Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 14, 1996 by and among InaCom Corp., a Delaware corporation (the
"Company"), and Dillon, Read & Co. Inc. (the "Initial Purchaser") pursuant to
the Purchase Agreement, dated as of June 14, 1996 (the "Purchase Agreement"),
between the Company and the Initial Purchaser. In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the holders from time to time of
the Debentures (including the Initial Purchaser) and the holders from time to
time of the Common Stock issued upon conversion of the Debentures (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling or controlled
by, or under direct or direct common control with, such specified person or
(ii) any executive officer or director of such other person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $.10 par value per
share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Debentures.
Conversion Price: At any time, the then-prevailing Conversion
Price as defined in the Indenture.
Damages Accrual Period: See Section 2(e) hereof.
Debentures: The 6% Convertible Subordinated Debentures due June
15, 2006 of the Company being issued and sold pursuant to the Purchase Agreement
and the Indenture.
Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the date hereof
and ending on the earlier of the date that is three years after the latest date
of original issuance of the Debentures and the date that all Registrable
Securities have ceased to be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement. For the
purpose of determining the number of Registrable Securities held by certain
Holders hereunder at any time, Holders of Debentures shall be deemed to be
Holders of the number of shares of Common Stock into which such Debentures are
convertible at such time.
Indenture: The Indenture, dated as of June 14, 1996, between the
Company and First National Bank of Omaha, as trustee, pursuant to which the
Debentures are being issued, as amended or supplemented from time to time in
accordance with the terms hereof.
Initial Shelf Registration: See Section 2(a) hereof.
Losses: See Section 6(a) hereof.
Managing Underwriters: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
Notice Holder: See Section 2(d)(i) hereof.
Purchase Agreement: See the first paragraph of this Agreement.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registrable Securities: The Debentures and the Common Stock of
the Company into which the Debentures are convertible or converted, whether or
not such Debentures have been converted, and any Common Stock issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such Debentures or Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is saleable by the holder thereof pursuant to
Rule 144(k) or (iii) it is sold to the public pursuant to Rule 144, and, as a
result of the event or circumstance described in any of the foregoing clauses
(i) through (iii), the legends with respect to transfer restrictions required
under the Indenture are removed or removable in accordance with the terms of the
Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Brobeck, Phleger & Harrison LLP, or such other
successor counsel as shall be specified by the Holders of a majority of the
Registerable Securities.
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Subsequent Shelf Registration: See Section 2(b) hereof.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall use its best efforts to
prepare and file with the SEC, as soon as practicable but in any event on or
prior to the date ninety (90) days following the first date of original issuance
of the Debentures (the "Filing Date"), a Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration").
The Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in the manner or manners reasonably designated by them (including,
without limitation, one or more Underwritten Offerings). The Company shall use
its best efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act as soon as practicable and to keep the
Initial Shelf Registration continuously effective under the Securities Act until
the earlier of the expiration of the Effectiveness Period or the date a
Subsequent Shelf Registration, as defined below, covering all of the Registrable
Securities has been declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective pursuant to any order
suspending the effectiveness thereof at any time during the Effectiveness Period
(other than because all Registrable Securities registered thereunder shall have
been sold or shall have ceased to be Registrable Securities), the Company shall
use its best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Initial Purchaser or by
the Trustee on behalf of the Holders of
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the Registrable Securities covered by such Registration Statement or by any
Managing Underwriter of such Registrable Securities.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to the Company at least three Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration, which
notice shall specify the date on which such Holder intends to begin such
distribution. As soon as practicable after the date such notice is provided, and
in any event within two Business Days after such date, the Company shall either:
(i) (A) prepare and file with the Commission any required post-effective
amendment to the Shelf Registration or any required supplement to the related
Prospectus or any required supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that, as thereafter delivered
to purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (B) provide the Holders of the Registrable Securities who gave
such notice copies of any documents filed pursuant to Section 2(d)(i)(A); and
(C) inform each such Holder that the Company has complied with its obligations
in Section 2(d)(i)(A) (or that, if the Company has filed a post-effective
amendment to the Shelf Registration which has not yet been declared effective,
the Company will notify each such Holder to that effect, will use its best
efforts to secure the effectiveness of such post-effective amendment and will
immediately notify each such Holder pursuant to Section 2(d)(i)(A) hereof when
the amendment has become effective); each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance with
Section 2(d) hereof (a "Notice Holder") will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related Prospectus only during
the 45-day period commencing with the date on which the Company gives notice,
pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus
may be used for such purpose (such 45-day period is referred to as a "Selling
Period"). The Notice Holders will not sell any Restricted Securities pursuant to
such Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from the Company pursuant to Section 2(d)(i)(C)
hereof.
