1
Exhibit 4.18
EXECUTION COPY
FOURTH AMENDMENT TO
THE REGISTRATION RIGHTS AGREEMENT
THIS FOURTH AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT (this
"Amendment") is made effective as of the 10th day of June, 1996, by and among
The Cerplex Group, Inc., a Delaware corporation (the "Company"), the investors
listed on Schedule A hereto, each of which is herein referred to as an
"Investor" and collectively as the "Investors," the security holders of the
Company listed on Schedule B hereto, each of which is herein referred to as a
"Stockholder" and collectively as the "Stockholders," the banks listed on
Schedule C hereto, each of which is herein referred to as a "Bank Holder" and
collectively as the "Bank Holders" and each of the parties listed on Schedule D
hereto, each of which is herein referred to as a "Series B Preferred Holder" and
collectively as the "Series B Preferred Holders."
RECITALS:
A. The Company, the Investors, the Stockholders, and certain other
investors and stockholders entered into a Registration Rights Agreement dated
November 19, 1993 (as in effect prior to the effectiveness of this Amendment,
the "Existing Registration Rights Agreement").
B. Pursuant to a Waiver and Amendment Agreement, dated as of April
15, 1996, among The Northwestern Mutual Life Insurance Company, John Hancock
Mutual Life Insurance Company and North Atlantic Smaller Companies Investment
Trust PLC (each individually, a "Warrant Group Holder" and collectively, the
"Warrant Group Holders") and the Company, and a Warrant Agreement dated as of
April 15, 1996, among the Warrant Group Holders and the Company, the Company
issued one million (1,000,000) warrants (the "1996 Warrants") to purchase Common
Stock (as such term is defined in the Existing Registration Rights Agreement) to
the Warrant Group Holders.
C. Pursuant to a First Amendment to Credit Agreement and Limited
Waiver (the "Bank Amendment and Waiver Agreement"), dated as of April 15, 1996,
among the Company, Wells Fargo Bank, National Association, as Administrative
Agent, and the Bank Holders and a Warrant Agreement (the "Bank Warrant
Agreement"), dated as of April 15, 1996, among the Company and the Bank Holders,
the Company issued one hundred twenty-five thousand (125,000) warrants (the
"Bank Warrants") to purchase Common Stock (as such term is defined in the
Existing Registration Rights Agreement) to the Bank Holders.
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D. Pursuant to the Third Amendment to the Existing Registration
Rights Agreement, dated as of April 15, 1996, by and among the Company, the
Investors, the Stockholders and the Bank Holders, the shares of Common Stock
issuable upon exercise of the Bank Warrants and the 1996 Warrants have been made
subject to the Existing Registration Rights Agreement.
E. The Company and the Series B Preferred Holders (as defined
herein) are parties to the Stock Purchase Agreement of even date herewith (the
"Series B Agreement") pursuant to which Series B Preferred Holders have
purchased an aggregate of 8,000 shares of the Company's Series B Preferred
Stock; and in order to induce the Company and the Series B Preferred Holders to
enter into the Series B Agreement, the Series B Preferred Holders and the
Company hereby agree that the Existing Registration Rights Agreement as hereby
amended shall govern the rights of the Series B Preferred Holders to cause the
Company to register shares of Common Stock issuable to the Series B Preferred
Holders upon the conversion of the Series B Preferred Stock and certain other
matters set forth herein.
F. The parties to the Existing Registration Rights Agreement wish to
amend the terms thereof to (i) permit the Bank Holders certain additional rights
hereunder and (ii) permit the Series B Preferred Holders certain rights.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINED TERMS
Terms used herein without definition shall have the meaning given
such terms in the Existing Registration Rights Agreement. The terms specified
below are hereby incorporated, as applicable, into the Existing Registration
Rights Agreement. As used in this Amendment, the following terms have the
respective meanings specified below:
"ADDITIONAL SHARES" -- has the meaning given such term in Section
1.2(b) of the Existing Registration Rights Agreement, as amended
hereby
"AMENDMENT, THIS" -- means this Fourth Amendment to the Existing
Registration Rights Agreement
"DEFICIENCY" -- has the meaning given such term in Section 1.2(f) of
the Existing Registration Rights Agreement, as amended hereby
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"EFFECTIVENESS PERIOD" -- has the meaning given such term in Section
1.19(a) of the Existing Registration Rights Agreement, as amended
hereby
"EXCESS SHARES" -- has the meaning given such term in Section 1.2(f)
of the Existing Registration Rights Agreement, as amended hereby
"EXISTING REGISTRATION RIGHTS AGREEMENT" -- Recital A
"NASD" means the National Association of Securities Dealers, Inc.
