EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of the 21st day of May 1997 by and between UNIDIGITAL INC., a
Delaware corporation (the "Company"), and ________________________ (the
"Holder").
R E C I T A L S
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A. The Holder and the Company are parties to that certain Promissory
Note of even date herewith (the "Promissory Note") pursuant to which the Holder
has agreed to extend a loan to the Company.
B. In partial consideration of the extension of the loan by the Holder
to the Company pursuant to the Note, the Company has issued to the Holder a
five-year warrant to purchase shares of common stock of the Company, par value
$0.01 per share ("Common Stock") on the terms and conditions set forth in that
certain Warrant between the Company and the Holder of even date herewith (the
"Warrant").
C. The Company desires to grant to the Holder the registration rights
set forth herein with respect to the shares of Common Stock for which may be
issued to the Holder pursuant to the Warrant.
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "Registrable Securities" means:
any shares of Common Stock of the Company issued or issuable to the Holder
pursuant to the Warrant; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Securities Act of 1933, as amended (the "Securities Act") and disposed
of pursuant thereto, (ii) registration under the Securities Act is no longer
required for the immediate public distribution of such security or (iii) it has
ceased to be outstanding. The term "Registrable Securities" means any and/or all
of the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such
adjustment shall be made in the definition of "Registrable Security"
as is appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to the Agreement.
(c) SEC. The term "SEC" or "Commission" means the U.S. Securities and
Exchange Commission.
1.2 Registrations.
(a) Piggyback Registration Rights. The Company shall notify the
Holder in writing at least twenty (20) days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering
of securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to a merger, an acquisition or
pursuant to Form S-8 or successor form, collectively the "Excluded
Registrations") and will afford the Holder an opportunity to include in such
registration statement all or any part of the Registrable Securities then held
by the Holder. If the Holder desires to include in any such registration
statement all or any part of the Registrable Securities held by the Holder, it
shall, within twenty (20) days after receipt of the above-described notice from
the Company, so notify the Company in writing, and in such notice shall inform
the Company of the number of Registrable Securities the Holder wishes to include
in such registration statement. If the Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, the Holder shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities (other than with respect to Excluded Registrations), all upon the
terms and conditions set forth herein.
(b) Underwriting. If a registration statement under which the Company
gives notice under Section 1.2(a) is for an underwritten offering, then the
Company shall so advise the Holder in writing. In such event, the right of the
Holder to have its Registrable Securities included in a registration pursuant to
this Section 1.2(b) shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of the Holder's Registrable Securities in the
underwriting to the extent provided herein. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude shares
(including Registrable Securities) from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first, to the Company in full, and second, to
the Holder and to any other security holders of the Company whose securities are
being offered for sale pursuant to such registration statement or whose
securities are required to be included in such registration statement pursuant
to registration rights granted to such security holders by the Company
(collectively, the "Other Holders") pro-rata based on the total number of shares
of Common Stock originally requested to be sold by the Holder and
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the Other Holders pursuant to such registration statement. If the
Holder disapproves of the terms of any such underwriting, the Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration. The
Holder hereby agrees that, in connection with any underwritten offering by the
Company, if requested by the managing underwriter, it will not sell any of its
Registrable Securities pursuant to a registration statement in which it is not
included pursuant to this Section 1.2, for a period of up to six months from the
effective date of any such registration statement, without the prior written
consent of the managing underwriter, if any, of the public offering to which
such registration statement may relate. Further, in connection with any
underwritten public offering of Common Stock by the Company, the Holder shall
enter into an underwriting agreement in customary form with the managing
underwriter or underwriters selected for such underwriting.
(c) Expenses. All expenses incurred in connection with a registration
pursuant to Section 1.2(a) (excluding underwriters' and brokers' discounts and
commissions), including, without limitation all federal and "blue sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and reasonable fees and disbursements
of counsel for the Holder, shall be borne by the Company. The Holder shall bear
its proportionate share (based on the total number of shares sold in such
registration) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such registration.
1.3 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holder,
keep such registration statement effective for up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holder such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by the
Holder that are included in such registration.
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holder,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering.
