51/4% CONVERTIBLE SUBORDINATED NOTES DUE 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of October 24, 1995
by and among
CHECKPOINT SYSTEMS, INC.
as the Company,
and
Persons Listed on Schedule I hereto
This Registration Rights Agreement is made and entered
into as of October 24, 1995, by and among Checkpoint Systems, Inc.,
a Pennsylvania corporation (the "Company"), and the parties listed on
Schedule I hereto (the "Managers").
This Agreement is made pursuant to the Subscription
Agreement, dated October 17, 1995, among the Company and the Managers
(the "Subscription Agreement"). In order to induce the Managers to
enter into the Subscription Agreement, the Company has agreed to
provide the registration rights provided for in this Agreement to the
Managers and their respective direct and indirect transferees. The
execution of this Agreement is a condition to the closing of the
transactions contemplated by the Subscription Agreement.
The parties hereby agree as follows:
I. Definitions
As used in this Agreement, the following terms shall
have the following meanings:
Accredited Investor Debentures: Debentures initially
resold by the Managers pursuant to the Subscription Agreement to
institutional "accredited investors" (within the meaning of Rule
501(a)(1), (2), (3) or (7) promulgated by the SEC under the
Securities Act) and all Debentures issued upon registration of
transfer of or in exchange for such Debentures.
Advice: As defined in the last paragraph of Section 3
hereof.
Affiliate of any specified person shall mean any other
person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For
the purposes of this definition, "control," when used with respect to
any person, means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "affili-
ated," "controlling" and "controlled" have meanings correlative to
the foregoing.
Agreement: This Registration Rights Agreement, as the
same may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New
York, New York are authorized or obligated by law or executive order
to close.
Closing Date: The Closing Date as defined in the
Subscription Agreement.
Common Stock: Common Stock, $.10 par value per share of
the Company.
Company: Checkpoint Systems, Inc., a Pennsylvania cor-
poration, and any successor corporation thereto.
Controlling Person: As defined in Section5(a) hereof.
Debentures: The $120,000,000 aggregate principal amount
of 51/4% Convertible Subordinated Debentures due 2005 of the
Company being issued pursuant to the Indenture.
Effectiveness Period: As defined in Section 2(a)
hereof.
Effectiveness Target Date: The 180th day following the
Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
pursuant thereto.
Filing Date: The 120th day after the Closing Date.
Holder: Each registered holder of any Transfer
Restricted Securities.
Indemnified Person: As defined in Section 5(a) hereof.
Indenture: The Indenture, dated the date hereof,
between the Company and the Trustee thereunder, pursuant to which the
Debentures are being issued, as amended, modified or supplemented
from time to time in accordance with the terms thereof.
Lead Managers: NatWest Securities Limited, Deutsche
Xxxxxx Xxxxxxxx/X.X. Xxxxxxxx Inc., PaineWebber Incorporated and HD
Xxxxx & Co., Inc.
Managers: As defined in the preamble hereof.
Paying Agent: As defined in the Indenture.
Proceeding: An action, claim, suit or proceeding (in-
cluding, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated pursuant to the Securities Act), as amended or supple-
mented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Securities covered
by such Registration Statement, and all other amendments and supple-
ments to any such prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Registration Statement: Any registration statement of
the Company that covers any of the Transfer Restricted Securities
pursuant to the provisions of this Agreement, including the Prospec-
tus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration
statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 144A Debentures: Debentures initially resold by
the Managers pursuant to the Subscription Agreement to "qualified
institutional buyers" (as such term is defined in Rule 144A) and all
Debentures issued upon registration of transfer of or in exchange for
such Debentures.
Rule 158: Rule 158 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 2 hereof.
