1
EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of [ ], 1996(1) among Ingram Micro Inc., a Delaware
corporation ("MICRO"), and the Persons listed on the signature pages hereof.
In connection with the closing of the transactions contemplated by the
Exchange Agreement (the "EXCHANGE AGREEMENT") dated as of September 4, 1996
among Ingram Industries Inc. ("INDUSTRIES"), Ingram Entertainment Inc.
("ENTERTAINMENT"), Micro and the Persons listed on the signature pages thereof,
the parties hereto (other than Micro) acquired shares of common stock of Micro;
and
WHEREAS, Micro has agreed to grant the other parties hereto certain
rights to register such shares of common stock as provided herein;
NOW, THEREFORE, in consideration of the mutual promises set forth below
(the mutuality, adequacy and sufficiency of which are hereby acknowledged), the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"BUSINESS DAY" means any day except a Saturday, Sunday or any other day
on which commercial banks in the City of New York are authorized by law to
close.
"COMMISSION" means the Securities and Exchange Commission.
- --------
(1) CLOSING DATE OF THE EXCHANGE.
2
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAMILY STOCKHOLDER" means each of the Family Stockholders set forth on
Annex I hereto.
"GRANTEE" means each Person (other than a Holder) to whom Micro has
granted registration rights.
"HOLDERS" means each of the parties to this Agreement (other than
Micro) and any other Person, who, pursuant to the terms hereof, shall become a
party to or agree to be bound by the terms of this Agreement after the date
hereof.
"INGRAM STOCKHOLDER" means each Family Stockholder, the Qtip Trust, the
E. Bronson Ingram 1995 Charitable Remainder 5% Unitrust, the Martha and Bronson
Ingram Foundation, the E. Bronson Ingram 1994 Charitable Lead Annuity Trust and
the Permitted Transferees of each of such Persons.
"MICRO CLASS A COMMON STOCK" means the Class A Common Stock, par value
$0.01 per share, of Micro.
"PERMITTED TRANSFEREE" means, (A) with respect to any Ingram
Stockholder, (i) any Affiliate of such Ingram Stockholder, (ii) the spouse or
descendants (including adopted Persons and their descendants) of such Ingram
Stockholder, their estates, or trusts for the benefit of such Ingram
Stockholder, Affiliate, spouse or descendants or (iii) any other Holder, (B)
with respect to the Ingram Thrift Plan, (i) any Participant (as defined in the
Employee Benefits Transfer, Assumption and Services Agreement of even date
herewith among Industries, Micro and Entertainment (the "BENEFITS TRANSFER
AGREEMENT")) or (ii) the Micro Thrift Plan or the Entertainment Thrift Plan
(each as defined in the Benefits Transfer Agreement) in connection with any
Transfer of Micro common stock to the Micro Thrift Plan or Entertainment Thrift
Plan, respectively, pursuant to Section 3.01 of the Benefits Transfer Agreement
and (C) with respect to any other Holder, the spouse or descendants (including
adopted Persons and their descendants) of such Holder, their estates, or trusts
or other entities solely for the benefit of such Holder, spouse or descendants;
provided that each such transferee shall have executed and delivered to Micro an
instrument substantially in the form of Exhibit A hereto pursuant to which the
transferee shall have agreed to be bound by the terms of this Agreement.
"PERSON" means an individual, corporation, partnership, limited
liability company, trust, association or any other entity or organization.
"PUBLIC OFFERING" means any public offering of equity securities of
Micro pursuant to an effective registration statement under the Securities Act
other than
B-2
3
pursuant to a registration statement on Form S-4 or Form S-8 or any successor or
similar form.
"QTIP TRUST" means the E. Bronson Ingram Qtip Marital Trust.
"REGISTRABLE SECURITIES" means any shares of Micro Class A Common Stock
now or hereafter acquired by the Holders or by any Permitted Transferee of any
such Holder and any shares of Micro Class A Common Stock issued with respect to
any Registrable Securities including, without limitation, by way of a stock
split or stock dividend, in connection with a recapitalization or a merger,
consolidation or other reorganization, or pursuant to a distribution; provided
that (A) such securities shall cease to be Registrable Securities if and when
(i) a registration statement with respect to the disposition of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of pursuant to such effective registration statement, (ii)
such securities shall have been sold under circumstances in which all of the
applicable conditions of Rule 144 (or any similar provisions then in force) are
met or (iii) such shares shall have ceased to be outstanding securities and (B)
in addition to clause (A) above, securities requested to be registered by
Holders (other than the Ingram Stockholders) pursuant to Section 2.02 shall
cease to be Registrable Securities if and when such securities may be sold
pursuant to Rule 144(k) or otherwise in the public market without being
registered pursuant to the Securities Act; provided further that any such shares
that have ceased to be Registrable Securities cannot thereafter become
Registrable Securities, and securities that are issued or distributed by way of
dividends in respect of such shares of Micro Class A Common Stock that have
ceased to be Registrable Securities shall not be Registrable Securities.
"REGISTRATION EXPENSES" means all (i) registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of a qualified independent underwriter, if
any, counsel in connection therewith and the reasonable fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities), (iii) printing expenses, (iv) internal expenses of Micro
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), (v) fees and disbursements of
counsel for Micro, (vi) customary fees and expenses for independent certified
public accountants retained by Micro (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters), (vii) fees and expenses of
any special experts retained by Micro in connection with such registration,
(viii) fees and expenses of listing the Registrable Securities on a securities
exchange and (ix) customary fees and disbursements (in light of the time and
effort required and the complexity of the matters addressed) of one separate
firm of attorneys (in addition to any local counsel) for the Holders (which
counsel shall be selected by the Qtip Trust, the Initiating Family Stockholders,
or Demanding Holders owning a majority of the Registrable Securities requested
to be included in such
B-3
4
registration by all Demanding Holders (in the case of any registration requested
by the Qtip Trust, the Initiating Family Stockholders or the Demanding Holders,
respectively, pursuant to Section 2.01)), or the Holder selling securities
constituting the largest number of securities included in such registration by
any Holder (in the case of any registration pursuant to Section 2.02) and shall
be reasonably acceptable to Micro; but shall not include any underwriting fees
or discounts or commissions attributable to the sale of Registrable Securities.
"RULE 144" means Rule 144 under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
---- -------
Change of Control Date 2.01
Demanding Holders 2.01
Disadvantageous Condition 2.01
Indemnified Party 2.07
Indemnifying Party 2.07
Initiating Family Stockholders 2.01
Inspectors 2.04
Maximum Offering Size 2.01
Priority Holder 2.02
Priority Securities 2.02
Records 2.04
Section 2.01 Holders 2.01
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Demand Registration.