"NON-INITIATING HOLDER" -- has the meaning given such term in
Section 1.2(b) of the Existing Registration Rights Agreement, as
amended hereby
"NON-REQUESTING HOLDER" -- has the meaning given such term in
Section 1.12(f) of the Existing Registration Rights Agreement, as
amended hereby
"SELLING GROUP" -- shall have the meaning given such term in Section
1.6
"SERIES B AGREEMENT" -- Recital E
"SHELF REGISTRATION" -- has the meaning given such term in Section
1.19(a) of the Existing Registration Rights Agreement, as amended
hereby
"SHORTAGE" -- shall have the meaning given such term in Section
1.2(b) of the Existing Registration Rights Agreement, as amended
hereby
"SHORTFALL" -- has the meaning given such term in Section 1.2(b) of
the Existing Registration Rights Agreement, as amended hereby
"SPROUT" -- means (a) (x) The Sprout Group, and any affiliates
thereof, Sprout Growth II, L.P., or (y) DLJ Capital Corporation or
any subsidiaries or affiliates thereof, as the case may be, for so
long as it holds any warrants on the date hereof issued pursuant to
the Existing Registration Rights Agreement (the "Original Sprout
Warrants") or any Common Stock issued pursuant to the exercise of
such Warrants and (b) any successors thereto or direct or successive
transferees thereof; it being the intention of the parties hereto
that any successive holder of a warrant, or the Common Stock issued
upon the exercise of such warrant, which warrant derived from an
Original Sprout Warrant, shall be included in this definition,
provided that any holder of shares of Common Stock issued upon the
exercise of any Original Sprout Warrant or any warrant that derived
from such Original Sprout Warrant which shares have been, or derive
from shares that have been, publicly sold pursuant to a registration
statement filed under the Act or
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pursuant to Rule 144 shall, to the extent of its holdings of such
shares, be excluded from this definition. Rights under this
Agreement of successors, assigns and transferees of Sprout Holders
are subject to compliance with the requirements of Section 1.13 of
the Existing Registration Rights Agreement.
SECTION 2. AMENDMENTS
2.1 AMENDMENTS TO SECTION 1.1 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
(A) Section 1.1 of the Existing Registration Rights Agreement is
hereby amended by amending and restating the following definition, in its
entirety, as set forth below:
(Q) The term "Registrable Securities" means
(i) the Common Stock currently issued to the Investors and
the Stockholders,
(ii) all Common Stock issued or issuable to the Investors,
the Stockholders, the Bank Holders and the Series B Preferred
Holders upon exercise or conversion, as the case may be, of the
Warrants, the Bank Warrants, other warrants, options or the Series B
Preferred Stock held by them, and
(iii) all Common Stock issued (or issuable upon the exercise
or conversion, as the case may be, of any Warrant, any Bank Warrant,
any other warrant, option or the Series B Preferred Stock, any right
or any other security, which Warrant, Bank Warrant, Series B
Preferred Stock, other warrant, right, any other security or option
is itself issued) as a dividend or other distribution with respect
to, or in exchange for or in replacement of, the shares of Common
Stock referenced in (i) and (ii) above,
excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which his rights under this Section 1
are not assigned.
(B) The following definitions are hereby added to Section 1.1 of the
Existing Registration Rights Agreement so as to preserve the alphabetical
ordering of the definitions set forth therein.
The term "Series B Preferred Holders" means (a) each of
the entities, or persons, as the case may be, set forth on Schedule
D hereto, for so long as they hold any shares of Series B Preferred
Stock or any Common Stock issued pursuant to the conversion of such
shares and (b) any successors thereto or direct or successive
transferees thereof; it being the intention of the parties hereto
that any successive holder of Series B Preferred
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Stock, or the Common Stock issued upon the conversion of such Series
B Preferred Stock, shall be included in this definition, provided
that any Holder of shares of Common Stock issued upon the conversion
of any share of Series B Preferred Stock that has been, or derives
from any share that has been, publicly sold pursuant to a
registration statement filed under the Act or pursuant to Rule 144
shall, to the extent of its holdings of such shares, be excluded
from this definition.
Any decisions to be made by the Series B Preferred
Holders shall be made upon a vote of a majority in interest of
Series B Preferred Holders on the basis of the number of shares of
Common Stock issuable upon conversion of Series B Preferred Stock
and the number of shares of such Common Stock then held. Rights of
successors, assigns and transferees of Series B Preferred Holders
are subject to compliance with the requirements of Section 1.13.
The term "Series B Preferred Stock" means that certain
series of Preferred Stock designated Series B, having par value of
$0.001 per share, enjoying the rights and privileges set forth in
that Certificate of Designation of the Company as in effect on the
date hereof.
2.2 AMENDMENTS TO SECTION 1.2
(A) Section 1.2(a) of the Existing Registration Rights Agreement is
hereby amended by deleting the word "and" at the end of clause (ii), by deleting
the period at the end of clause (iii) and replacing it with a semi-colon, and by
adding the following clauses after clause (iii):
(iv) the Bank Holders may request one (1) registration under this
Section 1.2; and
(v) the Series B Preferred Holders may request one (1)
registration under this Section 1.2.
