EXHIBIT 10.20
INVESTOR REGISTRATION RIGHTS AGREEMENT
THIS INVESTOR REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as
of April 10, 2000, by and among American Reprographics Holdings, L.L.C., a
California limited liability company ("Holdings"), ARC Acquisition Co., L.L.C.,
a Delaware limited liability company ("Company"), Xxxxxxxxxxxxx Xxxxxxxxxxxx
("Mohan"), Kumarakulasingam Xxxxxxxxxxx ("Suri"), GS Mezzanine Partners II,
L.P., a Delaware limited partnership ("GS"), GS Mezzanine Partners II Offshore,
L.P., a Cayman Islands exempted limited partnership. ("GS Offshore", and
together with GS or any Affiliate (as defined below) of GS to which GS or GS
Offshore may assign its rights hereunder, the "GS Parties"). Company, Mohan,
Suri and the GS Parties are collectively referred to herein as the
"Unitholders," and are individually referred to herein as a "Unitholder."
Otherwise undefined capitalized terms used herein are defined in Section 9
hereof.
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration.
(i) Subject to Sections 1(b) through 1(e), inclusive, below,
at any time following a Qualified Public Offering of Common Units, the holders
of at least a majority of the Company Registrable Securities or the M&S
Registrable Securities may request registration under the Securities Act of all
or any portion of such Company Registrable Securities or M&S Registrable
Securities on Form S-1 or any similar long-form registration ("Long-Form
Registrations") or, if available, on Form S-2 or S-3 or any similar short-form
registration ("Short-Form Registrations"). All registrations requested pursuant
to this Section 1(a) are referred to herein as "Demand Registrations."
(ii) Subject to Sections 1(c), 1(d) and 1(e) below, at any
time following a Qualified Public Offering of Common Units, the holders of at
least a majority of the GS Registrable Securities may request one (1) Demand
Registration.
Each request for a Demand Registration shall specify the approximate number of
Company Registrable Securities, M&S Registrable Securities or GS Registrable
Securities (as the case may be) requested to be registered and the anticipated
per Common Unit price range for such offering. Within ten (10) days after
receipt of any such request, Holdings shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to Section 1(d) below, will include in such registration, in addition to
the Company Registrable Securities, M&S Registrable Securities or GS Registrable
Securities (as the case may be) that are requested to be registered pursuant
hereto, all other Registrable Securities with respect to which Holdings has
received written requests for inclusion therein within fifteen (15) days after
the receipt of Holdings' notice.
(b) Long-Form Registrations. The holders of a majority of the
Company Registrable Securities and the holders of M&S Registrable Securities
shall each be entitled (as a group) to request up to two (2) Long-Form
Registrations, respectively. Holdings will pay all Registration Expenses (as
defined below in Section 5) for such Long Form Registrations. All Long-Form
Registrations shall be underwritten registrations.
(c) Short-Form Registrations. The holders of a majority of the
Company Registrable Securities and the holders of a majority of the M&S
Registrable Securities shall each be entitled (as a group) to request up to two
(2) Short-Form Registrations, respectively. Holdings will pay all Registration
Expenses for such Short Form Registrations. The holders of a majority of the GS
Registrable Securities shall be entitled to request one (1) Short-Form
Registration on Form S-3 or any successor or similar form in which Holdings will
pay all Registration Expenses. Demand Registrations will be Short-Form
Registrations whenever Holdings is permitted to use any applicable short form.
After Holdings has become subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended, Holdings shall use its best efforts
to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities. All Short-Form Registrations shall be underwritten
registrations, unless otherwise agreed to by Holdings. In the event the holders
of GS Registrable Securities request a Demand Registration pursuant to Section
1(a)(ii) above, but are unable to sell at least fifty percent (50%) of the GS
Registrable Securities requested to be included in such Demand Registration
because of a reduction in the amount which may be sold pursuant to Section 1(d)
below, the holders of such GS Registrable Securities shall be entitled to
withdraw such Demand Registration upon written notice to Company and Holdings
(in which case Holdings shall, at its option, be entitled to promptly withdraw
such Demand Registration), and, in such event, such withdrawn registration will
not be considered a Demand Registration.