(ii) in the event (A) of the happening of any event of the kind described
in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof or
(B) that, in the judgment of the Company, it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure
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will be prejudicial to the Company, the Company shall deliver a certificate in
writing, signed by its Chief Executive Officer or Chief Financial Officer, to
the Notice Holders, the Special Counsel and the Managing Underwriters, if any,
to the effect of the foregoing and, upon receipt of such certificate, each such
Notice Holder's Selling Period will not commence until such Notice Holder's
receipt of copies of the supplemented or amended Prospectus provided for in
Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its best efforts to ensure that the use
of the Prospectus may be resumed, and the Selling Period will commence, as soon
as practicable and, in the case of a pending development or event referred to in
Section 2(d)(ii)(B) hereof, as soon as the earlier of (x) public disclosure of
such pending material corporate development or similar material event or (y) in
the judgment of the Company, public disclosure of such material corporate
development or similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any circumstances be
entitled to exercise its right under this Section 2(d)(ii) to defer the
commencement of a Selling Period for more than one (1) time not to exceed 45
days in any three (3) month period or for more than two (2) times not to exceed
90 days in the aggregate in any twelve (12) month period (a "Deferral Period").
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iii) the aggregate number of days in any one Deferral Period exceeds the
periods permitted pursuant to Section 2(d)(ii) hereof or (iv) the number of
Deferral Periods exceeds the number permitted pursuant to Section 2(d)(ii)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iv) are individually referred to herein as an "Event," and the
Filing Date in the case of clause (i), the date on which the effectiveness of
the Shelf Registration has been suspended or proceedings with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in the
case of clause (iii), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods under Section 2(d)(ii) hereof
to be exceeded in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination" which
shall be the following dates with respect to the respective types of Events: the
date the Initial Registration Statement is filed in the case of an Event of the
type described in clause (i), the date that all stop orders suspending
effectiveness of the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section 8(d) or 8(e) of
the Securities Act have terminated, as the case may be, in the case of Events of
the types described in clause (ii), termination of the Deferral
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Period which caused the periods permitted by Section 2(d)(ii) to be exceeded in
the case of the commencement of an Event of the type described in clause (iii),
and termination of the Deferral Period the commencement of which caused the
number of Deferral Periods permitted by Section 2(d)(ii) to be exceeded in the
case of Events of the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages Amount"): (i) to each Holder of a
Debenture that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) on the aggregate principal amount of
Debentures held by such Notice Holder and (ii) to each Holder of Common Stock
that is a Notice Holder, accruing at a rate equal to one-half of one percent per
annum (50 basis points) calculated on an amount equal to the product of (x) the
Conversion Price, times (y) the number of shares of Common Stock held by such
Holder. Notwithstanding the foregoing, no Liquidated Damages Amounts shall
accrue as to any Registrable Securities from and after the earlier of (x) the
date such securities are no longer Registrable Securities, and (y) expiration of
the Effectiveness Period. The rate of accrual of the Liquidated Damages Amount
with respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent Events.