(a) Registration on Request. If following the initial Public Offering,
the Qtip Trust desires to effect the registration under the Securities Act of
outstanding Registrable Securities, the Qtip Trust may make a written request
that Micro effect the registration under the Securities Act of all or any
portion of the outstanding Registrable Securities of the Qtip Trust and any or
all of the other Ingram Stockholders. If following the initial Public Offering,
the Family Stockholders desire to effect the registration under the Securities
Act of outstanding Registrable Securities, Family Stockholders (the "INITIATING
FAMILY STOCKHOLDERS") holding at least a majority of the outstanding Registrable
Securities held by all Family Stockholders may make a written request that Micro
effect
B-4
5
the registration under the Securities Act of all or any portion of the
outstanding Registrable Securities of such Family Stockholders. If following the
initial Public Offering and on any date (the "CHANGE OF CONTROL DATE") prior to
the second anniversary of the date hereof, the Ingram Stockholders transfer, in
one transaction or a series of related transactions, shares of Micro common
stock and if, after giving effect to such transfer, the Ingram Stockholders
cease to own shares of Micro common stock representing a majority of the number
of votes for the election of directors represented by all of the shares of Micro
common stock outstanding on such date, the Holders (other than the Ingram
Stockholders) of at least a majority of the outstanding Registrable Securities
held by all Holders (other than the Ingram Stockholders) prior to the Change of
Control Date (the "DEMANDING HOLDERS") may, prior to the second anniversary of
the date hereof, make a written request that Micro effect the registration under
the Securities Act of all or any portion of the outstanding Registrable
Securities of such Holders; provided that the Demanding Holders shall not be
entitled to request any such registration if such Demanding Holders were offered
the opportunity to participate in such transfer by the Ingram Stockholders
generally on the same terms and conditions as the Ingram Stockholders. The Qtip
Trust, the Initiating Family Stockholders and the Demanding Holders are
sometimes hereinafter referred to together as the "SECTION 2.01 HOLDER". Any
request for registration made pursuant to this Section 2.01 will specify the
number of shares of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof; provided that Micro shall
not be obligated to (x) effect any shelf registration of Registrable Securities
pursuant to Rule 415 under the Securities Act, (y) register Registrable
Securities (i) representing less than 10% of the outstanding Registrable
Securities or (ii) if the Ingram Stockholders (in the case of any registration
requested by the Qtip Trust), the Initiating Family Stockholders (in the case of
any registration requested by the Initiating Family Stockholders) or the
Demanding Holders (in the case of any registration requested by the Demanding
Holders) hold less than 10% of the outstanding Registrable Securities, unless
the underwriter determines that the net proceeds of any registration of such
Registrable Securities are expected to be at least $25,000,000 or (z) effect any
such registration requested by the Qtip Trust or the Initiating Family
Stockholders, unless the Qtip Trust or the Initiating Family Stockholders have
furnished Micro with an opinion of counsel in form and substance reasonably
satisfactory to Micro to the effect that the requested registration and sale of
Registrable Securities will not adversely affect the tax-free nature of the
transactions contemplated by the Exchange Agreement or the Reorganization
Agreement dated as of September 4, 1996 among Industries, Entertainment and
Micro. In any such opinion counsel may rely, to the extent they may do so in
good faith, upon representations that the trustees of the Qtip Trust and other
Holders had no plan or intention of selling the Micro common stock received in
the transactions at the time the transactions were effected and that the
decision to sell such stock pursuant to exercise of the demand registration
right was based upon considerations which arose subsequent to the transactions.
Micro will promptly give written notice of such requested registration to all
other Holders and each Grantee, and,
B-5
6
subject to Section 2.01(f) hereof, thereupon will use its best efforts to
effect, as promptly as practicable, the registration under the Securities Act
of:
(i) the Registrable Securities which Micro has been so
requested to register by the Section 2.01 Holder; and
(ii) all other Registrable Securities which Micro has been
requested to register by any other Holder pursuant to Section 2.02, by
written request received by Micro within ten Business Days after the
giving of such written notice by Micro, and all other securities which
Micro has been requested to register pursuant to an agreement entered
into with a Grantee;
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided that:
(X) Micro shall not be obligated to file a registration
statement relating to a registration request made by the Qtip Trust
pursuant to this Section 2.01 more than once during any 12-month period
or sooner than three months following the effective date of a Public
Offering in which the Qtip Trust and the other Ingram Stockholders were
entitled to include Registrable Securities, unless the number of
Registrable Securities requested to be included in such Public Offering
by the Qtip Trust and the other Ingram Stockholders was in excess of
125% of the number of such Registrable Securities actually included;
(Y) Except as otherwise specifically provided herein, Micro
shall in no event be obligated to effect more than three registrations
requested by the Qtip Trust pursuant to this Section 2.01, more than
one one registration requested by the Initiating Family Stockholders
pursuant to this Section 2.01, or more than one registration requested
by the Demanding Holders pursuant to this Section 2.01. Except as
otherwise specifically provided herein, none of such regististrations
may be requested after the expiration of 84 months following the
initial Public Offering;
(Z) with respect to any registration statement filed or to be
filed pursuant to this Section 2.01, if the Board of Directors of Micro
shall determine, in its good faith judgment, that to maintain the
effectiveness of such registration statement or to permit such
registration statement to become effective (or, if no registration
statement has yet been filed, to file such a registration statement)
would be significantly disadvantageous to Micro (a "DISADVANTAGEOUS
CONDITION"), Micro may, for the shortest period possible but not more
than a period of 120 days from the date of the Board's determination,
cause such registration statement to be withdrawn and the effectiveness
of such registration
B-6
7
statement to be temporarily suspended or, if no registration statement
has yet been filed, delay the filing of such registration statement.
Promptly after the expiration of the ten Business Day period referred to in
clause (ii) above, Micro shall notify each holder of Registrable Securities to
be included in the registration of the other Holders and Grantees requesting
securities to be included therein and the number of shares requested to be
included therein. The Qtip Trust, or the Initiating Family Stockholders or
Demanding Holders owning a majority of the Registrable Securities requested to
be included in such registration by all Initiating Family Stockholders or
Demanding Holders, respectively may, at any time prior to the effective date of
the registration statement relating to such registration, revoke such request,
without liability (except as set forth below) to any other Holder holding
Registrable Securities requested to be registered pursuant to clause (ii) above
or any Grantee, by providing a written notice to Micro revoking such request;
provided that, if as a result thereof such registration is abandoned, all
Registration Expenses and all other fees and expenses reasonably incurred by
other Holders and Grantees including securities in such registration shall be
borne by the Section 2.01 Holder, on a pro rata basis (in the case of any such
registration requested by the Initiating Family Stockholders or Demanding
Holders) according to the relative number of shares requested to be included in
such registration by each such Initiating Family Stockholder or Demanding
Holder, respectively. If Micro determines to take any action pursuant to clause
(Z) above, Micro shall deliver a notice to the Section 2.01 Holder and to any
holder of securities being sold pursuant to an effective registration statement
to such effect. Upon the receipt of any notice delivered as a result of a
determination by Micro to take action pursuant to clause (Z) above, such Persons
shall forthwith discontinue use of the prospectus contained in such registration
statement and, if so directed by Micro, shall deliver to Micro all copies of the
prospectus delivered to such Persons then covering such securities current at
the time of receipt of such notice (or, if no registration statement has yet
been filed, all drafts of the prospectus delivered to such Persons covering such
securities). If any Disadvantageous Condition shall cease to exist, Micro shall
promptly notify the Section 2.01 Holder (and any other holder whose securities
shall have ceased to be sold pursuant to an effective registration statement as
a result of such Disadvantageous Condition) to such effect. If so requested by
the Section 2.01 Holder, Micro shall, if any registration statement shall have
been withdrawn, at such time as it is possible or, if earlier, at the end of the
120-day period following such withdrawal, file a new registration statement
covering the securities that were covered by such withdrawn registration
statement, and the effectiveness of such registration statement shall be
maintained for such time as may be necessary so that the period of effectiveness
of such new registration statement, when aggregated with the period during which
such withdrawn registration statement was effective, if any, shall be such time
as may be otherwise required by this Agreement.