(d) Priority on Demand Registrations. Holdings will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise Holdings in
writing that, in their opinion, the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, Holdings will include in such registration: (i) first, the number of
Registrable Securities requested to be included in such registration which in
the opinion of such underwriters can be sold without adverse effect, pro rata
among the respective holders thereof on the basis of the number of Registrable
Securities owned by each such holder, and (ii) second, other securities
requested to be included in such Demand Registration, pro rata among the holders
of such securities on the basis of the number of such securities owned by each
such holder.
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(e) Restrictions on Demand Registrations. Holdings will have the
right not to effect any Demand Registration within six (6) months after the
effective date of a previous Long-Form Registration or Short-Form Registration
with respect to Holdings, provided, however, that (i) the right of Holdings not
to effect a Demand Registration pursuant to this Section 1 (e) shall only be
effective with respect to a Short Form Registration if it is an underwritten
registration and (ii) Holdings shall have the right not to effect a Demand
Registration pursuant to this Section 1(e) only once in any twelve (12) month
period. Holdings may postpone, for up to six (6) months (from the date of the
request), the filing or the effectiveness of a registration statement for a
Demand Registration if. Holdings' board of directors believes that such Demand
Registration would reasonably be expected to have an adverse effect on any
proposal or plan by Holdings or any Subsidiary thereof to engage in any
acquisition of assets (other than in the ordinary course of business) or any
stock purchase, merger, consolidation, tender offer, reorganization, or similar
transaction; provided; however, that in such event, the holders of Registrable
Securities initially requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall be treated as if it had never been made in the first
instance, and Holdings will pay all Registration Expenses in connection with
such registration. Holdings may delay a Demand Registration hereunder only once
in any twelve (12)-month period.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities initially requesting registration hereunder will have the
right to select the investment banker(s) and manager(s) to administer the
offering under such Demand Registration, subject to Holdings' approval, which
will not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this
Agreement, Holdings will not grant to any Persons the right to request that
Holdings register any equity securities of Holdings, or any securities
convertible into or exchangeable or exercisable for any such securities, without
the prior written consent of the holders of at least a majority of the Company
Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever Holdings proposes to register any
of its equity securities under the Securities Act (other than pursuant to a
Demand Registration (which is addressed in Section 1, above, rather than this
Section 2) or a registration on Form S-4 or S-8 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), whether or not for sale for
its own account, Holdings will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and,
subject to Sections 2(c) and 2(d) below, will include in such registration all
Registrable Securities with respect to which Holdings has received written
requests for inclusion therein within fifteen (15) days after the receipt of
Holdings' notice; provided that with respect to any Piggyback Registration, the
holders of a majority of the Registrable Securities shall have the right to
waive and forego, as against themselves and all other holders of Registrable
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Securities, the inclusion of any Registrable Securities in such Piggyback
Registration on a pro rata basis for all such Registrable Securities.
(b) Piggyback Expenses. In all Piggyback Registrations, the
Registration Expenses of the holders of Registrable Securities will be paid by
Holdings.
(c) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of Holdings, and the managing
underwriters advise Holdings in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that, in their opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, Holdings will include in such registration: (i)
first, the securities that Holdings proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders thereof on the basis of the number of Registrable Securities
owned by each such holder, and (iii) third, other securities requested to be
included in such registration pro rata among the holders of such securities on
the basis of the number of such other securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
Holdings' securities (it being understood that secondary registrations on behalf
of holders of Registrable Securities are addressed in Section 1, above, rather
than in this Section 2(d), and the managing underwriters advise Holdings in
writing that, in their opinion, the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering. Holdings
will include in such registration: (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
Registrable Securities owned by each such requesting holder, and (iii) third,
other securities requested to be included in such registration pro rata among
the holders of such other securities on the basis of the number of such
securities owned by each such holder.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of the investment banker(s) and manager(s)
for the offering must be approved by the holders of a majority of the
Registrable Securities included in such Piggyback Registration, which approval
shall not be unreasonably withheld.
