Company-paid Long-Form Registration shall
count as one of the permitted Company-paid Long-Form Registrations unless the
holders of Registrable Securities requesting a Company-paid Long-Form
Registration are able to register and sell at least 25% of the Registrable
Securities requested by such holders to be included in such registration;
PROVIDED that in any event the Company shall pay all Registration Expenses in
connection with any registration initiated as a Company-paid Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Company-paid Long-Form
Registrations. All Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations, the holders of Registrable Securities shall be entitled to
request an unlimited number of Short-Form Registrations in which the Company
shall pay all Registration Expenses; PROVIDED that the aggregate offering value
of the Registrable Securities requested to be registered in any Short-Form
Registration must equal at least $75 million. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form and if the managing underwriters (if any) agree to the use of a
Short-Form Registration. So long as the Company remains subject to the reporting
requirements of the Securities Exchange Act, the Company shall use its
reasonable best efforts to make Short-Form Registrations on Form S-3 available
for the sale of Registrable Securities.
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(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of at least a majority of the
Registrable Securities initially requesting such registration; PROVIDED,
HOWEVER, such consent shall not be required for the Company to include (subject
to the limitation in the next sentence) in a Demand Registration securities of
the Company held by Persons entitled to exercise "piggy-back" registration
rights with respect to such securities pursuant to contractual commitments of
the Company. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein in an orderly
manner in such offering within a price range acceptable to the holders of a
majority of the Registrable Securities initially requesting registration,
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) FIRST, the maximum number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold without adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such requesting holder; and (ii) SECOND,
securities other than Registrable Securities requested to be included in such
registration which, in the opinion of such underwriters, can be sold without
adversely affecting the marketability of the offering, pro rata among the
respective holders thereof on the basis of the amount of such securities owned
by each such holder. Any Persons, other than holders of Registrable Securities,
who participate in Demand Registrations which are not at the Company's expense
must pay their share of the Registration Expenses as provided in SECTION 5
hereof.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 365 days after (i) the
effective date of a previous Demand Registration or (ii) the effective date of a
registration of Common Stock (other than a Demand Registration) in which the
holders of Registrable Securities were given piggyback rights pursuant to
SECTION 2 hereof and in which there was no reduction in the number of
Registrable Securities requested to be included. The Company may postpone for up
to 90 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company's board of directors determines in its
reasonable good faith judgment that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; PROVIDED that in such event, the
holders of Registrable Securities initially requesting such Demand Registration
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand
Registrations hereunder and the Company shall pay all Registration Expenses in
connection with such registration.
(f) SELECTION OF UNDERWRITERS. If any Demand Registration is an
underwritten offering, the investment banker(s) and manager(s) for the offering
shall be selected by the Company.
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(g) OTHER REGISTRATION RIGHTS. The Company represents and warrants
that it is not a party to, or otherwise subject to, any other agreement granting
registration rights to any other Person, and no Person has any such registration
rights, with respect to any securities of the Company other than the Persons set
forth on the attached OTHER REGISTRATION RIGHTS SCHEDULE. Except as provided in
this Agreement, the Company shall not grant to any Persons (including, without
limitation, the Investors) the right to request the Company to register any
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, without the prior written
consent of the holders of at least a majority of the Registrable Securities;
PROVIDED that the Company may grant rights to other Persons to (i) participate
in Piggyback Registrations so long as such rights are subordinate to the rights
of the holders of Registrable Securities with respect to such Piggyback
Registrations as set forth in SECTIONS 2(c) and 2(d) hereof.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its securities under the Securities Act (other than (i) pursuant to a Demand
Registration or (ii) until the first anniversary of the date of this Agreement,
pursuant to any agreement set forth on the OTHER REGISTRATION RIGHTS SCHEDULE)
and the registration form to be used may be used for the registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company shall give
prompt written notice (in any event within three business days after its receipt
of notice of any exercise of demand registration rights other than under this
Agreement) to all holders of Registrable Securities of its intention to effect
such a registration and, subject to the terms of clause (ii) of the first
parenthetical in this SECTION 2(a) and SECTIONS 2(c) and 2(d) hereof, shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 20 days
after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares owned by each
such holder, and (iii) third, other securities requested to be included in such
registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering
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without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) FIRST, the securities requested to be included
therein by the holders requesting such registration and the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of securities owned by
each such holder, and (iii) SECOND, other securities requested to be included in
such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the investment banker(s) and manager(s) for the offering
shall be selected by the Company.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible into or exchangeable or exercisable for its equity securities under
the Securities Act (except on Form X-0, Xxxx X-0 or any successor form), whether
on its own behalf or at the request of any holder or holders of such securities,
until a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. TRANSFER AND HOLDBACK AGREEMENTS.