(b) Registration Statement Form. If, pursuant to a registration request
under this Section 2.01, Micro proposes to effect registration by filing of a
registration statement
B-7
8
on Form S-3 (or any successor or similar short-form registration statement) and
any managing underwriter shall advise Micro in writing that, in its opinion, the
use of another form of registration statement is of material importance to the
success of such proposed offering, then such registration shall be effected on
such other form.
(c) Expenses. Except as specifically provided herein, Micro shall pay
all Registration Expenses in connection with the registrations which are
requested pursuant to this Section 2.01 and all Registration Expenses incurred
by Holders of Registrable Securities as a result of Micro's withdrawal or delay
of any registration pursuant to Section 2.01(a)(ii)(Z). Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder's Registrable Securities pursuant to a
registration statement requested pursuant to this Section 2.01.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 2.01 shall not be deemed to have been effected until
such registration has been effective (and not subject to any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason) for a period of 120 days following the date on
which such registration was declared effective, or, if earlier, the date on
which all Registrable Securities requested to be registered thereunder have been
sold or withdrawn from sale by notice to Micro.
(e) Selection of Underwriters. If any registration pursuant to this
Section 2.01 is in the form of an underwritten Public Offering, Micro shall have
the right to select the managing underwriter or co-managing underwriters for
such Public Offering, which underwriter or underwriters shall be reasonably
acceptable to the Qtip Trust, or the Initiating Family Stockholders or Demanding
Holders owning a majority of Registrable Securities requested to be included in
such registration by all Initiating Family Stockholders or Demanding Holders,
respectively.
(f) Maximum Offering Size. If a registration pursuant to this Section
2.1 involves an underwritten Public Offering and the managing underwriter shall
advise Micro that, in its view, the number or proposed mix of equity securities
requested to be included in such registration (including securities which Micro
requests to be included which are not Registrable Securities) exceeds the
largest number or appropriate mix of securities (which mix shall in any event
give priority to the securities requested to be registered by the Qtip Trust,
the Initiating Family Stockholders or the Demanding Holders, as the case may be,
in the manner set forth below) which can be sold without having a material
adverse effect on such offering (the "MAXIMUM OFFERING SIZE"), including the
price at which such securities can be sold, Micro will reduce the number of
securities requested to be registered until such registration no longer exceeds
the Maximum Offering Size as follows:
B-8
9
(i) first, until such time as the Registrable Securities
requested to be included in such registration by all Persons other than
the Section 2.01 Holder have been reduced to 50% of the number of
Registrable Securities requested to be registered by the Section 2.01
Holder, the Registrable Securities requested to be registered by such
Persons shall be reduced on a pro rata basis among them (excluding the
Section 2.01 Holder) according to the relative number of shares each
such Person has requested to be included in such registration;
(ii) second, until such time as the Registrable Securities
requested to be included in such registration by the Section 2.01
Holder have been reduced by 50%, the Registrable Securities requested
to be included in such registration by the Section 2.01 Holder pursuant
to Section 2.01(a)(i), the Registrable Securities requested to be
included in such registration by any other Holders pursuant to Section
2.01(a)(ii) and the securities requested to be included in such
registration by Grantees pursuant to the terms of their agreements with
Micro shall be reduced on a pro rata basis among them according to the
relative number of shares that each such Person has requested to be
included in such registration;
(iii) third, any remaining securities requested to be
included in such registration by all other Holders pursuant to Section
2.01(a)(ii) and by all Grantees pursuant to the terms of their
agreements with Micro shall be reduced on a pro rata basis among them
according to the relative number of shares each such Person has
requested to be included in such registration; and
(iv) fourth, any remaining Registrable Securities
requested to be included in such registration pursuant to Section
2.01(a)(i) by the Section 2.01 Holder shall be reduced.
Any reduction of shares of Registrable Securities made among the shares of
Registrable Securities requested to be included in any registration pursuant to
Section 2.01(a)(i) by the Qtip Trust shall be made on a basis to be mutually
agreed among the Holders of such Registrable Securities. Any such reduction of
shares of Registrable Securities requested to be included by the Initiating
Family Stockholders or Demanding Holders, respectively, shall be made on a pro
rata basis among such Holders according to the relative number of shares each
such Holder has requested to be included in such registration.
(g) Subsequent Grants. Micro hereby agrees that it will not (i) at any
time after the date hereof, grant to any Person any registration rights that
conflict with, or have priority over, the registration rights granted hereby or
(ii) grant any registration rights with respect to securities held by any Person
which permit such Person to exercise a demand registration right sooner than
three months following the effective date of a Public Offering in which such
Person was entitled to include securities, unless the number of
B-9
10
securities requested to be included in such Public Offering by such Person was
in excess of 125% of the number of such securities actually included.