(B) Section 1.2(b) of the Existing Registration Rights Agreement is
hereby amended to delete the first full paragraph and such paragraph is restated
in its entirety as follows:
If the Initiating Demand Holder in respect of any
registration requested under this Section 1.2 intends to distribute
the Registrable Securities covered by its request by means of an
underwriting, it shall so advise the Company as a part of its
request made pursuant to subsection 1.2(a) and the Company shall
include such information in the written notice referred to in
subsection 1.2(a)(A). The underwriter will be one or more
underwriting firms of recognized national standing selected, after
consultation with the Initiating Demand Holder, by the Company and
shall be acceptable to the Initiating
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Demand Holder, which shall not unreasonably withhold its acceptance
of such underwriters, provided that any Original Warrantholder,
Independent Equity Group Holder or Series B Preferred Holder that
constitutes, in whole or part, the Initiating Demand Holder may
require the managing underwriter so selected above to invite not
more than one (1) underwriter selected by such Original
Warrantholder, Independent Equity Group Holder or Series B Preferred
Holder to join the selling syndicate in respect of such
registration. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and inclusion
in the underwriting of the Registrable Securities of such Holder in
such registration (unless otherwise mutually agreed by the
Initiating Demand Holder and such Holder) to the extent provided
herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in
subsection 1.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such
underwriting, all as contemplated by subsection 1.4(e).
Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Demand Holder that the number of
securities requested to be included in such registration exceeds the
number that can be sold in such offering within a price range
acceptable to the Initiating Demand Holder (such advice to state the
basis of such opinion and the approximate number of shares of
Registrable Securities that may be included in such offering without
such effect), then the Initiating Demand Holder shall so advise all
Holders of Registrable Securities which would otherwise be included
in such registration pursuant hereto, and the number of shares of
Registrable Securities that may be so included shall be allocated as
follows:
(i) All of the Registrable Securities of the
Initiating Demand Holder and each member (or who derived
their ownership of Registrable Securities after the date
hereof from such Holder) of the applicable group (as set
forth in Section 1.2(a)(i) through and including
1.2(a)(v) (a "group") to which such Holder belongs,
shall first be included in such registration; provided,
however, in the event the number of Registrable
Securities requested to be included in such Registration
by the Holders in such group exceeds the number of
shares which may be included in such registration, such
allocation shall be made among the Holders of such group
pro rata based upon the number of Registrable Securities
owned by each such Holder. For the purposes of
determining to which group Sprout belongs any Original
Sprout Warrant received, or the Common Stock received
upon the exercise thereof, shall, if applicable, be
included in the Independent Equity Group and any shares
of Series B Preferred Stock, or Common Stock received
upon the conversion thereof, shall be included, if
applicable, with those of the Series B Preferred
Holders; and
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(ii) in the event that the number of
Registrable Securities includable in such registration
exceeds the number of Registrable Securities includable
therein pursuant to the foregoing clause (i) (such
securities "Additional Shares"), then in such case, such
Additional Shares shall be allocated to the Holders of
Registrable Securities which are not members of the
group to which the Initiating Demand Holder belongs but
which have requested inclusion in the registration (the
"Non- Initiating Holders") on a pro rata basis (as
nearly as practicable) based on the number of
Registrable Securities held by each. In the event this
clause (ii) is applicable, and for purposes of effecting
the calculations provided for herein, the number of
Registrable Securities owned by all of the Primary
Stockholders as a group shall be deemed to be equal to
the number of Registrable Securities owned by the
Investors as a group (not counting for this purpose any
Investor that is a member of the group to which the
Initiating Demand Holder belongs and any Common Stock
issued, or issuable, upon conversion of the Series B
Preferred Stock owned by Sprout). As such, each Primary
Stockholder who is a Non- Initiating Holder shall be
deemed for the purposes of the computations in this
paragraph to own a proportionately smaller number of
shares. In addition, to the extent the Registrable
Securities in respect of the 1996 Warrants result in an
allocation of Additional Shares to the Independent
Equity Group under this clause (ii) that is less than it
would have been if there had been no issuance of 1996
Warrants (such deficiency is referred to herein as the
"Shortfall"), the Primary Stockholders will be deemed,
for purposes of this clause (ii), to have assigned to
the Independent Equity Group a number of Additional
Shares that would have otherwise been allocated to such
Primary Stockholders equal to 50% of such Shortfall.
The number of shares of Registrable Securities to be included in
such underwriting shall not be reduced unless all other securities
(including, without limitation, any securities of the Company or any
other person then included in such registration, as contemplated by
the immediately succeeding sentence) are first entirely excluded
from the underwriting. The Company will not register securities for
sale for the account of any person other than Holders of Registrable
Securities participating in such registration and the Company in
connection with any registration pursuant to this Section 1.2 unless
it shall have obtained the prior written consent of the Initiating
Demand Holder or unless the requirements of Section 1.14 have been
fully satisfied in respect of such other securities. Upon receipt of
such consent, the Company will notify each Holder of Registrable
Securities requesting participation in such registration of such
consent.
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(c) Section 1.2(d) of the Existing Registration Rights Agreement is
hereby amended so that clause "(ii)" shall be renumbered as clause "(iii)" and
the following clause shall be added as clause "(ii)":
A registration statement effected pursuant to Section
1.19 shall not preclude a request or a demand under Section 1.2 or a
registration, public offering or distribution in respect thereof.