(f) Withdrawal by Holdings. If, at any time after giving notice of
its intention to register any of its securities as set forth in Section 2(a) and
before the effective date of such registration statement filed in connection
with such registration, Holdings shall determine, for any reason, not to
register such securities, Holdings may, at its sole discretion, give written
notice of such determination to each holder of Registrable Securities and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
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(g) Other Registrations. If Holdings has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1, above, or pursuant to this Section 2, and if such previous
registration has not been withdrawn or abandoned, Holdings will not file or
cause to be effected any other registration of any of its equity securities or
securities convertible into or exchangeable or exercisable for its equity
securities under the Securities Act (except on Form S-4 or S-8 or any successor
form), whether on its own behalf or at the request of any holder or holders of
such securities, until a period of at least six (6) months has elapsed from the
effective date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of Holdings, or any securities, options, or rights convertible into
or exchangeable or exercisable for such securities, during the seven (7) days
before and the one hundred eighty (180)-day period beginning on the effective
date of any underwritten public Offering of Holdings' equity securities
(including Demand and Piggyback Registrations) (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) Holdings agrees: (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days
before and the one hundred eighty (180)-day period beginning on the effective
date of any underwritten public offering of Holdings' equity securities
(including Demand and Piggyback Registrations) (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each holder of its Common Units, or any
securities convertible into or exchangeable or exercisable for Common Units,
purchased or otherwise acquired from Holdings at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during any such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement. Holdings will use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto, Holdings will as
expeditiously as possible:
(a) prepare and (within sixty (60) days after the end of the
period within which requests for registration may be given to Holdings) file
with the Securities and Exchange Commission a registration statement with
respect to such Registrable Securities and thereafter use its best efforts to
cause such registration statement to become effective as soon as practicable but
no later than one hundred twenty (120) days after the applicable request date
(provided that, before
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filing a registration statement or prospectus or any amendments or supplements
thereto, Holdings will furnish to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents will be
subject to review of such counsel);
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of either: (i) not less than six
(6) months (subject to extension pursuant to Section 7(b)) or, if such
registration statement relates to an underwritten offering, such longer period
as in the opinion of counsel for the underwriters a prospectus is required by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer, or (ii) such shorter period as will terminate when all of
the securities covered by such registration statement during such period have
been disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement (but in any
event, not before the expiration of any longer period required under the
Securities Act), and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that Holdings will not be required to: (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, Holdings will prepare and furnish to such seller a reasonable number of
copies 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 an untrue
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statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made:
(f) use best efforts to cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by
Holdings are then listed and, if not so listed, to be listed on a securities
exchange or the National Association of Securities Dealers ("NASD") automated
quotation system and, if listed on the NASD automated quotation system, use its
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a "national market system security" of The
Nasdaq Stock Market within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure The Nasdaq Stock Market's
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two (2) market makers to
register as such with respect to such Registrable Securities with the NASD;
(g) use best efforts to provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split,
combination of shares, recapitalization, or reorganization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant, or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate and business documents and properties of Holdings, and cause Holdings'
officers, directors, employees, agents, representatives, and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant, or agent in connection with such registration
statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, beginning
with the first day of Holdings' first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of Holdings to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to Holdings in writing, which in the reasonable judgment of
such holder and its counsel should be included;
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(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction. Holdings will use its reasonable best efforts promptly to obtain
the withdrawal of such order;
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(n) use best efforts to obtain a cold comfort letter from Holdings'
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters, which letter shall be
addressed to the underwriters, and Holdings shall use its reasonable best
efforts to cause such cold comfort letter to also be addressed to the holders of
such Registrable Securities; and
(o) use best efforts to obtain an opinion from Holdings' outside
counsel in customary form and covering such matters of the type customarily
covered by such opinions, which opinion shall be addressed to the underwriters
and the holders of such Registrable Securities.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of Holdings and if such holder, in its
sole and exclusive judgment, is or might be deemed to be an underwriter or a
controlling person of Holdings, such holder shall have the right to require: (i)
the insertion therein of language, in form and substance satisfactory to such
holder and presented to Holdings in writing, to the effect that the holding by
such holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of Holdings' securities covered thereby,
and that such holding does not imply that such holder shall assist in meeting
any future financial requirements of Holdings, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar federal or state statute then in force the deletion of the
reference to such holder; provided that, with respect to this clause (ii), such
holder shall furnish to Holdings an opinion of counsel to such effect, which
opinion and counsel shall be reasonably satisfactory to Holdings. Holdings may
require each seller of Registrable Securities as to which any registration is
being effected to furnish Holdings with such information regarding such seller
and the distribution of such securities as Holdings may from time to time
reasonably request in writing.