The Company shall pay the liquidated damages due on any Debentures or
Common Stock by depositing with the Trustee under the Indenture, in trust, for
the benefit of the Holders of Debentures or Common Stock or Notice Holders, as
the case may be, entitled thereto, at least one business day prior to the
applicable payment date, sums sufficient to pay the liquidated damages accrued
or accruing since the last preceding payment date through such payment date. For
these purposes, subject to the proviso set forth in the next sentence, payment
dates will be the same dates as the interest payment dates with respect to the
Debentures under the Indenture. The Liquidated Damages Amount due shall be
payable to the Holder of Registrable Securities entitled thereto on such payment
date to the holders of record thereof on the applicable record date
(corresponding to the record dates for interest payments on the Debentures),
provided that accrued Liquidated Damages Amounts shall be paid on the applicable
redemption date upon the redemption of any Debenture (to the extent accrued with
respect to such Debenture) and, in the event of redemption of all Debentures,
shall also be paid on such redemption date to the Holders of Common Stock (to
the extent accrued with respect to such Common Stock). The Trustee shall be
entitled, on behalf of the Holders of Debentures, Common Stock and Notice
Holders, to seek any available remedy for the enforcement of this Agreement,
including for the payment of such liquidated damages. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be such liquidated damages. Nothing shall preclude a
Notice Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement.
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All of the Company's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Securities at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 8(o)).
The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration to be filed or declared effective or unavailable (absolutely
or as a practical matter) for effecting resales of Registrable Securities, as
the case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall effect such registrations
to permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) Use its best efforts to prepare and file with the SEC a
Registration Statement or Registration Statements on any appropriate form under
the Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
that before filing any such Registration Statement or Prospectus or any
amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference and that the
Company is required by applicable securities laws or stock exchange requirements
to file) the Company shall furnish to the Initial Purchaser, the Special Counsel
and the Managing Underwriters of such offering, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
the Initial Purchaser, the Special Counsel and such Managing Underwriters, and
the Company shall not file any such Registration Statement or amendment thereto
or any Prospectus or any supplement thereto (other than such documents which,
upon filing, would be incorporated or deemed to be incorporated by reference
therein and that the Company is required by applicable securities laws or stock
exchange requirements to file) to which the Holders of a majority of the
Registrable Securities covered by such Registration Statement, the Initial
Purchaser or the Special Counsel shall reasonably object in writing within two
full Business Days. If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
that will administer the offering shall be selected by the Holders of a majority
of the Registrable Securities included in such offering, subject to the consent
of the Company (which shall not be unreasonably withheld). No Holder may
participate in any underwritten registration unless such Holder (i) agrees to
sell such Holder's Registrable Securities on the basis reasonably provided in
any underwritten arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
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powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
(b) Use its best efforts to prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; 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 methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) Notify the selling Holders, the Initial Purchaser, the
Special Counsel and the Managing Underwriters, if any, promptly, and (if
requested by any such person) confirm such notice in writing, (i) when a
Prospectus, any Prospectus supplement, a Registration Statement or a
post-effective amendment to a Registration Statement has been filed with the
SEC, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the existence of any fact
or happening of any event which makes any statement of a material fact in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which would require the
making of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
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(e) If reasonably requested by the Initial Purchaser, the Special
Counsel, the Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchaser, the Special Counsel, the Managing
Underwriters, if any, or such Holders, in connection with any offering of
Registrable Securities, agree should be included therein as required by
applicable law, and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, that the Company shall not be
required to take any actions under this Section 3(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each selling Holder, the Special Counsel and the
Initial Purchaser, and each Managing Underwriter, if any, without charge, at
least one conformed copy of the Registration Statement or Statements and any
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing by such Holder, counsel, Initial Purchaser
or underwriter).
(g) Deliver to each selling Holder, the Special Counsel and the
Initial Purchaser and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use
its best efforts to register or qualify or cooperate with the selling Holders,
the Managing Underwriters, if any, and the Special Counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or Managing Underwriter reasonably requests in writing; keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
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(i) Use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required solely as a consequence of the nature of such
selling Holder, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the selling Holder or Holders thereof
or the Managing Underwriters, if any, to consummate the disposition of such
Registrable Securities.
(j) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, promptly prepare and file a post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement, use
its best efforts to cause it to become effective as soon as practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an underwritten offering, those
reasonably requested by the Managing Underwriters, if any, or the Holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the Holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) use its best efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be
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reasonably satisfactory to the Managing Underwriters, if any, Special Counsel
and the Holders of a majority of the Registrable Securities being sold)
addressed to each of the underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing Underwriters;
(iii) use its best efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or any business acquired or to be acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the Managing Underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with Underwritten
Offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold,
the Special Counsel and the Managing Underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and 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 as and to the extent required
thereunder.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the Holders of Registrable Securities being sold, any
Managing Underwriter participating in any disposition of Registrable Securities,
if any, and any attorney or accountant retained by such selling Holders or
underwriter, financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the executive
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, Managing
Underwriter, attorney or accountant in connection with such disposition; subject
to reasonable assurances by each such person that such information will only be
used in connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(n) Cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities
12
to be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
Holders may request.