The Holders acknowledge and agree that upon the receipt from a
Holder of a request under Section 1.2, no other request under this
Section 1.2 or Section 1.12 need be honored by the Company pending
the discharge or withdrawal of such request, and the first such
request under this Section 1.2 or Section 1.12, as the case may be,
shall preempt all other such requests until such time as the
procedures and processes that commence upon the receipt of such
request shall have been completed in a manner consistent with the
intent hereof or such request is withdrawn.
2.3 AMENDMENT TO SECTION 1.3 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.3 of the Existing Registration Rights Agreement is hereby
amended to add "(i)" before the word "If" in the first sentence of Section 1.3
and to add the following paragraph as Section 1.3(b):
(b) In the event that the Company has filed,
or files, a registration statement within thirty (30) days of
receipt of a notice under Section 1.2 or 1.12, pursuant to this
Section 1.3, then the Company shall not be required to honor any
demand under Section 1.2 or 1.12 until the earlier of (i) one
hundred twenty days following the date of such notice or (ii) such
date as the Company is no longer using its best efforts to effect
such offering (including, without limitation, the date the Company
withdraws such registration statement).
2.4 AMENDMENT TO SECTION 1.4(E) OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.4(e) of the Existing Registration Rights Agreement is
hereby amended to add ", Bank Holders or Series B Preferred Holders" after the
word "Investors" but before the word "shall" in the last sentence of Section
1.4(e).
2.5 AMENDMENT TO SECTION 1.6 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.6 of the Existing Registration Rights Agreement is hereby
amended so that all of the words from "All expenses" up to, but not including
"provided, however," are deleted and replaced with the following:
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All expenses other than underwriting discounts and
commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, Section 1.12 and Section
1.19, including (without limitation) all registration, filing and
qualification fees of the Act and any other securities or Blue Sky
laws, printers and accounting fees, fees and disbursements of
counsel for the Company and the Stockholders and the reasonable and
customary fees and disbursements of one counsel for the selling
Investors, Bank Holders and Series B Preferred Holders
(collectively, the "Selling Group") (excluding, however, any fees
and disbursements for special counsel for the Holders other than
such one counsel for the Selling Group; the Selling Group shall
appoint its counsel by a two-thirds vote of the Registrable
Securities of those Holders who are members of the Selling Group
then participating in such registration) shall be borne and paid by
the Company (which right in favor of the Holders is assignable by
the Holders as provided in Section 1.13);
2.6 AMENDMENT TO SECTION 1.7 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.7 of the Existing Registration Rights Agreement is hereby
amended so that the words "selling Investors" are deleted and replaced with the
words "Selling Group" and the words "such Investors" are replaced with "members
of the Selling Group."
2.7 AMENDMENT TO SECTION 1.8 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.8 of the Existing Registration Rights Agreement shall be
deleted and restated in its entirety as follows:
1.8 Underwriting Requirements.
(a) In connection with any offering involving an underwriting
of securities of the Company referred to in Section 1.3, the Company
shall not be required under said Section 1.3 to include any of the
Holders' Registrable Securities in such underwriting unless such
Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity
as such underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total
amount of securities (other than securities to have been originally
offered under such offering by the Company for its own account or
for the account of persons other than the Holders) requested by
holders of such securities (including Registrable Securities
requested by the Holders) to be included in such offering (with
respect to any such offering, the "piggyback securities") exceeds
the amount of securities that the underwriters determine in their
sole discretion can be sold without jeopardizing the success of the
sale of such originally offered securities, then the Company shall
be
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required to include in such offering only that number of such
piggyback securities, including Registrable Securities, which the
underwriters reasonably determine in their sole discretion will not
jeopardize the success of the sale of said originally offered
securities (the piggyback securities to be so included in such
offering to be apportioned among the Holders (or who derived their
ownership of Registrable Securities after the date hereof from
Holders) on a pro rata basis, in proportion (as nearly as
practicable) to the amount of Registrable Securities owned by each
such Holder to the piggyback securities, provided, however, that for
purposes of such determination, the number of Registrable Securities
owned by all of the Primary Stockholders as a group shall be deemed
to be equal to the number of Registrable Securities owned by the
Investors as a group (not counting for this purpose any Series B
Preferred Stock, or Common Stock issued or issuable upon the
conversion thereof, owned by Sprout). As such, each Primary
Stockholder shall be deemed for the purposes of such calculations to
own a proportionately smaller number of shares. In addition, to the
extent the Registrable Securities in respect of the 1996 Warrants
result in an allocation of piggyback securities to the Independent
Equity Group under this Section 1.8 that is less than it would have
been if there had been no issuance of 1996 Warrants (such deficiency
is referred to herein as the "Shortage"), the Primary Stockholders
will be deemed, for purposes of this Section 1.8, to have assigned
to the Independent Equity Group a number of piggyback securities
that would have otherwise been allocated to such Primary
Stockholders equal to 50% of such Shortage.