5. Registration Expenses.
(a) All expenses incident to Holdings' performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and disbursements of custodians,
fees and disbursements of counsel for Holdings, and all
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independent certified public accountants, underwriters (excluding discounts and
commissions), and other Persons retained by Holdings (all such expenses being
herein called "Registration Expenses"), will be borne as provided in this
Agreement, except that Holdings will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance, and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by Holdings are then listed or, if
none are so listed, on a securities exchange or the NASD automated quotation
system.
(b) In connection with each Demand Registration and each Piggyback
Registration, Holdings shall reimburse the holders of Registrable Securities for
the reasonable fees and disbursements of one (1) counsel chosen by the holders
of a majority of the Registrable Securities initiating such Demand Registration
or the holders of a majority of the Registrable Securities included in such
Piggyback Registration, as the case may be.
(c) To the extent Registration Expenses are not required to be paid
by Holdings, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of each seller's securities to be so
registered.
6. Indemnification.
(a) Holdings agrees to indemnify and hold harmless, to the full
extent permitted by law, each holder of Registrable Securities, its officers,
directors, agents, partners, members, stockholders and employees and each Person
who controls such holder (within the meaning of the Securities Act) (each an
"Indemnitee" and, collectively, the "Indemnities") against any and all losses,
claims, damages, liabilities, joint or several, together with reasonable costs
and expenses (including reasonable attorney's fees), to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of, are based upon, are
caused by, or result from: (i) any untrue or alleged untrue statement of
material fact contained (A) in any registration statement, prospectus, or
preliminary prospectus or any amendment thereof or supplement thereto, or (B) in
any application or other document or communication (in this Section 6
collectively called an "Application") executed by or on behalf of Holdings or
based upon written information furnished by or on behalf of Holdings filed in
any jurisdiction in order to qualify any securities covered by such registration
statement under the "blue sky" or securities laws thereof, or (ii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and Holdings will
reimburse such holder and each Indemnitee for any legal or any other expenses
incurred by them in connection with investigating or defending any such loss,
claim, liability, action, or proceeding; provided, however, that Holdings shall
not be liable in any such case to any such Person to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof), or
expense arises out of, is based upon,
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is caused by, or results from an untrue statement or alleged untrue statement,
or omission or alleged omission, made in such registration statement any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any Application, in reliance upon, and in conformity with, written
information prepared and furnished to Holdings by such Person expressly for use
therein or by such Person's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after Holdings
has furnished such Person with a sufficient number of copies of the same. In
connection with any underwritten offering. Holdings will indemnify such
underwriters, their officers and directors, and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to
Holdings in writing such information and affidavits as Holdings reasonably
requests for use in connection with any such registration statement or
prospectus and, to the full extent permitted by law will indemnify and hold
harmless the other holders of Registrable Securities and Holdings, and their
respective directors, officers, agents, and employees and each other Person who
controls Holdings (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities, joint or several, together with reasonable costs
and expenses (including reasonable attorney's fees), to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of, are based upon, are
caused by, or result from: (i) any untrue or alleged untrue statement of
material fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or in any Application,
or (ii) any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is made in such
registration statement, any such prospectus or preliminary prospectus or any
amendment or supplement thereto, or in any Application, in reliance upon and in
conformity with written information prepared and furnished to Holdings by such
holder expressly for use therein; provided, however, that the obligation to
indemnify will be individual to each holder and will be limited to the net
amount of proceeds received by such bolder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party), and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a
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claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnifying party shall not, except with the approval of
each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of a release from all
liability in respect to such claim or litigation without any payment or
consideration provided by such indemnified party.