SECTION 2.02. Incidental ("Piggy-Back") Registration. (a) If, following
the initial Public Offering, Micro at any time proposes to register any of its
equity securities (the "PRIORITY SECURITIES") under the Securities Act (other
than a registration (i) on Form S-8 or S-4 or any successor or similar forms,
(ii) relating to shares of common stock issuable upon exercise of stock options
or in connection with any employee benefit or similar plan of Micro, (iii) in
connection with a direct or indirect acquisition by Micro of another Person or
(iv) pursuant to a shelf registration of securities pursuant to Rule 415 under
the Securities Act), whether for sale for its own account or for the account of
any other Person, in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will each such
time, subject to the provisions of Section 2.02(b), give prompt written notice
to the Holders of record holding Registrable Securities of its intention to do
so and of such Holders' rights under this Section 2.02, at least 30 days prior
to the anticipated filing date of the registration statement relating to such
registration. Any such notice shall offer all such Holders the opportunity to
include in such registration such number of Registrable Securities as each such
Holder may request. Upon the written request of any such Holder made within 20
days after the receipt of notice from Micro (which request shall specify the
number of Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), Micro will use its best efforts to
effect the registration under the Securities Act and any related qualification
or other compliance of all Registrable Securities which Micro has been so
requested to register by the Holders thereof, to the extent required to permit
the disposition (in accordance with such intended methods thereof) of the
Registrable Securities so to be registered; provided that (i) if such
registration involves an underwritten Public Offering, all Holders holding
Registrable Securities requesting to be included in Micro's registration must
sell their Registrable Securities to the underwriters selected by Micro on the
same terms and conditions as apply to the Person for whose account the Priority
Securities are being sold, (ii) if, at any time after giving written notice
pursuant to this Section 2.02 of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, Micro shall determine for any reason not to proceed with
such registration (with respect to all of such securities requested to be
registered), Micro shall give written notice to the Holders holding Registrable
Securities and shall be relieved of its obligation to register any Registrable
Securities in connection with such registration but shall not be relieved from
its obligation to pay the Registration Expenses in connection therewith as
provided in this Section 2.02, without prejudice, however, to the rights of the
Section 2.01 Holder to request that such registration be effected as a
registration under Section 2.01 to the extent so entitled and (iii) no Holder
may request the registration of any Registrable Securities pursuant to this
Section 2.02 after the expiration of 84 months following the initial Public
Offering. If a registration pursuant to this Section 2.02 involves an
underwritten Public Offering, each Holder of Registrable Securities requesting
B-10
11
to be included in such registration may elect, in writing not less than five
Business Days prior to the effective date of the registration statement filed in
connection with such registration, not to register such securities in connection
with such registration. No registration effected under this Section 2.02 shall
relieve Micro of its obligations to effect registrations upon request under
Section 2.01. Micro will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.02,
and each such Holder shall pay underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a registration statement effected pursuant to
this Section 2.02.
(b) Maximum Offering Size. If a registration pursuant to this Section
2.02 involves an underwritten Public Offering and the managing underwriter shall
advise Micro that, in its view, the number or mix of securities of Micro
(including all Registrable Securities) which Micro, the Holders and any other
Persons intend to include in such registration exceeds the Maximum Offering
Size, Micro will reduce the number of securities requested to be registered
until such registration no longer exceeds the Maximum Offering Size as follows:
(i) If the registration was initiated by Micro for the
sale of Priority Securities for its own account:
(1) first, Priority Securities to be sold for the account
of holders of Priority Securities other than Micro,
Registrable Securities requested to be included in such
registration pursuant to Section 2.02(a) by Holders holding
Registrable Securities and securities requested to be included
in such registration by Grantees pursuant to the terms of
their agreements with Micro shall be reduced on a pro rata
basis among them according to the relative number of shares
each such Person has requested to be included in such
registration; and
(2) second, Priority Securities to be sold for Micro's
own account shall be reduced.
(ii) If the registration was initiated at the request of a
holder (a "PRIORITY HOLDER") of Priority Securities to be sold for the
account of such Priority Holder:
(1) first, until such time as the Registrable Securities
requested to be included in such registration by the Priority
Holder have been reduced by 50%, the Priority Securities
requested to be included in such registration by the Priority
Holder and the securities requested to be included in such
registration by the Holders pursuant to Section 2.02 and by
the Grantees pursuant to the terms of their agreements with
Micro shall be reduced on a
B-11
12
pro rata basis among them according to the relative number of
shares each such Person has requested to be included in such
registration;
(2) second, any remaining securities requested to be
included in such registration by the Holders pursuant to
Section 2.02 and by all Grantees pursuant to the terms of
their agreements with Micro shall be reduced on a pro rata
basis among them according to the relative number of shares
each such Person has requested to be included in such
registration; and
(3) third, any remaining Priority Securities requested to
be included in such registration by the Priority Holder shall
be reduced.
SECTION 2.03. Holdback Agreements. Each Holder holding Registrable
Securities agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 or any successor provision under the Securities Act,
of any Registrable Securities, and not to effect any such public sale or
distribution of any other equity security of Micro or of any security
convertible into or exchangeable or exercisable for any equity security of Micro
(in each case, other than (x) as part of any registration pursuant to the terms
hereof of Registrable Securities in connection with a Public Offering or (y) any
sale or distribution of Registrable Securities received upon the exercise of
stock options) during the 14 days prior to, and during (i) the 180-day period
(in the case of an initial Public Offering), (ii) the 60-day period (in the case
of a shelf registered offering) or (iii) otherwise the 120-day period beginning
on, the effective date (or the commencement of a take-down in the case of a
shelf registered offering) of such registration statement (except as part of
such registration or take-down); provided that each such Holder has received
written notice of such registration or take-down at least two Business Days
prior to the anticipated beginning of the 14-day period referred to above.
SECTION 2.04. Registration Procedures. Whenever a Holder requests that
any Registrable Securities be registered pursuant to Section 2.01 or 2.02, Micro
shall, subject to the provisions of such Sections, use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) Micro will as expeditiously as possible prepare and file with the
Commission a registration statement on any form for which Micro then qualifies
or which counsel for Micro shall deem appropriate and which form shall be
available for the sale of the Registrable Securities to be registered thereunder
in accordance with the intended method of distribution thereof, and use its best
efforts to cause such filed registration statement to become and remain
effective for a period of not less than 120 days.
B-12
13
(b) Micro will, if requested, at least three Business Days prior to
filing a registration statement or prospectus or any amendment or supplement
thereto, furnish to each Holder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed (including documents to be incorporated by
reference therein) which documents will be subject to the reasonable review and
comments of such Holders (and their respective attorneys) during such three
Business Day period and Micro will not file any registration statement, any
prospectus or any amendment or supplement thereto (or any such documents
incorporated by reference) containing any statements with respect to such
Holders to which the holders of a majority of the Registrable Securities to be
included in such registration shall reasonably object in writing. Thereafter
Micro will furnish to such Holder and underwriter, if any, such number of copies
of such registration statement, each amendment and supplement thereto (and, if
requested, 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 or underwriter
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder.
(c) After the filing of the registration statement, Micro will
promptly notify each Holder of Registrable Securities covered by such
registration statement of the effectiveness thereof and of any stop order issued
or threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered and promptly
notify such Holder of such lifting or withdrawal of such order.
(d) Micro will use its best efforts (i) to 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 reasonably (in light of such Holder's
intended plan of distribution) requests and (ii) to 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
Micro and 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 Micro will not be
required (x) to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (d), (y) to
subject itself to any material risk of taxation in any such jurisdiction or (z)
to consent to general service of process in any such jurisdiction.
(e) Micro will immediately 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 Securities Act, of the
occurrence of an event requiring the preparation of a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain
B-13
14
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, and Micro will promptly prepare and furnish to each such Holder a
supplement to or an amendment of such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain any untrue statement of 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 in which they were made, not misleading.
(f) Micro will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities.
(g) Micro will make available for inspection by any Holder of
Registrable Securities covered by such registration statement, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any such Holder or
underwriter (collectively, the "INSPECTORS"), all financial and other records,
pertinent corporate documents and properties of Micro (collectively, the
"RECORDS") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause Micro's officers, directors and employees to
make themselves available to, and supply all information reasonably requested
by, any Inspectors in connection with such registration statement. Records which
Micro determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each such Holder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of Micro or its
Affiliates unless and until such is made generally available to the public. Each
such Holder further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to Micro and
allow Micro, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential.