2.8 AMENDMENT TO SECTION 1.10(A) OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.10(a) of the Existing Registration Rights Agreement is
amended so that the phrase ", Bank Holders or Series B Preferred Holders" is
included in the first parenthetical after the word "Investors" and before the
comma which follows the word "Investors."
2.9 AMENDMENT TO SECTION 1.12 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
(a) Section 1.12(a) of the Existing Registration Rights Agreement is
hereby amended and restated in its entirety as follows:
1.12 Form S-3 Registration. (a) One or more Holders (such
Holders are, with respect to each request made by them under this
Section 1.12, referred to collectively as a "Requesting Holder") may
make written requests of the Company to effect a registration on
Form S-3 and any related qualification or compliance with respect to
all or a part of the Registrable Securities owned by such Requesting
Holder, provided that such Requesting Holder belongs to one or more
of the following: the Northwestern Group Holders, the Hancock Group
Holders, the Independent Equity Group Holders, the Primary
Stockholders, Bank Holders or Series B Preferred Holders.
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(b) Section 1.12 of the Existing Registration Rights Agreement is
hereby amended to include the following as "Section 1.12(g)":
A registration statement effected pursuant to Section
1.19 shall not preclude a request or a demand under Section 1.12 or
a registration, public offering or distribution in respect thereof.
The Holders acknowledge and agree that upon the receipt from a
Holder of a request under Section 1.12, no other request under this
Section 1.12 or Section 1.2 need be honored by the Company pending
discharge or withdrawal of such request, and the first such request
under this Section 1.12 or Section 1.2, as the case may be, shall
preempt all other such requests until such time as the procedures
and processes that commence upon the receipt of such request shall
have been completed in a manner consistent with the intent hereof or
such request is withdrawn.
(c) Section 1.12(b)(ii)(D) of the Existing Registration Rights
Agreement is amended to add the following language after "Section 1.12" and
before the ";
provided, however, that in no event shall a registration effected
pursuant to Section 1.12(a) be counted for the purposes of this
Section 1.12(b)(ii)(D) if such firmly underwritten registration
statement on Form S-3 was initiated by a Bank Holder or a Series B
Preferred Holder as a "Requesting Holder" under Section 1.12.
(d) Section 1.12(b)(ii)(E) of the Existing Registration Rights
Agreement is hereby amended so that "five (5)" is deleted and replaced with
"seven (7)."
(e) Section 1.12(b)(ii)(F) of the Existing Registration Rights
Agreement shall be amended:
(F) if the Company has, within the 90-day period preceding the
date of such request, already effected an underwritten registration
statement.
(f) Section 1.12(f)(i) and (ii) are hereby amended and restated in
their entirety as follows:
(i) All of the Registrable Securities of the Requesting Holder
and each member (or who derived their ownership of Registrable
Securities after the date hereof from such Holder) of the applicable
group (as set forth in Section 1.12(a) (a "group")) to which such
Holder belongs, shall first be included in such registration;
provided, however, in the event the number of Registrable Securities
requested to be included in such Registration by the Holders in such
group exceeds the number of shares which may be included in such
registration, such allocation shall be made among the Holders of
such group pro rata based upon the number of Registrable Securities
owned by each such
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Holder. For the purposes of determining to which group Sprout
belongs any Original Sprout Warrant received, or the Common Stock
received upon the exercise thereof, shall, if applicable, be
included in Independent Equity Group and any shares of Series B
Preferred Stock, or Common Stock received upon the conversion
thereof, shall be included, if applicable, with those of the Series
B Preferred Holders; and
(ii) in the event that the number of Registrable
Securities includable in such registration exceeds the number of
Registrable Securities includable therein pursuant to the foregoing
clause (i) (such securities "Excess Shares"), then in such case,
such Excess Shares shall be allocated to the Holders of Registrable
Securities which are not members of the group to which the
Requesting Holder belongs but which have requested inclusion in the
registration (the "Non-Requesting Holders") on a pro rata basis (as
nearly as practicable) based on the number of Registrable Securities
held by each. In the event this clause (ii) is applicable, and for
purposes of effecting the calculations provided for herein, the
number of Registrable Securities owned by all of the Primary
Stockholders as a group shall be deemed to be equal to the number of
Registrable Securities owned by the Investors as a group (not
counting for this purpose any Investor that is a member of the group
to which the Requesting Holder belongs and any Common Stock issued,
or issuable, upon conversion of the Series B Preferred owned by
Sprout). As such, each Primary Stockholder who is a Non-Requesting
Holder shall be deemed for the purposes of the computations in this
paragraph to own a proportionately smaller number of shares. In
addition, to the extent the Registrable Securities in respect of the
1996 Warrants result in an allocation of Excess Shares to the
Independent Equity Group under this clause (ii) that is less than it
would have been if there had been no issuance of 1996 Warrants (such
deficiency is referred to herein as the "Deficiency"), the Primary
Stockholders will be deemed, for purposes of this clause (ii), to
have assigned to the Independent Equity Group a number of Excess
Shares that would have otherwise been allocated to such Primary
Stockholders equal to 50% of such Deficiency.