(o) Provide a CUSIP number for all Registrable Securities not
later than the effective date of the Registration Statement and provide the
Trustee under the Indenture and the transfer agent for the Registrable
Securities with printed certificates for the Registrable Securities which are in
a form eligible for deposit with the Depository Trust Company.
(p) Use its best efforts to cause all Registrable Securities that
are Common Stock and are covered by the Registration Statement to be listed on
each securities exchange or quotation system on which any of the Company's
Common Stock is then listed no later than the date the Registration Statement is
declared effective and, in connection therewith, to the extent applicable, to
make such filings under the Exchange Act (e.g., the filing of a Registration
Statement on Form 8-A) and to have such filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with the notice required pursuant to Section 2(d) hereof
and, promptly after the Company's request, such other information regarding such
Holder and the distribution of such Registrable Securities as may be required to
be included in the Registration or the Prospectus or the Company may from time
to time reasonably request. The Company may exclude from such registration the
Registrable Securities of any Holder who does not furnish such information
provided above for so long as such information is not so furnished. Each Holder
of Registrable Securities as to which any Registration Statement is being
effected agrees promptly to furnish to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not misleading. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in light of the
circumstances under which they were made, not misleading.
5. Registration Expenses. Except as otherwise provided herein, all fees and
expenses incident to the Company's performance of or compliance with this
Agreement
13
shall be borne by the Company whether or not any of the Registration Statements
become effective. Such fees and expenses shall include, without limitation,
(i) all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal
securities or Blue Sky laws (including fees and disbursements of Special Counsel
in connection with Blue Sky qualifications of the Registrable Securities laws of
such jurisdictions as the Managing Underwriters, if any, or Holders of a
majority of the Registrable Securities being sold may designate, which fees and
expenses, together with the reasonable fees and disbursements of its counsel in
connection with the state qualifications pursuant to the Purchase Agreement,
shall not exceed $10,000), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special Counsel
or the Holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) reasonable fees and disbursements of counsel for the Company in connection
with the Shelf Registration, (v) fees and disbursements of all independent
certified public accountants referred to in Section 3(k)(iii) hereof (including
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance) and (vi) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
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 securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay (i) all registration expenses to the extent that the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of such seller of Registrable Securities, (ii) all underwriting discounts and
commissions with respect to Registrable Securities sold by such seller, and
(iii) fees and expenses of special counsel except as provided in Section 5(i)
above.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify
and hold harmless each Holder and each person, if any, who controls any Holder
(within the meaning of either Section 15 of the Securities Act or Section 20(a)
of the Exchange Act) from and against all losses, liabilities, claims, damages
and expenses (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (collectively, "Losses"), arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon 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 arise out of or are
14
based upon the information relating to any Holder furnished to the Company in
writing by such Holder expressly for use therein; provided, that the Company
shall not be liable to any Holder of Registrable Securities (or any person
controlling such Holder) to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if either (A)(i) such Holder
failed to send or deliver a copy of the Prospectus with or prior to the delivery
of written confirmation of the sale by such Holder to the person asserting the
claim from which such Losses arise and (ii) the Prospectus would have corrected
such untrue statement or alleged untrue statement or such omission or alleged
omission, or (B)(x) such untrue statement or alleged untrue statement, omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such Holder thereafter
fails to deliver such Prospectus as so amended or supplemented, with or prior to
the delivery of written confirmation of the sale of a Registrable Security to
the person asserting the claim from which such Losses arise. The Company shall
also indemnify each underwriter and each person who controls such person (within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent and with the same limitations as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. Each
Holder agrees severally and not jointly to indemnify and hold harmless the
Company, its directors, its officers who sign a Registration Statement, and each
person, if any, who controls the Company (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act), from and against
all Losses arising out of or based upon any untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus or
arising out of or based upon any omission of 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 so furnished in writing by
such Holder to the Company expressly for use in such Registration Statement or
Prospectus. In no event shall the liability of any selling Holder of Registrable
Securities 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.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any
15
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all persons, if any, who control any Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (b) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign a
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The 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 the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the
Debentures pursuant to the Purchase Agreement. Benefits received by the Initial
Purchaser shall be deemed to be equal to the total purchase discounts and
commissions received by them pursuant to the Purchase Agreement and benefits
received by any other Holders shall be deemed to be equal to the
16
value of the Debentures and/or Common Stock registered under the Securities Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. The relative fault of the Holders on the one hand and the Company on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Holders
or by the Company and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
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
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 this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying party 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 indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any person controlling any Holder, or the Company, its officers or directors or
any person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.