Special Counsel: Any special counsel to the Holders of
the Transfer Restricted Securities, for which the Holders of the
Transfer Restricted Securities will be reimbursed pursuant to Section
4 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Rule 144A
Debentures, the Accredited Investor Debentures and the shares of Com-
mon Stock into which the Rule 144A Debentures and the Accredited
Investor Debentures are convertible, upon original issuance thereof,
and at all times subsequent thereto, until, in the case of any such
Rule 144A Debenture, Accredited Investor Debenture or share, (i) the
date on which it has been registered effectively pursuant to the
Securities Act and disposed of in accordance with the Registration
Statement relating to it, (ii) the date on which either such
Debentures or the shares of Common Stock issued upon conversion of
such Debentures are distributed to the public pursuant to Rule 144
(or any similar provisions then in effect) or are saleable pursuant
to Rule 144(k) promulgated by the SEC pursuant to the Securities Act
or (iii) the date on which it ceases to be outstanding.
Trustee: Chemical Bank, the trustee under the Inden-
ture.
underwritten registration or underwritten offering: A
registration in connection with which securities of the Company are
sold to an underwriter for reoffering to the public pursuant to an
effective Registration Statement.
2. Shelf Registration
(a) The Company agrees to file with the SEC as soon as
practicable after the Closing Date, but in no event later than the
Filing Date, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "Shelf Registration"). The Shelf Regis-
tration shall be on Form S-3 under the Securities Act or another
appropriate form permitting registration of such Transfer Restricted
Securities for resale by the Holders in the manner or manners rea-
sonably designated by them (including, without limitation, one or
more underwritten offerings). The Company shall not permit any secu-
rities other than the Transfer Restricted Securities to be included
in the Shelf Registration. The Company shall use its reasonable best
efforts, as described in Section 3, to cause the Shelf Registration
to be declared effective pursuant to the Securities Act as promptly
as practicable following the filing thereof, but in no event later
than the Effectiveness Target Date, and to keep the Shelf Regis-
tration continuously effective under the Securities Act thereafter
through the 36th month after the Closing Date (subject to extension
pursuant to clause (b) and the last paragraph of Section 3 hereof),
or such shorter period ending when there cease to be outstanding any
Transfer Restricted Securities (the "Effectiveness Period").
(b) Supplements and Amendments. The Company shall use
its reasonable best efforts to keep the Shelf Registration continu-
ously effective by supplementing and amending the Shelf Registration
if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Transfer Restricted
Securities covered by such Registration Statement or by any under-
writer of such Transfer Restricted Securities; provided that the
Effectiveness Period shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 and as otherwise provided herein.
3. Registration Procedures
In connection with the Company's registration
obligations hereunder, the Company shall effect such registrations on
the appropriate form available for the sale of the Transfer
Restricted Securities to permit the sale of the Transfer Restricted
Securities in accordance with the method or methods of disposition
thereof specified by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities, and pursuant thereto
the Company shall as expeditiously as possible:
(a) No fewer than five Business Days prior to the
initial filing of a Registration Statement or Prospectus and no fewer
than two Business Days prior to the filing of any amendment or sup-
plement thereto (other than any document that would be incorporated
or deemed to be incorporated therein by reference), furnish to the
Holders of the Transfer Restricted Securities, their Special Counsel
and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the
review of such Holders, their Special Counsel and such underwriters,
if any, and cause the officers and directors of the Company, counsel
to the Company and independent certified public accountants to the
Company to respond to such inquiries as shall be necessary in
connection with such Registration Statement, in the opinion of re-
spective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act.
The Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto to which the
Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities, their Special Counsel, or the managing under-
writers, if any, shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, in-
cluding post-effective amendments, to each Registration Statement as
may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities
covered by such Registration Statement during such period in accor-
dance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented; provided, however, that the Company
shall not be deemed to have kept a Registration Statement effective
during the Effectiveness Period if it voluntarily takes or fails to
take any action that results in selling Holders of the Transfer
Restricted Securities covered thereby not being able to sell such
Transfer Restricted Securities pursuant to Federal securities laws
during that period (and the time period during which such Regis-
tration Statement is required to remain effective hereunder shall be
extended by the number of days during which such selling Holders of
the Transfer Restricted Securities are not able to sell Transfer Re-
stricted Securities).