2.10 AMENDMENT TO SECTION 1.14 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.14 of the Existing Registration Rights Agreement is hereby
amended so that the phrase "without the prior written consent of the Investors
holding two-thirds of the Registrable Securities held by Investors," is replaced
with the phrase "without the prior written consent of the Investors and Series B
Preferred Holders collectively holding two-thirds of the aggregate Registrable
Securities held by the Investors and the Series B Preferred Holders."
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2.11 MODIFICATION OF SECTION 1.15 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 1.15 is hereby modified to delete the phrase "in the case of a
nonunderwritten offering."
2.12 ADDITION OF SECTION 1.19 TO EXISTING REGISTRATION RIGHTS AGREEMENT
The following paragraphs are hereby added to the Existing Registration
Rights Agreement:
1.19 Shelf Registration.
(a) (i) The Company shall file, not later than one
hundred fifty (150) days after the date hereof, a "shelf" registration
statement (the "Shelf Registration") covering the securities then
constituting Registrable Securities (other than shares held by Holders
who are permitted, as of June 10, 1996, to sell all their shares during
a three (3)-month period under Rule 144 of the Act and the Registrable
Securities of Holders who have decided not to participate in a
registration under this Section 1.19) on any appropriate form, which
shall state that the subject Registrable Securities are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Act.
The Company shall use its reasonable best efforts to have the Shelf
Registration declared effective as soon as practicable after its filing
and to keep the Shelf Registration continuously effective and current
for a period of three (3) years following the date hereof or, if
earlier, until all Registrable Securities included therein have been
sold or can be sold within three months under Rule 144 of the Act. If
necessary, the Company shall cause to be filed, and shall use its
reasonable best efforts to have declared effective as soon as
practicable following filing, additional "shelf" registration
statements or amendments as necessary to maintain such effectiveness
for such period. It is understood, however, that the Shelf Registration
may be required to be amended or suspended for reasonable periods of
time from time to time due to a variety of matters, including corporate
developments undertaken by the Company in good faith and for valid
business reasons such as the acquisition of third parties or the
divestiture of assets which developments may require notice to the
holders pursuant to Section 1.19(vii). The Holders acknowledge that
during these periods they may not be entitled to sell under the
registration statement filed pursuant to this Section 1.19.
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(ii) Within ten (10) days of the filing of a
registration statement pursuant to this Section 1.19, the Company shall
give written notice of such fact to all Holders (and shall deliver a
copy of such registration statement to all Holders). Within ten (10)
days of the receipt thereof, each Holder which desires its Registrable
Securities to be included in such registration statement shall provide
notice of such desire to the Company, and shall indicate the number of
Registrable Securities it holds that it wishes to be included in such
registration statement.
(b) The Holders acknowledge that the procedures section
in the subsequent subparagraph (c) of this Section 1.19 (the
"Procedures") shall be applicable only to the shelf registration
described in the foregoing Subsection (a) and that to the extent that
any other provisions of this Agreement conflict with the Procedures by
reason of the application of this Section 1.19, the Procedures shall
govern such Shelf Registration.
(c) The Company, in connection with its obligation under
Section 1.19, shall:
(i) Prepare and file with the SEC 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 and current for the period specified in Section
1.19(a) and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement in
accordance with the Holders intended method of disposition set forth in
such registration statement for such period.
(ii) Make every reasonable effort to obtain the
withdrawal of any order or other action suspending the effectiveness of
any such registration statement or suspending the qualification or
registration (or exemption therefrom) of the Registrable Securities for
sale in any jurisdiction.
(iii) As soon as practicable after public disclosure
of any matters described in subsection (a) of this Section 1.19 and in
accordance with the Company's obligations under the 1934 Act, the Act
or the rules of the NASD or otherwise, or as soon as practicable after
the happening of any other event that makes any statement made in such
registration statement or registration statements or in any related
prospectus, prospectus supplement, amendment or document incorporated
therein by reference untrue in any material respect or that requires
the making of any changes in such registration statement or
registration statements or in any such prospectus, supplement,
amendment or other such document so that 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
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statements therein (in the case of any prospectus in the light of the
circumstances under which they were made) not misleading, prepare a
supplement or post-effective amendment to such registration statement
or to the related prospectus or any document incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, such prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading.
(iv) Furnish to each Holder of Registrable Securities
covered by such registration statement such number of copies of such
registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such Holder may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Holder.
(v) Promptly notify each Holder of Registrable
Securities covered by such registration statement of any stop order
issued or threatened by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered.
(vi) Use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws
of such jurisdictions in the United States as any Holder of Registrable
Securities covered by such registration statement shall reasonably
request and (ii) cause such Registrable Securities to be registered
with or approved by such other governmental agencies or authorities as
may be necessary by virtue of the business and operations of the
Company and to do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition of the Registrable Securities owned by such Holder;
provided that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (vi), (B) subject itself to
taxation in any such jurisdiction or (C) consent to general service of
process in any such jurisdiction.
(vii) Promptly notify each Holder of Registrable
Securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the Act,
of the occurrence of any event as a result of which the prospectus
contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing,
and the Company will prepare a supplement or
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amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an 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 promptly make available to each
such Holder any such supplement or amendment.