(e) If the indemnification provided for in this Section 6 is
unavailable to, or is insufficient to hold harmless, an indemnified party under
the provisions above in respect to any losses, claims, damages, or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by Holdings on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other hand from the sale of Registrable Securities pursuant to
the registered offering of securities as to which indemnity is sought, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of Holdings
on the one hand and of the sellers of Registrable Securities and any other
sellers participating in the registration statement on the other hand in
connection with the registration statement on the other in connection with the
statement or omissions which resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by Holdings on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) to Holdings
bear to the total net proceeds from the offering (before deducting expenses) to
the sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of Holdings on the one hand and of
the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged omission to state a material
fact relates to information supplied by Holdings or by the sellers of
Registrable Securities or other sellers participating in the registration
statement and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
(f) Holdings and the sellers of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the sellers of Registrable Securities
were treated as one entity for such purpose) 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, and liabilities
referred to in the immediately preceding
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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 6, no seller of Registrable
Securities shall be required to contribute any amount if excess of the net
proceeds received by such seller from the sale of Registrable Securities covered
by the registration statement filed pursuant hereto. 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.
(g) The indemnification and contribution by any such party provided
for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director, or controlling Person of such indemnified party and will
survive the transfer of securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person: (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s); provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested Holdings to include in any
registration), and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from Holdings of the happening of any
event of the kind described in Section 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 4(e). In the
event that Holdings shall give any such notice, the applicable time period
mentioned in Section 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this Section 7 to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 4(e).
8. Current Public Information. At all times after Holdings has filed a
registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
Holdings will file all reports required to be filed by
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it under the Securities Act and the Securities Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder, and
will take such further action as any holder or holders of Registrable Securities
may reasonably request, all to the extent required to enable such holders to
sell Registrable Securities pursuant to Rule 144 adopted by the Securities and
Exchange Commission under the Securities Act (as such rule may be amended from
time to time) or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
9. Definitions
"Affiliate" means, as to any specified Person, (i) any shareholder,
equity owner, officer, or director of such Person and their family members or
(ii) any other Person which, directly or indirectly or indirectly, controls, is
controlled by, employed by or is under common control with, any of the
foregoing. For the purposes of this definition, "control" means the possession
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.
"Company Registrable Securities" means: (i) all Common Units
originally issued, directly or indirectly to Company, (ii) all Common Units
issued or issuable, directly or indirectly, with respect to the securities
referred to in clause (i) above upon exercise, conversion, or exchange or by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization, and (iii) any
other Common Units held by Persons holding securities described in clauses (i)
and (ii) above. As to any particular Company Registrable Securities, such
securities shall cease to be Company Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer, or market maker
in compliance with Rule 144 under the Securities Act (or any similar rule then
in force) or repurchased by Holdings or any Subsidiary thereof or purchased or
otherwise acquired by any employee of Holdings, and, if such Company Registrable
Securities are purchased or otherwise acquired by any employee of Holdings, then
such Company Registrable Securities shall be deemed Registrable Securities. For
purposes of this Agreement, a Person shall be deemed to be a holder of Company
Registrable Securities, and the Company Registrable Securities shall be deemed
to be in existence, whenever such Person has the right to acquire directly or
indirectly such Company Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Company Registrable Securities hereunder.
"Common Unit" means: (i) a Unit having the rights and obligations
specified with respect to Common Units in the Operating Agreement, (ii) common
stock or other securities issued in exchange for Common Units pursuant to a
recapitalization or reorganization undertaken in connection with an IPO (as
defined in the Operating Agreement), including without limitation, securities
issued in connection with the contribution of assets or securities of Holdings
or its subsidiaries to a newly formed corporation, and (iii) any securities
issued or issuable directly or
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indirectly with respect to the securities referred to in clauses (i) and (ii),
above, by way of stock dividend or stock split or in connection with a
combination of units, recapitalization, merger, consolidation, or other
reorganization.