(h) Micro will furnish to each Holder of Registrable Securities
covered by such registration statement and to each underwriter, if any, a signed
counterpart of (i) an opinion or opinions of counsel to Micro addressed to such
Holder and underwriter on which opinion both such Holder and such underwriter
are entitled to rely and (ii) a comfort letter or comfort letters from Micro's
independent public accountants, each in then customary form and covering such
matters of the type then customarily covered by opinions or comfort letters, as
the case may be, as the holders of a majority of the Registrable Securities
included in such registration statement or the managing underwriter therefor
reasonably requests.
B-14
15
(i) Micro will otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(j) Micro will use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange, if any, on which similar
securities issued by Micro are then listed.
(k) Micro will use its best efforts to prepare and file with the
Commission promptly upon the request of any such Holder, any amendments or
supplements to such registration statement or prospectus which, in the
reasonable opinion of counsel for such Holders, is required under the Securities
Act or the rules and regulations thereunder in connection with the distribution
of the Registrable Securities by such Holders.
Micro may require each Holder of Registrable Securities included in
such registration statement promptly to furnish in writing to Micro such
information regarding the distribution of the Registrable Securities as Micro
may from time to time reasonably request and such other information with respect
to such Holder as may be legally required in connection with such registration.
Each Holder agrees that, upon receipt of any notice from Micro of the
happening of any event of the kind described in Section 2.04(e), such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 2.04(e), and, if so directed by Micro, such Holder will deliver to Micro
all copies in its possession of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event Micro
shall give such notice, Micro shall extend the period during which the
effectiveness of such registration statement shall be maintained (including the
period referred to in Section 2.04(a) hereof) by the number of days during the
period from and including the date of the giving of notice pursuant to Section
2.04(e) to the date when Micro shall make available to such Holder a prospectus
supplemented or amended to conform with the requirements of Section 2.04(e).
Micro shall not be liable for the failure of any such registration to
become effective provided that Micro complies with its obligations hereunder.
SECTION 2.05. Indemnification by Micro. Micro agrees to indemnify and
hold harmless to the fullest extent permitted by law each Holder of Registrable
Securities covered by a registration statement, its officers, directors and
agents, and each Person, if
B-15
16
any, who controls such Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if Micro shall have furnished any amendments or supplements
thereto) or any preliminary, summary or final prospectus or any amendments or
supplements thereto, or caused by 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 and Micro will reimburse such Holders for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending such loss, claim, damage, liability or expense except
insofar as such losses, claims, damages, liabilities or expenses are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information furnished in writing to Micro by such Holder or on such
Holder's behalf in either such case expressly for use therein; provided, that
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, or in any prospectus, as the case
may be, the indemnity agreement contained in this paragraph shall not apply to
the extent that any such loss, claim, damage, liability or expense results from
the fact that a current copy of the prospectus (or, in the case of a prospectus,
the prospectus as amended or supplemented) was not sent or given to the Person
asserting any such loss, claim, damage, liability or expense at or prior to the
written confirmation of the sale of the Registrable Securities concerned to such
Person if it is determined that Micro has provided such prospectus and it was
the responsibility of such Holder to provide such Person with a current copy of
the prospectus (or such amended or supplemented prospectus, as the case may be)
and such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to such
loss, claim, damage, liability or expense. Micro also agrees to indemnify any
underwriters of the Registrable Securities, their officers and directors and
each Person who controls such underwriters on substantially the same basis as
that of the indemnification of the Holders provided in this Section 2.05.
SECTION 2.06. Indemnification by Holders of Registrable Securities.
Each Holder of Registrable Securities included in any registration statement
agrees to indemnify and hold harmless to the fullest extent permitted by law
(including without limitation reimbursement of Micro for any legal or any other
expenses reasonably incurred by it in investigating or defending such loss,
claim, damage, liability or expense) Micro, its officers, directors and agents
and each Person, if any, who controls Micro within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from Micro to such Holder, but only (i) with respect to
information furnished in writing by such Holder or on such Holder's behalf in
either case expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary, summary or final prospectus or any amendments or supplements
thereto or (ii) to the
B-16
17
extent that any loss, claim, damage, liability or expense described in Section
2.05 results from the fact that a current copy of the prospectus (or, in the
case of a prospectus, the prospectus as amended or supplemented) was not sent or
given to the Person asserting any such loss, claim, damage, liability or expense
at or prior to the written confirmation of the sale of the Registrable
Securities concerned to such Person if it is determined that it was the
responsibility of such Holder to provide such Person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) and
such current copy of the prospectus (or such amended or supplemented prospectus,
as the case may be) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. Each such Holder also agrees to indemnify and hold
harmless underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters on substantially the
same basis as that of the indemnification of Micro provided in this Section
2.06.
SECTION 2.07. 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
Section 2.05 or 2.06, such Person (an "INDEMNIFIED PARTY") shall promptly notify
the Person against whom such indemnity may be sought (the "INDEMNIFYING PARTY")
in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any 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
Indemnified Party has been advised in writing by its counsel that 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 connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Party who had the largest number of Registrable
Securities included in such registration. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written consent
which consent shall not be unreasonably withheld, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) 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 arising out of such proceeding.
B-17
18
SECTION 2.08. Contribution. If the indemnification provided for
hereunder is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such 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,
claims, damages or liabilities (i) as between Micro and the Holders on the one
hand and the underwriters on the other, in such proportion as is appropriate to
reflect the relative benefits received by Micro and the Holders on the one hand
and the underwriters on the other from the offering of the securities, or if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of Micro and the Holders on the one hand and of the underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between Micro on the one hand and each Holder of
Registrable Securities covered by a registration statement on the other, in such
proportion as is appropriate to reflect the relative fault of Micro and of each
such Holder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by Micro
and the Holders on the one hand and the underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by Micro and the Holders bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the table
on the cover page of the prospectus. The relative fault of Micro and the Holders
on the one hand and of the underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Micro and the Holders or by the underwriters.
The relative fault of Micro on the one hand and of each such Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Micro and the Holders of Registrable Securities agree that it would not
be just and equitable if contribution pursuant to this Section 2.08 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 2.08, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were
B-18
19
offered to the public exceeds the amount of any damages which such underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section, no Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the securities of such Holder were
offered to the public exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each Holder's obligation to contribute pursuant to
this Section 2.08 is several in the proportion that the proceeds of the offering
received by such Holder bears to the total proceeds of the offering received by
all of the Holders and not joint.
SECTION 2.09. Participation in Public Offering. No Person may
participate in any underwritten Public Offering hereunder unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreement, custody agreements and other
documents reasonably required under the terms of such underwriting arrangements
and these Registration Rights.