(viii) Use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed, if any.
(ix) The Company may require each Holder of
Registrable Securities included in such registration statement to
promptly furnish in writing to the Company such information regarding
distribution of the Registrable Securities as the Company may from time
to time reasonably request and such other information as may be legally
required in connection with such.
(d) The following provisions of the Existing Registration
Rights Agreement shall be deemed deleted and inapplicable to a
registration statement effected under this Section 1.19: Section
1.4(i), Section 1.4(k), Section 1.4(m) and Section 1.10. In addition,
in such event, the words "such drafts" in Section 1.4 shall be deemed
deleted in such event, with respect to any Shelf Registration.
2.13 ADDITION OF SECTION 1.20 TO THE EXISTING REGISTRATION RIGHTS
AGREEMENT
The following paragraph is hereby added as Section 1.20 of the Existing
Registration Rights Agreement:
The Company agrees not to utilize its rights under any of
Sections 1.2(c) or 1.12(b)(ii)(C) based upon a registration and/or
public sale or distribution of Registrable Securities effected under
Section 1.12 or Section 1.19, in the case of Section 1.2, or Section
1.2 or Section 1.19 in the case of Section 1.12.
2.14 AMENDMENT TO SECTION 2.7 OF THE EXISTING REGISTRATION RIGHTS
AGREEMENT
Section 2.7 of the Existing Registration Rights Agreement is hereby
amended so that the phrase "the Series B Preferred Holders" is added to the
third sentence of Section 2.7 after each occurrence of the phrase "the
Independent Equity Group Holders."
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2.15 ADDITION OF SCHEDULE D TO EXISTING REGISTRATION RIGHTS
AGREEMENT
Schedule D hereto is hereby added to the Existing Registration Rights
Agreement as Schedule D.
SECTION 3. MISCELLANEOUS
3.1 SERIES B PREFERRED HOLDERS TO BECOME PARTIES
Each Series B Preferred Holder by executing this Amendment shall become
a party to, and shall be obligated and bound by the provisions of, the Existing
Registration Rights Agreement, as amended by this Amendment.
3.2 GOVERNING LAW. This Amendment shall be governed by and construed
under the laws of the State of New York as applied to agreements among New York
residents entered into and to be performed entirely within New York.
3.3 DUPLICATE ORIGINALS. Two or more duplicate originals of this
Amendment may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument. This
Amendment may be executed in one or more counterparts and shall be effective
when at least one counterpart shall have been executed by each party hereto, and
each set of counterparts which, collectively, show execution by each party
hereto shall constitute one duplicate original.
3.4 EFFECT OF THIS AMENDMENT. Except as specifically provided in this
Amendment, no terms or provisions of the Existing Registration Rights Agreement
have been modified or changed by this Amendment and the terms and provisions of
the Existing Registration Rights Agreement, as amended hereby, shall continue in
full force and effect. This Amendment and the amendments contained herein shall
have and be in effect on and after the date hereof upon the execution by the
Company and the required number of each of the Investors, Stockholders, Bank
Holders and Series B Preferred Holders.
3.5 SECTION HEADINGS. The titles of the section hereof appear as a
matter of convenience only, do not constitute a part of this Amendment and shall
not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on their behalf by a duly authorized officer or agent thereof, as the
case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By:_______________________________________
James T. Schraith, President
Address: 1382 Bell Avenue
Tustin, California 92680
STOCKHOLDERS:
__________________________________________
William A. Klein
Address: 1382 Bell Avenue
Tustin, California 92680
__________________________________________
Richard C. Davis
Address: 1382 Bell Avenue
Tustin, California 92680
__________________________________________
Myron Kunin
Address: Regis Corporation
7201 Metro Boulevard
Minneapolis, MN 55439
[Signature Page to the FOURTH AMENDMENT TO THE 1993 REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors, Stockholders, Banks
and Series B Preferred Holders listed therein.]
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STOCKHOLDERS (CONTINUED)
___________________________________________
Theodore J. Wisniewski
Address: 1382 Bell Avenue
Tustin, California 92680
[Signature Page to the FOURTH AMENDMENT TO THE 1993 REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors, Stockholders, Banks
and Series B Preferred Holders listed therein.]
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INVESTORS:
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation, Managing
General Partner
By: ___________________________________
Robert Finzi, Attorney-in-Fact
DLJ CAPITAL CORPORATION
By: ___________________________________
Robert Finzi, Attorney-in-Fact
CANAAN VENTURE LIMITED PARTNERSHIP
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: ___________________________________
General Partner
CANAAN VENTURE OFFSHORE LIMITED
PARTNERSHIP C.V.
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: ___________________________________
General Partner
[Signature Page to the FOURTH AMENDMENT TO THE 1993 REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors, Stockholders, Banks
and Series B Preferred Holders listed therein.]