(c) Notify the Holders of the Transfer Restricted
Securities to be sold or their Special Counsel and the managing
underwriters, if any, promptly (and in the case of an event specified
by clause (i)(A) of this paragraph in no event fewer than two
Business Days prior to such filing), and (if requested by any such
person), confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to
be filed, and, (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other Federal or state governmental au-
thority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or injunc-
tion suspending or enjoining the use or the effectiveness of a Regis-
tration Statement or the initiation of any proceedings for that pur-
pose, (iv) if at any time any of the representations and warranties
of the Company contained in any agreement (including any underwriting
agreement) contemplated by Section 3(m) hereof cease to be true and
correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Transfer
Restricted Securities for sale in any jurisdiction, or the initiation
or threat of any proceeding for such purpose, and (vi) of the happen-
ing of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registra-
tion Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, not
misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(d) Use its reasonable best efforts to avoid the issu-
ance of, or, if issued, obtain the withdrawal of any order enjoining
or suspending the use or effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Transfer Restricted Securities for sale
in any jurisdiction, at the earliest practicable moment;
(e) If requested by the managing underwriters, if any,
or the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold in connection with such
offering, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing
underwriters, if any, and such Holders agree should be included
therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amend-
ment; provided, however, that the Company shall not be required to
take any action pursuant to this Section 3(e) that would, in the
opinion of counsel for the Company, violate applicable law;
(f) Furnish to each Holder of the Transfer Restricted
Securities, their Special Counsel and each managing underwriter, if
any, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements
(but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless requested
in writing by such Holder, counsel or managing underwriter);
(g) Deliver to each Holder of the Transfer Restricted
Securities, their Special Counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement
thereto as such persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of the Transfer
Restricted Securities and the underwriters, if any, in connection
with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of the Transfer
Restricted Securities, use its reasonable best efforts to register or
qualify or cooperate with the Holders of the Transfer Restricted
Securities to be sold or tendered for, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Transfer Restricted Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any Holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so
subject;
(i) In connection with any sale or transfer of the
Transfer Restricted Securities that will result in such securities no
longer being the Transfer Restricted Securities, cooperate with the
Holders and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing the
Transfer Restricted Securities to be sold, which certificates shall
not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company and to enable such Transfer
Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may
request at least two Business Days prior to any sale of the Transfer
Restricted Securities;
(j) Use its reasonable best efforts to cause the
offering of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States,
except as may be required as a consequence of the nature of such
selling Holder's business, in which case the Company will cooperate
in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Transfer Restricted Securities;
provided, however, that the Company shall not be required to register
the Transfer Restricted Securities in any jurisdiction that would
subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in
any such jurisdiction where it is not then so subject or to require
the Company to qualify to do business in any jurisdiction where it is
not then so qualified;
(k) Upon the occurrence of any event contemplated by
Section 3(c)(vi) hereof, as promptly as practicable, prepare a
supplement or amendment, including, if appropriate, a post-effective
amendment, to each Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(l) Prior to the effective date of the first Registra-
tion Statement relating to the Transfer Restricted Securities, to
provide a CUSIP number for the Transfer Restricted Securities;
(m) Enter into such agreements (including an under-
writing agreement in form, scope and substance as is customary in
underwritten offerings) and take all such other reasonable actions in
connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
being sold) in order to expedite or facilitate the disposition of
such Transfer Restricted Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not
the registration is an underwritten registration, (i) make such
representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to
the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of
them), and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein,
in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the
same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and Special Counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each selling
Holder of the Transfer Restricted Securities and each of the under-
writers, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and underwriters; (iii)
use its best efforts to obtain customary "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling
Holder of the Transfer Restricted Securities and each of the under-
writers, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling Holders of
the Transfer Restricted Securities and the underwriters, if any, than
those set forth in Section 5 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities covered by such Regis-
tration Statement and the managing underwriters); and (v) deliver
such documents and certificates as may be reasonably requested by the
Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold, their Special Counsel and the