SECTION 2.10. Rule 144 Reporting. With a view to making available to
the Holders the benefits of certain rules and regulations of the Commission
which may permit the sale of securities to the public without registration,
Micro agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 (including paragraph (c)(2) of such Rule);
(b) use its best efforts to file with the Commission in a timely
manner reports and other documents, if any, required of Micro under the
Securities Act and the Exchange Act; and
(c) furnish to the Holders forthwith upon request a written statement
by Micro as to its compliance with the reporting requirements of Rule 144, and
of the Securities Act and the Exchange Act (if applicable), a copy of the most
recent annual or quarterly report of Micro filed with the Commission, if any,
and such other reports and documents of Micro and other information in the
possession of or reasonably obtainable by Micro as the Holders may reasonably
request in availing themselves of any rule or regulation of the Commission
allowing the Holders to sell securities without registration.
B-19
20
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.
SECTION 3.02. Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto shall
be in writing (including telecopier or similar writing) and shall be given to
such party at its address set forth on the signature pages hereof, or to such
other address as the party to whom notice is to be given may provide in a
written notice to the party giving such notice, a copy of which written notice
shall be on file with the Secretary of Micro. If notice is given pursuant to
this Section of a permitted successor or assign of a party to this Agreement,
then notice shall thereafter be given as set forth above to such successor or
assign of such party to this Agreement. Each such notice, request or other
communication shall be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified on the signature pages hereof and
electronic or oral confirmation of receipt is received, (ii) if given by mail,
at the close of business on the third Business Day after such communication is
deposited in the mails with first class postage prepaid addressed as aforesaid
or (iii) if given by any other means, when delivered at the address specified in
this Section 3.02.
SECTION 3.03. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the conflicts of law rules of such state.
SECTION 3.04. Successors, Assigns, Transferees. Neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by Micro or any Holder, except to a Permitted
Transferee of any such Holder as provided pursuant to the terms hereof. This
Agreement is binding upon the parties to this Agreement and their respective
legal representatives, heirs, devisees, legatees, beneficiaries and successors
and permitted assigns and inures to the benefit of the parties to this Agreement
and their respective permitted legal representatives, heirs, devisees, legatees,
beneficiaries and other permitted successors and assigns, if any. Neither this
Agreement nor any provision hereof shall be construed so as to confer any right
or benefit upon any Person other than the parties to this Agreement, those who
agree to be bound hereby and their respective permitted legal representatives,
heirs, devisees, legatees, beneficiaries and other permitted successors and
assigns. References to a party to this Agreement are also references to any
permitted successor or assign of such party and, when appropriate to effect the
binding nature of this Agreement for the benefit of another party, any other
successor or assign of a party.
B-20
21
SECTION 3.05. Amendments; Waivers. (a) No failure or delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof may be
waived except by an instrument in writing signed by (i) each Ingram Stockholder,
(ii) Micro, (iii) the Ingram Thrift Plan; provided that the Ingram Thrift Plan
is materially adversely affected by such waiver, and (iv) Holders of a majority
of the Registrable Securities which are materially adversely affected by such
waiver.
(c) Neither this Agreement nor any term or provision hereof may be
amended except by an instrument in writing signed by (i) each Ingram
Stockholder, (ii) Micro, (iii) the Ingram Thrift Plan; provided that the Ingram
Thrift Plan is materially adversely affected by such amendment, and (iv) Holders
of a majority of the Registrable Securities (excluding those held by the Ingram
Stockholders and the Ingram Thrift Plan) which are materially adversely affected
by such amendment.
(d) Micro shall deliver prompt written notice to each other party
hereto of any amendment or waiver to this Agreement approved pursuant to this
Section.
SECTION 3.06. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 3.07. Consent to Jurisdiction. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of any Tennessee State Court or United
States Federal Court sitting in the Middle District of Tennessee over any suit,
action or proceeding arising out of or relating to this Agreement. Each party
hereto (other than Micro) hereby irrevocably appoints The Corporation Trust
Company as its authorized agent to accept and acknowledge on its behalf service
of any and all process which may be served in any such suit, action or
proceeding in any such court and represents and warrants that such agent has
accepted such appointment. Each party hereto consents to process being served in
any such suit, action or proceeding by serving a copy thereof upon the agent for
service of process, provided that to the extent lawful and possible, written
notice of such service shall also be mailed to such party. Each party hereto
waives any right it may have to assert the doctrine of forum non conveniens or
to object to venue to the extent any proceeding is brought in accordance with
this Section 3.07. Nothing in this paragraph shall affect or limit any right to
serve process in any manner permitted by law, to bring proceedings in the courts
of any jurisdiction or to enforce in any lawful manner a judgment obtained in
one jurisdiction in any other jurisdiction.
B-21
22
SECTION 3.08. Community Property. If such Holder's Registrable
Securities constitute community property, this Agreement has been executed and
delivered by such Holder's spouse, who shall be bound hereby.
B-22
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INGRAM MICRO INC.
By______________________________________
Name:
Title:
1600 Saint Andrew Place
Santa Ana, CA 92705
Telecopy: 714-566-7900
B-23
24
HOLDERS E. BRONSON INGRAM
Q-TIP MARITAL TRUST
By MARTHA R. INGRAM, ORRIN H. INGRAM,
JOHN R. INGRAM, DAVID B. INGRAM AND
ROBIN I. PATTON, as Co-Trustees
By______________________________________
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By______________________________________
Name: Orrin H. Ingram
Title: Co-Trustee
Address: 1475 Moran Road
Franklin, TN 37069
By______________________________________
Name: John R. Ingram
Title: Co-Trustee
Address: 311 Jackson Boulevard
Nashville, TN 37205
By______________________________________
Name: David B. Ingram
Title: Co-Trustee
Address: 4417 Tyne Boulevard
Nashville, TN 37215
By______________________________________
Name: Robin I. Patton
Title: Co-Trustee
Address: 1600 Chickering Road
Nashville, TN 37215
B-24
25
E. BRONSON INGRAM 1995 CHARITABLE
REMAINDER 5% UNITRUST
By MARTHA R. INGRAM, as Trustee
By______________________________________
Name: Martha R. Ingram
Title: Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
MARTHA AND BRONSON INGRAM
FOUNDATION
By______________________________________
Name:
Title:
Address: c/o Ingram Industries Inc.
4440 Harding Road
Nashville, TN 37205
(615) 298-8200
E. BRONSON INGRAM 1994
CHARITABLE LEAD ANNUITY TRUST
By ORRIN H. INGRAM, JOHN R. INGRAM,
DAVID B. INGRAM, AND ROBIN B.
INGRAM PATTON, as Co-Trustees
By______________________________________
Name: Orrin H. Ingram
Title: Co-Trustee
Address: 1475 Moran Road
Franklin, TN 37069
B-25
26
By______________________________________
Name: John R. Ingram
Title: Co-Trustee
Address: 311 Jackson Boulevard
Nashville, TN 37205
By______________________________________
Name: David B. Ingram
Title: Co-Trustee
Address: 4417 Tyne Boulevard
Nashville, TN 37215
By______________________________________
Name: Robin B. Ingram Patton
Title: Co-Trustee
Address: 1600 Chickering Road
Nashville, TN 37215
INGRAM THRIFT PLAN
By W.M. HEAD, R.E. CLAVERIE AND
T.H. LUNN, as Co-Trustees
By______________________________________
Name: William M. Head
Title: Co-Trustee
Address: 1229 Nichol Lane
Nashville, TN 37205
By______________________________________
Name: R.E. Claverie
Title: Co-Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
B-26
27
By______________________________________
Name: T.H. Lunn
Title: Co-Trustee
Address: 509 Sugartree Lane
Franklin, TN 37064
________________________________________
Linwood A. Lacy, Jr.