17
7. Information Requirements.
(a) The Company shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act, and if
at any time the Company is not required to file such reports, it will, upon the
request of any Holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 and Rule
144A under the Securities Act. The Company further covenants that it will
cooperate with any Holder of Registrable Securities and take such further
reasonable action as any Holder of Registrable Securities may reasonably request
(including, without limitation making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act. Upon the request of any Holder
of Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
(b) The Company shall use its best efforts to file the reports
required to be filed by it under the Exchange Act and shall use its best efforts
to comply with all other requirements set forth in the instructions to Form S-3
in order to allow the Company to be eligible to file registration statements on
Form S-3.
8. Miscellaneous.
(a) Remedies. Subject to Section 2(e) hereof, in the event of a
breach by the Company of its obligations under this Agreement, each Holder of
Registrable Securities, in addition to being entitled to exercise all rights
granted by law, including recovery of 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 any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the
date hereof, and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which conflicts with the rights
granted to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
Holders of the Company's securities under any other agreements.
18
(c) 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 departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders;
provided, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(a) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in accordance with the provisions of
Section 8(e);
(b) if to the Company, to:
InaCom Corp.
10810 Farnam Drive
Omaha, NE 68154
Attention: Chief Financial Officer
Telecopy No.: (402) 392-3619
with a copy to:
McGrath, North, Mullin & Kratz, P.C.
1400 One Central Park Plaza
Omaha, NE 68102
Attention: David L. Hefflinger
Telecopy No.: (402) 341-0216
19
(c) if to the Initial Purchaser, to:
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
Attention: Syndicate Department
Telecopy No.: (212) 486-6233
(d) if to the Special Counsel, to:
Brobeck, Phleger & Harrison LLP
1301 Avenue of the Americas
New York, NY 10019
Attention: Alexander D. Lynch
Telecopy No.: (212) 586-7878
or to such other address as such person may have furnished to the other persons
identified in this Section 8(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain,
or will cause the Trustee and/or its registrar and transfer agent to maintain, a
register with respect to the Registrable Securities in which all transfers of
Registrable Securities of which the Company has received notice will be
recorded. The Company may deem and treat the person in whose name Registrable
Securities are registered in such register of the Company as the owner thereof
for all purposes, including, without limitation, the giving of notices under
this Agreement.
(f) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registerable Securities from the Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so
20
executed shall be deemed to be original and all of which taken together shall
constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is 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 and the registration rights
granted by the Company to Holders of the Registrable Securities sold pursuant to
the Purchase Agreement. Except as provided in the Purchase Agreement, 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 to the Holders of the Registrable Securities. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all
best efforts to take, or cause to be taken, all appropriate action, do or cause
to be done all things reasonably necessary, proper or advisable under applicable
law, and execute and deliver such documents and other papers, as may be required
to carry out the provisions of this Agreement and the other documents
contemplated hereby and consummate and make effective the transactions
contemplated hereby.
21
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each which shall remain in effect in accordance with their
terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
INACOM CORP.
By: /s/ BILL L. FAIRFIELD
Name: Bill L. Fairfield
Title: President and C.E.O.
Accepted as of the date first
above written:
DILLON, READ & CO. INC.
By: /s/ JOHN M. BOYLE
Name: John M. Boyle
Title: Vice President
22