"GS Registrable Securities" means: (i) all Common Units originally
issued, directly or indirectly to any GS Parties, (ii) all Common Units issued
or issuable, directly or indirectly, with respect to the securities referred to
in clause (i) above upon exercise, conversion, or exchange or by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization, and (iii) any
other Common Units held by Persons holding securities described in clauses (i)
and (ii) above. As to any particular GS Registrable Securities, such securities
shall cease to be GS Registrable Securities when they have been distributed to
the public pursuant to an offering registered under the Securities Act or sold
to the public through a broker, dealer, or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force) or repurchased
by Holdings or any Subsidiary thereof or purchased or otherwise acquired by any
employee of Holdings, and, if such GS Registrable Securities are purchased or
otherwise acquired by any employee of Holdings, then such GS Registrable
Securities shall be deemed Registrable Securities. For purposes of this
Agreement, a Person shall be deemed to be a holder of GS Registrable Securities,
and the GS Registrable Securities shall be deemed to be in existence, whenever
such Person has the right to acquire directly or indirectly such GS Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, and such Person shall be entitled to exercise the rights of a holder
of GS Registrable Securities hereunder.
"Holdings" means American Reprographics Holdings, L.L.C., a
California limited liability company, and any successor entity or corporation
created in connection with an IPO (as defined in the Operating Agreement).
"M&S Registrable Securities" means: (i) all shares of Common Units
originally issued, directly or indirectly to Mohan and Suri or entities in which
they control a majority of the voting common stock, (ii) all shares of Common
Units issued or issuable, directly or indirectly, with respect to the securities
referred to in clause (i) above upon exercise, conversion, or exchange or by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization, and (iii) any
other Common Units held by Persons holding securities described in clauses (i)
and (ii) above. As to any particular M&S Registrable Securities, such securities
shall cease to be M&S Registrable Securities when they have been distributed to
the public pursuant to an offering registered under the Securities Act or sold
to the public through a broker, dealer, or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force) or repurchased
by Holdings or any Subsidiary thereof or purchased or otherwise acquired by any
employee of Holdings, and, if such M&S Registrable Securities are purchased or
otherwise acquired by any employee of Holdings, then such M&S Registrable
Securities shall be deemed Registrable Securities. For purposes of this
Agreement, a Person shall be deemed to be a holder of M&S Registrable
Securities, and the M&S Registrable
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Securities shall be deemed to be in existence, whenever such Person has the
right to acquire directly or indirectly such M&S Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected, and such
Person shall be entitled to exercise the rights of a holder of M&S Registrable
Securities hereunder.
"Operating Agreement" means the Amended and Restated Operating
Agreement of American Reprographics Holdings, L.L.C.
"Person" means an individual, a partnership, a joint venture, an
association, a joint stock company, a corporation, a limited liability company,
a trust (including any beneficiary thereof), an unincorporated organization, and
a governmental entity or any department, agency, or political subdivision
thereof.
"Qualified Public Offering" means a sale of equity securities of
Holdings in an underwritten (firm commitment) public offering registered under
the Securities Act, with gross proceeds of not less than Twenty-five Million
Dollars ($25,000,000.00), and resulting in the listing of Holdings' Common Units
on a nationally recognized stock exchange, including without limitation, The
Nasdaq Stock Market National Market System.
"Registrable Securities" means, collectively, the Company
Registrable Securities, the GS Registrable Securities and the M&S Registrable
Securities.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body
or agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Subsidiary" or "Subsidiaries" means, with respect to any Person,
any corporation, limited liability company, partnership, association, or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof,
or (ii) if a limited liability company, partnership, association, or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity if such Person or Persons shall be allocated a
-15-
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director or
general partner of such limited liability company, partnership, association, or
other business entity.
"Unit" means a unit of interest in Company held by a Member or other
Economic Owner (as defined in the Operating Agreement), in certain allocations
of Net Profits and Net Losses of the Company (as defined in the Operating
Agreement) and in certain distributions with respect thereto.