2304 Cranborne Road
Midlothian, VA 23113
LINWOOD A. LACY, JR.
1996 IRREVOCABLE TRUST DATED
MARCH 24, 1996
By NATIONSBANK, N.A, as Trustee
By______________________________________
Name:
Title:
Address: NationsBank, N.A.
Attention: Phil Rudder,
Vice President
12th and Main, 12th Floor
Richmond, VA 23261
_____________________________ ________________________________________
Spouse David W. Rutledge
34 Deerwood East
Irvine, CA 92714
_____________________________ ________________________________________
Spouse Ronald K. Hardaway
2 Moss Glen
Irvine, CA 92715
B-27
28
________________________________________
Victoria L. Cotten
8 Medici
Aliso Viejo, CA 92656
________________________________________
David B. Ingram
4417 Tyne Boulevard
Nashville, TN 37215
DAVID AND SARAH INGRAM FAMILY 1996
GENERATION SKIPPING TRUST
By THOMAS H. LUNN, as Trustee
By______________________________________
Name: Thomas H. Lunn
Title: 509 Sugartree Lane
Address: Franklin, TN 37064
TRUST FOR THE BENEFIT OF DAVID BRONSON
INGRAM, DATED OCTOBER 27, 1967
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, successor trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-28
29
TRUST FOR THE BENEFIT OF DAVID BRONSON
INGRAM, DATED JUNE 14, 1968
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
TRUST FOR THE BENEFIT OF DAVID B.
INGRAM, DATED DECEMBER 22, 1975
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-29
30
DAVID B. INGRAM IRREVOCABLE TRUST
DATED AUGUST 16, 1988
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
1994 DAVID BRONSON INGRAM TRUST
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
________________________________________
Thomas H. Lunn
509 Sugartree Lane
Franklin, TN 37064
LUNN FAMILY PARTNERS, L.P.
By .
as General Partner
By______________________________________
Name:
Title:
Address: 509 Sugartree Lane
Franklin, TN 37064
B-30
31
________________________________________
Philip M. Pfeffer
836 Treemont Court
Nashville, TN 37220
PFEFFER FAMILY PARTNERS, L.P.
By
as General Partner
By______________________________________
Name:
Title:
Address: 836 Treemont Court
Nashville, TN 37220
TRUST AGREEMENT OF JUNE 11, 1987
BETWEEN BRONSON AND MARTHA INGRAM,
GRANTORS, AND EDWARD G. NELSON,
TRUSTEE FOR THE BENEFIT OF JOHN-LINDELL
PHILIP PFEFFER
By EDWARD G. NELSON, as Trustee
By______________________________________
Name: Edward G. Nelson
Title: Trustee
Address: Nelson Capital Corp.
3401 West End Avenue
Nashville, TN 37203
________________________________________
John-Lindell Philip Pfeffer
Place Constantin Meunier F B.2
1180 Brussels Belgium
B-31
32
TRUST AGREEMENT OF JUNE 11, 1987
BETWEEN BRONSON AND MARTHA INGRAM,
GRANTORS, AND EDWARD G. NELSON,
TRUSTEE FOR THE BENEFIT OF DAVID
MAURICE PFEFFER
By EDWARD G. NELSON, as Trustee
By______________________________________
Name: Edward G. Nelson
Title: Trustee
Address: Nelson Capital Corp.
3401 West End Avenue
Nashville, TN 37203
TRUST AGREEMENT OF JUNE 11, 1987
BETWEEN BRONSON AND MARTHA INGRAM,
GRANTORS, AND EDWARD G. NELSON,
TRUSTEE FOR THE BENEFIT OF JAMES
HOWARD PFEFFER
By EDWARD G. NELSON, as Trustee
By______________________________________
Name: Edward G. Nelson
Title: Trustee
Address: Nelson Capital Corp.
3401 West End Avenue
Nashville, TN 37203
________________________________________
Roy E. Claverie
6107 Hickory Valley Road
Nashville, TN 37205
B-32
33
ROY E. CLAVERIE, JR.
1996 VESTED TRUST
By WILLIAM S. JONES, as Trustee
By______________________________________
Name: William S. Jones
Title: Trustee
Address: 6015 Wellesley Way
Brentwood, TN 37027
ROY E. CLAVERIE, JR. 1996
GENERATION SKIPPING TRUST
By WILLIAM S. JONES, as Trustee
By______________________________________
Name: William S. Jones
Title: Trustee
Address: 6015 Wellesley Way
Brentwood, TN 37027
KEITH J. CLAVERIE, JR.
1996 VESTED TRUST
By WILLIAM S. JONES, as Trustee
By______________________________________
Name: William S. Jones
Title: Trustee
Address: 6015 Wellesley Way
Brentwood, TN 37027
B-33
34
KEITH J. CLAVERIE, JR.
1996 GENERATION SKIPPING TRUST
By WILLIAM S. JONES, as Trustee
By______________________________________
Name: William S. Jones
Title: Trustee
Address: 6015 Wellesley Way
Brentwood, TN 37027
TRUST AGREEMENT OF JUNE 11, 1987
BETWEEN BRONSON AND MARTHA
INGRAM, GRANTORS, AND EDWARD G.
NELSON TRUSTEE FOR THE BENEFIT OF
KEITH JOSEPH CLAVERIE
By EDWARD G. NELSON, as Trustee
By______________________________________
Name: Edward G. Nelson
Title: Trustee
Address: Nelson Capital Corp.
3401 West End Avenue
Nashville, TN 37203
B-34
35
TRUST AGREEMENT OF JUNE 11, 1987
BETWEEN BRONSON AND MARTHA
INGRAM, GRANTORS, AND EDWARD G.
NELSON, TRUSTEE FOR THE BENEFIT OF
ROY EDWARD CLAVERIE, JR.
By EDWARD G. NELSON, as Trustee
By______________________________________
Name: Edward G. Nelson
Title: Trustee
Address: Nelson Capital Corp.
3401 West End Avenue
Nashville, TN 37203
________________________________________
Roy E. Claverie, Jr.
6107 Hickory Valley Road
Nashville, TN 37205
________________________________________
David F. Sampsell
420 Welshwood #47
Nashville, TN 37211
________________________________________
Steven J. Mason
1318 Chickering Road
Nashville, TN 37215
B-35
36
THE DAVID C. MASON
1996 GENERATION SKIPPING TRUST
By LINDA L. MASON AND MICHAEL G.