(a) Until the first anniversary of the date of this Agreement, each
holder of Registrable Securities shall not sell, transfer or otherwise
distribute any Registrable Securities to any Person other than (i) its
affiliates, (ii) another holder of Registrable Securities or (iii) the Company;
PROVIDED, HOWEVER, that at any time on or after the six month anniversary of the
date of this Agreement, each holder of Registrable Securities shall be entitled
to sell, transfer or distribute any Registrable Securities pursuant to a Public
Sale, and PROVIDED, FURTHER, that each holder of Registrable Securities shall be
entitled to sell, transfer or distribute any Registrable Securities in a
Piggyback Registration in accordance with SECTION 2 hereof.
(b) Until the second anniversary of the date of this Agreement, the
Perry Entities agree not to make any sale, transfer or distribution of any
Registrable Securities to any of their limited partners or other equity or
interest holders which are not then affiliates of one or more of the Perry
Entities; PROVIDED, HOWEVER, that, notwithstanding SECTION 3(a) above, the Perry
Entities may, at any time or from time to time during the period beginning six
months after the date of this Agreement and ending 12 months following the date
of this Agreement, distribute to any such Person or Persons up to 10% of the
Registrable Securities held by the Perry Entities as of the date of this
Agreement, and PROVIDED, FURTHER, that the Perry Entities may, at any time or
from time to time between the first and second anniversaries of the date of this
Agreement, distribute to any such Person or Persons up to 50% of any of the
Registrable Securities held by the Perry Entities as of the first anniversary of
the date of this Agreement.
(c) Until the second anniversary of the date of this Agreement, the
Bain Entities agree not to make any sale, transfer or distribution of any
Registrable Securities to any of their limited partners or other equity or
interest holders which are not then affiliates of one or more of the
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Bain Entities; PROVIDED, HOWEVER, that, notwithstanding SECTION 3(a) above, the
Bain Entities may, at any time or from time to time during the period beginning
six months after the date of this Agreement and ending 12 months following the
date of this Agreement, distribute to any such Person or Persons up to 10% of
the Registrable Securities held by the Bain Entities as of the date of this
Agreement, and PROVIDED, FURTHER, that the Bain Entities may, at any time or
from time to time between the first and second anniversaries of the date of this
Agreement, distribute to any such Person or Persons up to 50% of any of the
Registrable Securities held by the Bain Entities as of the first anniversary of
the date of this Agreement.
(d) Until the second anniversary of the date of this Agreement, the
Fleet Entities agree not to make any sale, transfer or distribution of any
Registrable Securities to any of their limited partners or other equity or
interest holders which are not then affiliates of one or more of the Fleet
Entities; PROVIDED, HOWEVER, that, notwithstanding SECTION 3(a) above, the Fleet
Entities may, at any time or from time to time during the period beginning six
months after the date of this Agreement and ending 12 months following the date
of this Agreement, distribute to any such Person or Persons up to 10% of the
Registrable Securities held by the Fleet Entities as of the date of this
Agreement, and PROVIDED, FURTHER, that the Fleet Entities may, at any time or
from time to time between the first and second anniversaries of the date of this
Agreement, distribute to any such Person or Persons up to 50% of any of the
Registrable Securities held by the Fleet Entities as of the first anniversary of
the date of this Agreement.
(e) As a condition to any sale, transfer or other distribution of
Registrable Securities other than pursuant to a Public Sale, the holder of such
Registrable Securities shall cause the purchaser, transferee or distributee, as
the case may be, to execute and deliver a joinder (in form and substance
reasonably satisfactory to the Company) to the Company agreeing to be bound by
the provisions of this Agreement.
(f) Each holder of Registrable Securities shall not effect any Public
Sale of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the 30 days prior to and
the 90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Registrable
Securities are included (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree.
(g) The Company shall not effect any Public Sale of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the 30 days prior to and the 90-day period beginning
on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-4, Form S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree.