managing underwriters, if any, to evidence the continued validity of
the representations and warranties made pursuant to clause (i) of
this Section 3(m) and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(n) Make available for inspection by a representative
of the Holders of the Transfer Restricted Securities being sold, any
underwriter participating in any such disposition of the Transfer
Restricted Securities, if any, and any attorney, consultant or
accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably
request (including with respect to business and assets acquired or to
be acquired to the extent that such information is available to the
Company), and cause the officers, directors, agents and employees of
the Company and its subsidiaries (including with respect to business
and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in
each case reasonably requested by any such representative, under-
writer, attorney, consultant or accountant in connection with such
Registration Statement, provided, however, that such persons shall
first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be
kept confidential by such persons, unless (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in
connection with the filing of any Registration Statement or the use
of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or
(iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a con-
fidentiality agreement;
(o) Provide an indenture Trustee for the Transfer
Restricted Securities and cause the Indenture to be qualified under
the TIA not later than the effective date of the first Registration
Statement relating to the Transfer Restricted Securities; and in
connection therewith, cooperate with the Trustee under the Indenture
and the Holders of the Transfer Restricted Securities to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute,
and use its reasonable best efforts to cause such Trustee to execute,
all customary documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC
to enable the Indenture to be so qualified in a timely manner;
(p) Comply with applicable rules and regulations of
the SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act), no later than 45 days after
the end of any 12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter
after the effective date of a Registration Statement, which statement
shall cover said period, consistent with the requirements of Rule
158; and
(q) (i) list all Common Stock covered by such Registra-
tion Statement on any securities exchange on which the Common Stock
is then listed or (ii) authorize for quotation on the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of NASDAQ all Common Stock
covered by such Registration Statement if the Common Stock is then so
authorized for quotation.
The Company may require each seller of the Transfer
Restricted Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution
of such Transfer Restricted Securities as is required by law to be
disclosed in the applicable Registration Statement and the Company
may exclude from such registration the Transfer Restricted Securities
of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
If any such Registration Statement refers to any Holder
by name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to
such Holder, 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 the Company's securities covered thereby
and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the
Company, 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 statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required.
Each Holder of the Transfer Restricted Securities agrees
by acquisition of such Transfer Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(v) or
3(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(k)
hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incor-
porated by reference in such Prospectus. If the Company shall give
any such notice, the Effectiveness Period shall be extended by the
number of days during such period from and including the date of the
giving of such notice to and including the date when each seller of
the Transfer Restricted Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof or (y) the
Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorpo-
rated by reference in such Prospectus.
4. Registration Expenses
(a) All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne by
it whether or not any Registration Statement is filed or becomes
effective and whether or not any securities are issued or sold
pursuant to any Registration Statement. The fees and expenses re-
ferred to in the foregoing sentence shall include, without limita-
tion, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to
be made with the National Association of Securities Dealers, Inc. and
(B) in compliance with securities or Blue Sky laws (including,
without limitation and in addition to that provided for in (b) below,
fees and disbursements of counsel for the underwriters or Special
Counsel for the Holders in connection with Blue Sky qualifications of
the Transfer Restricted Securities and determination of the
eligibility of the Transfer Restricted Securities for investment
under the laws of such jurisdictions as the managing underwriters, if
any, or Holders of a majority in aggregate principal amount of the
Transfer- Restricted Securities may designate)), (ii) printing
expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriters, if any, or by the
Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in or tendered for in
connection with any Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and Special Counsel for the Holders (plus any
local counsel, deemed appropriate by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities), in
accordance with the provisions of Section 4(b) hereof, (v) fees and
disbursements of all independent certified public accountants
referred to in Section 3(m)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by
or incident to such performance), (vi) Securities Act liability
insurance, if the Company so desires such insurance, and (vii) fees
and expenses of all other persons retained by the Company. In addi-
tion, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities
exchange. Notwithstanding the foregoing or anything in this Agree-
ment to the contrary, each Holder shall pay all underwriting dis-
counts and commissions of any underwriters or broker-dealers with
respect to any Transfer Restricted Securities sold by it.