MASON, as Co-Trustees
By______________________________________
Name: Linda L. Mason
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
By______________________________________
Name: Michael G. Mason
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
THE MICHAEL G. MASON
1996 GENERATION SKIPPING TRUST
By LINDA L. MASON AND STEVEN J.
MASON, JR., as Co-Trustees
By______________________________________
Name: Linda L. Mason
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
By______________________________________
Name: Steven J. Mason, Jr.
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
B-36
37
THE STEVEN J. MASON, JR.
1996 GENERATION SKIPPING TRUST
By LINDA L. MASON AND DAVID C.
MASON, as Co-Trustees
By______________________________________
Name: Linda L. Mason
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
By______________________________________
Name: David C. Mason
Title: Co-Trustee
Address: 1318 Chickering Road
Nashville, TN 37215
________________________________________
Neil N. Diehl
6 Castle Rising
Nashville, TN 37215
________________________________________
W. Michael Head
1229 Nichol Lane
Nashville, TN 37205
________________________________________
David L. Hettinger
5010 Woodland Hills Drive
Nashville, TN 37211
________________________________________
Lavonna G. Russell
9549 Butler Drive
Brentwood, TN 37027
B-37
38
________________________________________
Michael F. Lovett
1013 Beech Grove Road
Brentwood, TN 37027
________________________________________
William S. Jones
6015 Wellesley Way
Brentwood, TN 37027
________________________________________
James F. Neal
c/o Neal & Harwell
2000 One Nashville Place
150 Fourth Avenue, North
Nashville, TN 37219
________________________________________
Martha R. Ingram
120 Hillwood Drive
Nashville, TN 37215
________________________________________
Orrin H. Ingram, II
1475 Moran Road
Franklin, TN 37069
B-38
39
TRUST FOR THE BENEFIT OF ORRIN HENRY
INGRAM, II, DATED OCTOBER 27, 1967
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
TRUST FOR THE BENEFIT OF ORRIN HENRY
INGRAM, II, DATED JUNE 14, 1968
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-39
40
TRUST FOR THE BENEFIT OF ORRIN H.
INGRAM, II, DATED DECEMBER 22, 1975
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
ORRIN H. INGRAM IRREVOCABLE
TRUST DATED AUGUST 16, 1988
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
1994 ORRIN HENRY INGRAM TRUST
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
B-40
41
________________________________________
John R. Ingram
311 Jackson Boulevard
Nashville, TN 37205
THE JOHN AND STEPHANIE INGRAM
FAMILY 1996 GENERATION SKIPPING TRUST
By WILLIAM S. JONES, as Trustee
By______________________________________
Name: William S. Jones
Title: Trustee
Address: 6015 Wellesley Way
Brentwood, TN 37027
TRUST FOR THE BENEFIT OF JOHN
RIVERS INGRAM, DATED OCTOBER 27, 1967
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-41
42
TRUST FOR THE BENEFIT OF JOHN RIVERS INGRAM,
DATED JUNE 14, 1968
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By___________________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
TRUST FOR THE BENEFIT OF JOHN R.
INGRAM, DATED DECEMBER 22, 1975
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By___________________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-42
43
JOHN R. INGRAM IRREVOCABLE TRUST
DATED AUGUST 16, 1988
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
1994 JOHN RIVERS INGRAM TRUST
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
________________________________________
Robin B. Ingram Patton
1600 Chickering Road
Nashville, TN 37215
B-43
44
TRUST FOR THE BENEFIT OF ROBIN
INGRAM, DATED OCTOBER 27, 1967
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
TRUST FOR THE BENEFIT OF ROBIN
BIGELOW INGRAM, DATED JUNE 14, 1968
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
B-44
45
TRUST FOR THE BENEFIT OF ROBIN B.
INGRAM, DATED DECEMBER 22, 1975
By TRUSTMAN, AS NOMINEE FOR TRUST
COMPANY BANK, as Successor Trustee
By______________________________________
Name:
Title:
Address: Trust Company Bank
Trust Company of Georgia
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
ROBIN B. INGRAM IRREVOCABLE
TRUST DATED AUGUST 16, 1988
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
1994 ROBIN INGRAM PATTON TRUST
By ROY E. CLAVERIE, as Trustee
By______________________________________
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
B-45
46
________________________________________
Panjah B. Shah
1201 Parker Place
Brentwood, TN 37207-7002
________________________________________
S. Ray Taylor
3280 Central Valley Road
Murfreesboro, TN 37219
________________________________________
Jacob S. Sherman
215 Lauderdale Road
Nashville, TN 37205
________________________________________
Susan F. Flaster
144 September Drive
La Vergne, TN 37086
B-46
47
EXHIBIT A
FORM OF AGREEMENT TO BE BOUND
To the Parties to the Registration
Rights Agreement dated as of
[ ], 1996
Dear Sirs:
Reference is made to the Registration Rights Agreement (the
"AGREEMENT") dated as of [ ], 1996 among Ingram Micro Inc. and the Persons
listed on the signature pages thereof.
In consideration of the transfer of Registrable Securities (as defined
in the Agreement) to the undersigned, the undersigned hereby confirms and agrees
to be bound by all of the provisions of the Agreement.
This letter shall be construed and enforced in accordance with the laws
of the State of Delaware without regard to the conflicts of law rules of such
state.
Very truly yours,
Permitted Transferee
48
ANNEX I
FAMILY STOCKHOLDERS
David B. Ingram
David and Sarah Ingram Family
1996 Generation Skipping Trust
Trust for the Benefit of David Bronson Ingram,
Dated October 27,1967
Trust for the Benefit of David Bronson Ingram,
Dated June 14, 1968
Trust for the Benefit of David B. Ingram,
Dated December 22, 1975
David B. Ingram Irrevocable Trust
Dated August 16, 1988
1994 David Bronson Ingram Trust
Martha R. Ingram
Orrin H. Ingram, II
Trust for the Benefit of Orrin Henry Ingram, II,
Dated October 27, 1967
Trust for the Benefit of Orrin Henry Ingram, II,
Dated June 14, 1968
Trust for the Benefit of Orrin H. Ingram, II,
Dated December 22, 1975
Orrin H. Ingram Irrevocable Trust
Dated August 16, 1988
1994 Orrin Henry Ingram Trust
49
John R. Ingram
John and Stephanie Ingram Family
1996 Generation Skipping Trust
Trust for the Benefit of John Rivers Ingram,
Dated October 27, 1967
Trust for the Benefit of John Rivers Ingram,
Dated June 14, 1968
Trust for the Benefit of John R. Ingram,
Dated December 22, 1975
John R. Ingram Irrevocable Trust
Dated August 16, 1988
1994 John Rivers Ingram Trust
Robin B. Ingram Patton
Trust for the Benefit of Robin Ingram,
Dated October 27, 1967
Trust for the Benefit of Robin Bigelow Ingram,
Dated June 14, 1968
Trust for the Benefit of Robin B. Ingram,
Dated December 22, 1975
Robin B. Ingram Irrevocable Trust
Dated August 16, 1988
1994 Robin Ingram Patton Trust
B-2