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BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co., General Partner
By: ____________________________________
Robert H. Buescher, General Partner
By: ____________________________________
Robert H. Buescher, Attorney-in-Fact
BANK HOLDERS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: ________________________________
Name: __________________________
Title: _________________________
SUMITOMO BANK OF CALIFORNIA
By: ________________________________
Name: __________________________
Title: _________________________
BHF - BANK AKTIENGESELLSCHAFT
By: ________________________________
Name: __________________________
Title: _________________________
COMERICA BANK CALIFORNIA
By: ________________________________
Name: __________________________
Title: _________________________
[Signature Page to the FOURTH AMENDMENT TO THE 1993 REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors, Stockholders, Banks
and Series B Preferred Holders listed therein.]
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WARRANT GROUP HOLDERS:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: ________________________________
Name: __________________________
Title: _________________________
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By: ________________________________
Name: __________________________
Title: _________________________
NORTH ATLANTIC SMALLER COMPANIES
TRUST PLC
By: ________________________________
Name: __________________________
Title: _________________________
[Signature Page to the FOURTH AMENDMENT TO THE 1993 REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors, Stockholders, Banks
and Series B Preferred Holders listed therein.]
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Schedule A
SCHEDULE OF INVESTORS
Warrant Group Holders
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
John Hancock Mutual Life Insurance Company
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
North Atlantic Smaller Companies Trust PLC
c/o J.O. Hambro & Co., Ltd.
30 Queen Anne's Gate
London, England SW1H9AL
Independent Equity Group
Name
Sprout Growth II, L.P.
DLJ Capital Corp.
Canaan Venture Limited Partnership
Canaan Venture Offshore Limited
Partnership
Deepak Kamra
Neill H. Brownstein
Robert H. Buescher
Michael I. Barach
Christopher Gabrieli
Brimstone Island Co., L.P.
William T. Burgin
G. Felda Hardymon
Gabrieli Family Foundation
John K. Rodakis
Gautam A. Prakash
David J. Cowan
Rachel J. Erickson
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Bessemer Venture Partners III, L.P.
C. Samantha Chen
Rodney A. Cohen
Richard R. Davis
Adam P. Godfrey
Barbara M. Henagan
Robert D. Lindsay
Bradford Mills
Thomas F. Ruhm
Ward W. Woods, Jr.
Leo & Nicole Arnaboldi, JTWROS
Perry H. Braun
Norman H. Brown, Jr.
John G. Danhalk
Hoyt L. Davidson
Thompson Dean
Peter K. Deeks
Ralph L. DeGroff, Jr.
Anthony M. DeLuise
David L. Dennis
Thomas S. DePre
Robert E. Diemar
Robert Finzi
Daniel K. Flatley
Mark K. Gormley
Joyce I. Greenberg
Thomas G. Greig, III
James D. Hann & Bonnie J. Hann, JTWROS
Douglas M. Hayes
Stephen J. Ketchum
Richard E. Kroon
Frederick C. Lane
Mark Lanigan
Steven E. Lebow
Brian McLoughlin
Kenneth David Moelis & Julie Lynn Moelis
Trustees Under The Moelis Family Trust
John Joseph Navin, III
Michael R. Nicolais
Peter J. Nolan
Steven G. Puccinelli
Larry E. Reeder
Elan Adiel Schultz
James T. Sington
Jon R. Stone
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Steven F. Strandberg
Kenneth A. Tucker
R. Scott Turricchi
Warren Woo
Kirk B. Wortman
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Schedule B
SCHEDULE OF STOCKHOLDERS
Catherine Bartholomew
Frank Cameron
Tom Cherry
Roberta Claborn
David O. Creasman
Raymond Cruz
Randle Dewees
Edward Diaz
Susan Eaton
Harry Edmiston
Dennis Fandrich
Jon Gill
Jacqueline Gillett
Gary Graff
Nelson Guillory
Peggy Hams
James Jones
Roberta Kean
Jennifer Klein
Melissa Klein
Pollianna Lewis
Van Nguyen
Richard Ollech
Thomas D. Pipkin
Juanita Pitts
Keith Rathbone
Richard Richardson
Vincent Simpson
Grover Smith
Joyce Valdez
Richard C. Davis
Davis Children's Trust (Trustee: Beth J. Pearce)
Jerome Jacobson
William A. Klein
Myron Kunin
Alan Weaver
Theodore J. Wisniewski
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Schedule C
SCHEDULE OF BANKHOLDERS
Wells Fargo Bank, N.A.
Sumitomo Bank of California
BHF - Bank Aktiengesellschaft
Comerica Bank - California
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Schedule D
SCHEDULE OF SERIES B PREFERRED HOLDERS
Sprout Growth II, L.P.
DLJ Capital Corporation
Scorpion Offshore Investment Fund
The & Trust
Chestnut Pacific Ltd. Partners
Standard Global Equity Partners L.P.
Standard Pacific Capital Offshore Fund Ltd.
Common Fund Equity Fund
Malcolm and Emily Fairbairn
Andrea Martin
Nitin T. Mehta
Peak Investment Limited Partnership
Pleiades Investment Partners
Whitman Partners, L.P.
Mahuma, N.V.
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