(b) In connection with any registration hereunder, the
Company shall reimburse the Holders of the Transfer Restricted
Securities being registered or tendered for in such registration for
the reasonable fees and disbursements of not more than one firm of
attorneys representing the selling Holders (in addition to any local
counsel), which firm shall be chosen by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities.
5. Indemnification
(a) The Company agrees to indemnify and hold harmless
(i) each of the Managers, (ii) each Holder of the Transfer Restricted
Securities, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in
this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners,
employees, representatives and agents of the Managers, each Holder of
the Transfer Restricted Securities, or any controlling person (any
person referred to in clause (i), (ii), (iii) or (iv) may hereinafter
be referred to as an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus, 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 (in the case of any
Prospectus or form of Prospectus or supplement thereto, in light of
the circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Indemnified Person furnished in writing to the Company by or on
behalf of such Indemnified Person expressly for use therein; provided
that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting such losses, claims, damages,
liabilities and judgments purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in
such preliminary Prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have been furnished
to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such
Prospectus or any amendment or supplement thereto and with respect to
which indemnity may be sought against the Company, such Indemnified
Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person, unless (i) the employment
of such counsel shall have been specifically authorized in writing by
the Company, (ii) the Company shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Indemnified
Person and the Company and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the Company (in which case the Company shall not have
the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by
such Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred). The Company shall not be liable
for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Indemnified Person
from and against any loss or liability by reason of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(c) In connection with any Registration Statement in
which a Holder of the Transfer Restricted Securities is
participating, such Holder of the Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers and any person controlling the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (and, in the case of an underwriter
registration, the underwriters and their respective directors,
officers and persons controlling such underwriters within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange
Act) , to the same extent as the foregoing indemnity from the Company
to each Indemnified Person but only with reference to information
relating to such Indemnified Person furnished in writing by or on
behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against
the Company, any of its directors, any such officer or any person
controlling the Company based on such Registration Statement and in
respect of which indemnity may be sought against any Indemnified
Person, the Indemnified Person shall have the rights and duties given
to the Company (except that if the Company shall have assumed the
defense thereof, such Indemnified Person shall not be required to do
so, but may employ separate counsel therein and participate in
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person), and the Company, its direc-
tors, any such officers and any person controlling the Company shall
have the rights and duties given to the Indemnified Person, by
Section 5(b) hereof.
(d) If the indemnification provided for in this
Section 5 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to
therein, then each 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,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and each Indemnified Person on the other hand from the offering of
the Debentures or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and each
such Indemnified Person in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or judgments, as well as any other relevant equitable considerations.
The relative fault of the Company and each such Indemnified Person
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the
Company or such Indemnified Person and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 5(d)
were determined by pro rata allocation (even if the Indemnified
Person 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, liabilities or judgments 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 6, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which
the total net profit received by it in connection with the sale of
the Debentures pursuant to this Agreement exceeds the amount of any
damages which such Indemnified Person 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 misrep-
resentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Indemnified
Persons' obligations to contribute pursuant to this Section 5(d) are
several in proportion to the respective amount of Debentures included
in any such Registration Statement by each Indemnified Person and not
joint.
6. Rules 144 and 144A
The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not
required to file such reports but in the past had been required to or
did file such reports, it will, upon the request of any Holder of the
Transfer Restricted Securities, make available other information as
required by, and so long as necessary to permit, sales of its
Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations
(a) If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or
managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or
delayed).
No person may participate in any underwritten registra-
tion hereunder unless such person (i) agrees to sell such person's
Transfer Restricted Securities on the basis reasonably 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 agreements and other documents required under the terms
of such underwriting arrangements.
(b) Each Holder of the Transfer Restricted Securities
agrees, if requested (pursuant to a timely written notice) by the
managing underwriters in an underwritten offering or placement agent
in a private offering of the Company's securities, not to effect any
private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its
affiliates, officers, directors, employees and controlling persons of
any of the Debentures, in the case of an offering of the Company's
debt securities, or the Common Stock, in the case of an offering of
the Company's equity securities), during the period beginning 10 days
prior to, and ending 90 days after, the closing date of the
underwritten offering.