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4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its reasonable best efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof (including the registration of Class
A Common issued upon the conversion of Class B Common held by a holder of
Registrable Securities requesting registration as to which the Company has
received reasonable assurances that only Registrable Securities shall be
distributed to the public), and pursuant thereto the Company shall as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become effective
(PROVIDED that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement; PROVIDED, HOWEVER,
that at any time, upon written notice to the participating holders of
Registrable Securities and for a period not to exceed thirty (30) days
thereafter (the "SUSPENSION PERIOD"), the Company may suspend the use or
effectiveness of any Shelf Registration Statement (and the holders of
Registrable Securities participating in such offering hereby agree not to offer
or sell any Registrable Securities pursuant to such Shelf Registration Statement
during such Suspension Period) if the Company reasonably believes that the
Company may, in the absence of such suspension hereunder, be required under
applicable state or federal securities laws to disclose any corporate
development the disclosure of which could reasonably be expected to have a
material and adverse effect upon the Company, its stockholders, a potentially
significant transaction or event involving the Company, or any negotiations,
discussions or proposals directly relating thereto. No more than one (1)
Suspension Period shall occur in any six (6) month period. In the event that the
Company exercises its rights hereunder, the applicable time period during which
the Shelf Registration Statement is to remain effective shall be extended by a
period of time equal to the duration of the Suspension Period. The Company may
extend any Suspension Period for an additional consecutive thirty (30) days with
the consent of the holders of at least 75% of the Registrable Securities
proposed to be sold by the holders participating in such Shelf Registration. If
so directed by the Company, the holders of Registrable Securities shall use
their commercially reasonable efforts to deliver to the Company (at the
Company's expense) all copies, (other than permanent file copies) then in such
holder's possession of the prospectus relating to such Registrable Securities
current at the time of such holder's receipt of such notice.
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(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (PROVIDED that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its reasonable
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system security" within
the meaning of Rule 11Aa2-1 promulgated under the Securities Exchange Act or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
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(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other pertinent records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(m) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Registrable
Securities being sold reasonably request (PROVIDED that such Registrable
Securities constitute at least 10% of the securities covered by such
registration statement).
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne as provided in this
Agreement, except that the Company shall, 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 or quarterly
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review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
initially requesting such registration and for the reasonable fees and
disbursements of each additional counsel retained by any holder of Registrable
Securities for the purpose of rendering a legal opinion on behalf of such holder
in connection with any underwritten Demand Registration or Piggyback
Registration.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements
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therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder; PROVIDED that the obligation to indemnify shall be individual, not
joint and several, for each holder and shall be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (PROVIDED that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall 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 judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
8. REPORT AND INFORMATION FILING COVENANT. The Company shall file all
reports required to be filed by it under the Securities Act and the Securities
Exchange Act and the rules and regulations adopted by the Securities and
Exchange Commission thereunder and shall take such further action as any holder
or holders of Registrable Securities may reasonably request, all to the extent
required to enable such holders to sell Registrable Securities pursuant to Rule
144 promulgated under the Securities Act (as such rule may be amended from time
to time) or any similar rule or regulation hereafter adopted by the Securities
and Exchange Commission. Upon request, the Company shall deliver to any holder
of Registrable Securities a written statement as to whether it has complied with
such requirements.
11
9. DEFINITIONS.
(a) "CLASS A COMMON" means shares of the Company Class A Common Stock,
par value $.01 per share.
(b) "CLASS B COMMON" means shares of the Company's Class B Common
Stock, par value $.0005 per share.
(c) "COMMON STOCK" means the Class A Common, Class B Common and any
other class of common stock of the Company subsequently authorized by the
Company's charter.
(d) "OTHER INVESTOR REGISTRABLE SECURITIES" means (i) any Class A
Common (other than Perry Registrable Securities) held by any Investor as of the
date hereof or hereinafter acquired by such Investor from the Company or another
Investor, (ii) any Class A Common (other than Perry Registrable Securities)
issued upon the conversion of any Class B Common held by an Investor as of the
date hereof or hereinafter acquired from the Company by an Investor, and (iii)
any Class A Common or other Common Stock issued or issuable with respect to the
securities referred to in clauses (i) and (ii) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Other
Investor Registrable Securities, such securities shall cease to be Other
Investor Registrable Securities when they have been distributed pursuant to a
Public Sale or distributed by any Investor to any of its limited partners or
other equity or interest holders which are not then an affiliate of such
Investor. For purposes of this Agreement, a Person shall be deemed to be a
holder of Other Investor Registrable Securities, and the Other Investor
Registrable Securities shall be deemed to be in existence, whenever such Person
(1) has the right to acquire directly or indirectly (upon conversion or
permitted exercise or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right) Other Investor Registrable
Securities or (2) has actually acquired Other Investor Registrable Securities
(in connection with the exercise of rights described in clause (1) of this
sentence or a transfer of Other Investor Registrable Securities) other than in a
Public Sale, and such Person shall be entitled to exercise the rights of a
holder of Other Investor Registrable Securities hereunder with respect to any
such Other Investor Registrable Securities.