10. Miscellaneous.
(a) No Inconsistent Agreements. Holdings will not hereafter enter
into any agreement with respect to Holdings' securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. Holdings will not
take any action, or permit any change to occur, with respect to Holdings'
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split, combination of shares,
or other recapitalization).
(c) Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against Holdings or the holders of Registrable Securities, unless such
modification, amendment, or waiver is approved in writing by Holdings and the
holders of at least a majority of the Registrable Securities; provided, however,
that in the event that such amendment or waiver would materially and adversely
affect a holder or group of holders of Registrable Securities in a manner
substantially different than any other holders of Registrable Securities, then
such amendment or waiver will require the consent of such holder of Registrable
Securities or a majority of the Registrable Securities held by such group of
holders materially and adversely affected. Notwithstanding the foregoing, if an
amendment or modification of this Agreement serves merely to add a party
hereto, then such amendment or modification will be effective against Holdings
and the holders of Registrable Securities if such amendment or modification is
approved in writing by Holdings, at least a majority of the holders of
Registrable Securities, and such new party hereto. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(d) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal, or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect
any other
-16-
provision or any other jurisdiction, but this Agreement will be reformed,
construed, and enforced in such jurisdiction as if such invalid, illegal, or
unenforceable provision had never been contained herein.
(e) Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement, those documents expressly referred to herein, and the
other documents of even date herewith embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements, or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(f) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or any portion thereof) as
such shall be for the benefit of, and enforceable by, any subsequent holder of
any Registrable Securities (or of such portion thereof).
(g) Counterparts. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
shall constitute one and the same agreement.
(h) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce their rights under this Agreement
specifically to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any Unitholder may
in its sole discretion apply to any court of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
(i) Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, sent by first class mail
(postage prepaid and return receipt requested), or sent by reputable overnight
courier service (charges prepaid) to Holdings at the address set forth below and
to the other parties at their respective addresses indicated on Holdings'
records, or at such address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder when delivered personally,
three (3) days after deposit in the U.S. mail, and one (1) day after deposit
with a reputable overnight courier service. The address of Holdings is:
American Reprographics Holdings, L.L.C.
000 Xxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxxx
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Suri Xxxxxxxxxxx
Facsimile: (000)000-0000
with copies to:
ARC Acquisition Co., L.L.C.
c/o Code, Xxxxxxxx & Xxxxxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Forrnolo
Xxxxxx X. Xxxxxx
and
Altheimer & Xxxx
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: S. Xxxxxxx Xxxx
Xxxxx X. Xxxxxx
and
Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, Xxxx LLP
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
(k) Governing Law. This Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of Illinois, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Illinois.
(l) No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
(m) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which Holdings' chief executive office is located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
-18-
(n) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
-19-
GS MEZZANINE PARTNERS II, L.P.
By: GS Mezzanine Advisors II, LLC
Its: General Partner
By: /s/ XXXXXXXXX X. XXXXXXXXXX
-----------------------------
Its:
XXXXXXXXX X. XXXXXXXXXX
VICE PRESIDENT
(Continuation of Registration Agreement Signature Page)
GS MEZZANINE PARTNERS II OFFSHORE, LP
BY: GS Mezzanine Advisors II, LLC
Its: General Partner
By: /s/ XXXXXXXXX X. XXXXXXXXXX
-----------------------------
Its:
XXXXXXXXX X. XXXXXXXXXX
VICE PRESIDENT
(Continuation of Registration Agreement Signature Page)
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
"Mohan"
/s/ XXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXX XXXXXXXXXXXX
Notice Address:
(Continuation of Registration Agreement Signature Page)
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
"Suri"
/s/ KUMARAKULASINGAM XXXXXXXXXXX
KUMARAKULASINGAM XXXXXXXXXXX
Notice Address:
(Continuation of Registration Agreement Signature Page)
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Agreement on the day and year first above written.
AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.
By: /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxxxxxxxxx Xxxxxxxxxxxx
Title: Chief Executive Officer
(Continuation of Registration Agreement Signature Page)