The foregoing provisions shall not apply to any Holder
of the Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such
agreement.
8. Miscellaneous
(a) Remedies. In the event of a breach by the
Company, or by a Holder of the Transfer Restricted Securities, of any
of their obligations under this Agreement, each Holder of the
Transfer Restricted Securities or the Company, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Agreement. The Company and each Holder of the Transfer
Restricted Securities agree that monetary damages would not be xxx-
xxxxx compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in respect
of such breach, it shall waive the defense that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. The Company shall not
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders of the Transfer
Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. The Company is not currently a party to any
agreement granting any registration rights with respect to any of its
debt or equity securities to any person, other than pursuant to a
certain Registration Rights Agreement dated September 6, 1994 by and
among the Company and Xxxxxxx Xxxxxx. Without limiting the generali-
ty of the foregoing, without the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, the Company shall not grant to any
person the right to request it to register any of its debt or equity
securities under the Securities Act unless the rights so granted are
subject in all respects to the prior rights of the Holders of the
Transfer Restricted Securities set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of
this Agreement.
(c) No Piggyback on Registrations. The Company shall
not grant to any of its security holders (other than the Holders of
the Transfer Restricted Securities in such capacity and pursuant to
the Registration Rights Agreement referred to in clause 8(b) above)
the right to include any of its securities in any Shelf Registration
other than Transfer Restricted Securities.
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, without the
written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities on a
fully converted basis; provided, however, that, for the purposes of
this Agreement, Transfer Restricted Securities that are owned,
directly or indirectly, by either the Company or an Affiliate of the
Company are not deemed outstanding. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of the
Transfer Restricted Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of the Transfer
Restricted Securities may be given by Holders of a majority of
the Transfer Restricted Securities (on a fully converted basis)
being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(e) Notices. All notices and other communications
provided for herein shall be made in writing by hand-delivery, next-
day air courier, certified first-class mail, return receipt
requested, telex or telecopy:
(i) if to the Company, as provided in the
Subscription Agreement,
(ii) if to the Managers, as provided in the
Subscription Agreement, or
(iii) if to any other person who is then the
registered Holder of any Transfer Restricted
Securities, to the address of such Holder as
it appears in the Debenture or Common
Stock register of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; one Business Day after
being timely delivered to a next-day air courier; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to the
benefit of each Holder of the Transfer Restricted Securities. The
Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder of the Transfer Restricted
Securities. Notwithstanding the foregoing, no transferee shall have
any of the rights granted under this Agreement until such transferee
shall acknowledge its rights and obligations hereunder by a signed
written statement of such transferee's acceptance of such rights and
obligations.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and
the same Agreement.
(h) Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVO-
CABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any
term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof. All references made in this Agreement to
"Section" and "paragraph" refer to such Section or paragraph of this
Agreement, unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover its
reasonable attorneys' fees in addition to any other available
remedy.
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed as of the date
first written above.
CHECKPOINT SYSTEMS, INC.
By: ___________________
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date
first above written.
NATWEST SECURITIES LIMITED
DEUTSCHE XXXXXX XXXXXXXX/X.X. XXXXXXXX INC.
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
HD XXXXX & CO., INC.
For themselves and, as representatives, for each
of the several Managers
By: NATWEST SECURITIES LIMITED
By: _____________________________
Name:
Title:
SCHEDULE I
MANAGERS
NatWest Securities Limited
Deutsche Xxxxxx Xxxxxxxx/X.X. Xxxxxxxx Inc.
PaineWebber International (U.K.) Ltd.
HD Xxxxx & Co., Inc.
Banca del Gottardo
Bank Xxxxxx Xxxx & Co. AG
Cazenove & Co.
Darier, Xxxxxxx & Cie
Dresdner Bank - Kleinwort Xxxxxx
Xxxxxx Brothers & Co. Limited
Lombard, Odier & Cie
UBS Limited