(e) "PERRY REGISTRABLE SECURITIES" means (i) any Class A Common held
by the any of the Perry Entities as of the date hereof or hereinafter acquired
by any of the Perry Entities from the Company, (ii) any Class A Common issued
upon the conversion of any Class B Common held by any of the Perry Entities as
of the date hereof or hereinafter acquired from the Company by any of the Perry
Entities, and (iii) any Class A Common or other Common Stock issued or issuable
with respect to the securities referred to in clauses (i) and (ii) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Perry Registrable Securities, such securities shall cease to be
Perry Registrable Securities when they have been distributed pursuant to a
Public Sale or pursuant to SECTION 3(b) above. For purposes of this Agreement, a
Person shall be deemed to be a holder of Perry Registrable Securities, and the
Perry Registrable Securities shall be deemed to be in existence, whenever such
Person (1) has the right to acquire directly or indirectly (upon conversion or
permitted
12
exercise or otherwise, but disregarding any restrictions or limitations upon the
exercise of such right) Perry Registrable Securities or (2) has actually
acquired Perry Registrable Securities (in connection with the exercise of rights
described in clause (1) of this sentence or a transfer of Perry Registrable
Securities) other than in a Public Sale, and such Person shall be entitled to
exercise the rights of a holder of Perry Registrable Securities hereunder with
respect to any such Perry Registrable Securities.
(f) "PERSON" means any individual, corporation, association, limited
liability company, partnership, trust or estate, an unincorporated organization,
a joint venture, a government or any agency or political subdivision thereof, or
any other entity of whatever nature.
(g) "PUBLIC SALE" means a distribution of securities to the public
pursuant to an offering registered under the Securities Act or sold to the
public in compliance with Rule 144 or Rule 144(k) promulgated under the
Securities Act (or any similar rules then in force).
(h) "REGISTRABLE SECURITIES" means the Perry Registrable Securities
and the Other Investor Registrable Securities.
(i) "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
(j) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
10. MISCELLANEOUS.
(a) OLD STOCKHOLDERS AGREEMENT. The Old Stockholders Agreement is
hereby terminated and is of no further force or effect.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(c) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(d) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any
13
breach of the provisions of this Agreement and that, in addition to any other
rights and remedies existing in its favor, any party shall be entitled to
specific performance and/or other injunctive relief from any court of law or
equity of competent jurisdiction (without posting any bond or other security) in
order to enforce or prevent violation of the provisions of this Agreement.
(e) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of each of (i) the Company and (ii) the holders of at least a
majority of the Registrable Securities. In the event that any amendment or
waiver disproportionately and adversely effects the rights of the holders of
Other Investor Registrable Securities under this Agreement, the prior written
consent of the holders of at least a majority of the Other Investor Registrable
Shares shall be required to effect any such amendment or waiver. In the event
that any amendment or waiver disproportionately and adversely effects the rights
of the holders of Perry Registrable Securities under this Agreement, the prior
written consent of the holders of at least a majority of the Perry Registrable
Shares shall be required to effect any such amendment or waiver. Notwithstanding
anything contained herein to the contrary, the amendment or waiver of any
material provision of this Agreement by the Company (other than (1) any
amendment of SECTION 3(a) except an amendment that would permit Public Sales of
Registrable Securities during the first six months immediately after the date of
this Agreement, and, (2) any amendment of SECTIONS 3(b), 3(c) or 3(d) that does
not affect the restrictions contained therein restricting sales, transfers or
distributions during the first six months immediately after the date of this
Agreement) shall require the approval of a majority of the Company's directors
who are not Perry Nominees (as defined in the Governance Agreement, dated as of
[_________, 2002], among the Company and the stockholders of the Company party
thereto (as amended from time to time pursuant to its terms, the "GOVERNANCE
AGREEMENT")) or Bain Nominees (as defined in the Governance Agreement).
(f) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Notwithstanding the foregoing, no transferee or
subsequent holder of Registrable Securities shall be entitled to the benefit of
(or enforce) any rights hereunder unless and until such transferee or subsequent
holder of Registrable Securities executes and delivers a joinder (in form and
substance reasonably satisfactory to the Company) to the Company agreeing to be
bound by the provisions of this Agreement.