(f) Notify the Holder at any time when a prospectus relating to such
registration statement is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Furnish, at the request of the Holder, on the date that its
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to the Holder,
addressed to the underwriters, if any, and to the Holder, and (ii) a "comfort"
letter dated as of such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering
and reasonably satisfactory to the Holder, addressed to the underwriters, if
any, and to the Holder requesting registration of Registrable Securities.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 1.2 that the
Holder shall furnish to the Company such information regarding the Holder, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Registrable Securities.
1.5 Delay of Registration. The Holder shall not have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
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1.6 Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 1.2:
(a) By the Company. To the extent permitted by law, the Company shall
indemnify and hold harmless the Holder or any underwriter (as defined in the
Securities Act) for the Holder and each person, if any, who controls the Holder
or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act") (collectively, "Indemnitees"),
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the l934 Act or other federal
or state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make
the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of
the Securities Act, the 1934 Act, any federal or state securities
law or any rule or regulation promulgated under the Securities
Act, the 1934 Act or any federal or state securities law in
connection with the offering covered by such registration
statement;
and the Company will reimburse each of the Indemnitees for any legal or other
expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.6(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with any information furnished
expressly for use in connection with such registration by any Indemnitee,
including without limitation, any information furnished by the Holder to the
Company pursuant to Section 1.4 hereof.
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(b) By the Holder. To the extent permitted by law, the Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, and each person, if any,
who controls the Company within the meaning of the Securities Act or the 1934
Act (collectively, "Company Indemnitees"), against any losses, claims, damages
or liabilities (joint or several) to which the Company or any such Company
Indemnitee may become subject under the Securities Act, the 1934 Act or other
federal or state law, but only, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by the Holder, and known by the Holder to be furnished, expressly for
use in connection with such registration, including without limitation any
information furnished by the Holder to the Company pursuant to Section 1.4
hereof; and the Holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such Company Indemnitee as incurred in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
subsection 1.6(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder which consent shall not be unreasonably withheld; and
provided further, that the total amounts payable in indemnity by the Holder
under this Section 1.6(b) in respect of any Violation shall not exceed the net
proceeds received by the Holder in the registered offering out of which such
Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this
Section 1.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.6, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.6.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity
agreements of the Company and the Holder are subject to the condition that,
insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the
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amended prospectus on file with the SEC at the time the registration
statement in question becomes effective or the amended prospectus filed with the
SEC pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any person if a copy of the Final
Prospectus was furnished to the indemnified party and was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
(e) Survival. The obligations of the Company and the Holder under
this Section 1.6 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
1.7 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, the
Company agrees to make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, and to use its best
efforts to file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. The registration rights granted to the Holder shall not
be assignable to any subsequent holder of the Registrable Securities.
2.2 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holder.
2.3 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed to
have been delivered when delivered personally (including by means of telex,
telecopier or telefax systems), or the day following delivery to a reputable
overnight courier service which guarantees delivery within 24 hours, charges
prepaid (or upon the date mailed, if sent certified mail, postage prepaid,
return receipt requested, and delivery is refused or returned as undeliverable)
to the parties to this Agreement as follows:
(a) If to the Company: Unidigital Inc.
20 West 20th Street
New York, New York 10011
Attn: William E. Dye, President
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with a copy to: David J. Sorin, Esquire
Buchanan Ingersoll
500 College Road East
Princeton Forrestal Center
Princeton, NJ 08540
(b) If to the Holder:
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with a copy to:
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or at such other address as any party may designate by giving ten (10) days
advance written notice to the other party.
2.4 Entire Agreement. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
2.5 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of New York
without regard to any law relating to conflict of laws and choice of law.
2.6 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
2.7 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
2.8 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
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2.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
2.10 Costs And Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY: THE HOLDER:
UNIDIGITAL INC. [ ]
By:________________________ By:_________________________
Title:_____________________ Title:______________________
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SCHEDULE OF HOLDERS
Principal Number of
Holder Amount of Note Warrants
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Lawrence & Company Inc. $1,000,000 100,000
Trans Euro Investments Ltd. 500,000 50,000
Alcamin Anstalt Vaduz 300,000 30,000
I. Michael Goodman/Agis Associates L.L.C. 200,000 20,000
Henry Harris 200,000 20,000
David Wachsman 150,000 15,000
Harvey Silverman 150,000 15,000
Douglas Schwarzwaelder 100,000 10,000
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TOTAL: $2,600,000 260,000
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