(g) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
14
(i) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(j) GOVERNING LAW. The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights of the Company
and its stockholders. Issues and questions concerning the construction,
validity, interpretation and enforcement of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(k) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each Investor at the address indicated on the
attached SCHEDULE OF INVESTORS and to the Company at the address indicated
below:
FTD, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Fax: 000-000-0000
Attention: Chief Financial Officer
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(l) TERMINATION. With respect to each holder of Registrable
Securities, such holder's rights and obligations hereunder shall terminate upon
the later to occur of (i) the fifth anniversary of the date of this Agreement
and (ii) the date when such holder, together with its affiliates, holds less
than ten percent (10%) of the then outstanding Common Stock.
* * * * *
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FTD, INC. (f/k/a IOS Brands Corporation)
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
PERRY ACQUISITION PARTNERS, L. P.
By: PERRY INVESTORS, L.L.C.,
Its: General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
PERRY PARTNERS, L.P.
By: PERRY CORP.
Its: Managing General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
PERRY PARTNERS INTERNATIONAL, INC.
By: PERRY INVESTORS, L.L.C.,
Its: Investment Manager
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
PERRY PRINCIPALS HOLDINGS, LLC
By:
----------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Managing Member
SIGNATURE PAGE TO REGISTRATION AGREEMENT
XXXX CAPITAL FUND IV, X.X.
XXXX CAPITAL FUND IV-B, L.P.
By: XXXX CAPITAL PARTNERS IV, L.P.
Their: General Partner
By: XXXX CAPITAL INVESTORS, L.L.C.
Its: General Partner
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Managing Director
INFORMATION PARTNERS CAPITAL FUND, L.P.
By: INFORMATION PARTNERS
Its: General Partner
By: XXXX CAPITAL PARTNERS IV, L.P.
Its: General Partner
By: XXXX CAPITAL INVESTORS, L.L.C.
Its: General Partner
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Managing Director
BCIP ASSOCIATES
BCIP TRUST ASSOCIATES, L.P.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Their: Authorized Partner
SIGNATURE PAGE TO REGISTRATION AGREEMENT
XXXXXXXX PARTNERS II, L.P.
By: SILVERADO II, L.P.
Its: General Partner
By: SILVERADO II CORP.
Its: General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Its: President
FLEET EQUITY PARTNERS VII, L.P.
By: SILVERADO V CORP.
Its: General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Its: President
FLEET GROWTH RESOURCES III, INC.
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Its: Attorney in Fact (Granted 8/4/00)
XXXXXXXX STREET PARTNERS
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
SIGNATURE PAGE TO REGISTRATION AGREEMENT
SCHEDULE OF INVESTORS
NOTICE TO PERRY ACQUISITION PARTNERS, L.P., PERRY PARTNERS, L.P., PERRY PARTNERS
INTERNATIONAL, INC. OR PERRY PRINCIPALS HOLDINGS, LLC
c/o Perry Capital Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
NOTICE TO XXXX CAPITAL FUND IV, L.P., XXXX CAPITAL FUND IV-B, L.P., INFORMATION
PARTNERS CAPITAL FUND, L.P., BCIP ASSOCIATES, OR BCIP TRUST ASSOCIATES, L.P.
c/o Bain Capital LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: 000-000-0000
NOTICE TO XXXXXXXX PARTNERS II L.P., FLEET EQUITY PARTNERS VII, L.P., OR FLEET
GROWTH RESOURCES III, INC.
c/o Navis Partners LLC
00 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
NOTICE TO XXXXXXXX STREET PARTNERS
c/o Kirkland & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, P.C.
Fax: 000-000-0000
OTHER REGISTRATION RIGHTS SCHEDULE
1. BT Securities Corporation and Xxxxxxxxxx Securities may have
registration rights pursuant to that certain Securityholders' and
Registration Rights Agreement, dated as of December 19, 1994, among
Perry Capital Corp. (n/k/a FTD, Inc.), Perry Acquisition Partners,
L.P., Xxxx Capital Fund IV, L.P., Xxxx Capital Fund IV-B, L.P.,
Information Partners Capital Fund, L.P., BCIP Associates, BCIP Trust
Associates, L.P., Xxxxxxxx Partners II, L.P., Fleet Growth Resources
III, Inc., Turnberry Partners, L.P., Xxxxxxxx Street Partners, BT
Securities Corporation and Xxxxxxxxxx Securities.
