Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 5 24K
2: EX-1 Underwriting Agreement 51 209K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 1 10K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 83 423K
5: EX-4 Instrument Defining the Rights of Security Holders 10 50K
6: EX-5 Opinion re: Legality 9 45K
7: EX-6 Opinion re: Discount on Capital Shares 10 46K
8: EX-7 Opinion re: Liquidation Preference 13 57K
9: EX-8 Opinion re: Tax Matters 15 59K
10: EX-9 Voting Trust Agreement 4 21K
11: EX-10 Material Contract 4 21K
12: EX-11 Statement re: Computation of Earnings Per Share 4 21K
13: EX-12 Statement re: Computation of Ratios 4 21K
14: EX-13 Annual or Quarterly Report to Security Holders 4 21K
15: EX-14 Material Foreign Patent 7 37K
16: EX-15 Letter re: Unaudited Interim Financial Information 7 38K
17: EX-16 Letter re: Change in Certifying Accountant 1 10K
18: EX-17 Letter re: Departure of Director 24 113K
19: EX-18 Letter re: Change in Accounting Principles 12 66K
20: EX-19 Report Furnished to Security Holders 11 50K
21: EX-20 Other Document or Statement to Security Holders 15 82K
22: EX-21 Subsidiaries of the Registrant 12 63K
23: EX-22 Published Report Regarding Matters Submitted to a 1 10K
Vote of Security Holders
24: EX-23 Consent of Experts or Counsel 2± 15K
EX-20 — Other Document or Statement to Security Holders
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<EXHIBIT> EXHIBIT 10.18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"),
dated as of December 26, 1997, is made and entered into by and
between PCD Inc., a Massachusetts corporation (the "Company"),
and EMERSON ELECTRIC CO., a Missouri corporation ("Emerson"
and, together with its permitted assigns under Section 11 hereof,
"Holders").
RECITALS
A. Emerson is the beneficial owner of 1,918,080
shares of common stock of the Company.
B. Concurrently with the execution of this Agreement,
the Company and Emerson have entered into the Subordinated
Debenture and Warrant Purchase Agreement dated December 26, 1997
(the "Purchase Agreement"), pursuant to which the Company has
issued to Emerson (i) the PCD Inc. Subordinated Debenture dated
December 26, 1997 (the "Debenture"), which is convertible into
a number of additional shares of common stock of the Company
determined on the basis of the conversion price thereof, which
will be fixed as of the date of conversion, and (ii) the Common
Stock Purchase Warrant dated December 26, 1997 (the "Warrant")
for the purchase of up to 525,000 additional shares of common
stock of the Company. The Warrant is initially exercisable for
up to 150,000 shares of common stock of the Company. If the
Debenture has not been paid in full on December 31, 1998 and
December 31, 1999, the Warrant will become exercisable for up to
an additional 225,000 and 150,000 shares of common stock of the
Company, respectively.
C. The Holder may desire, in the future, to sell to
the public some or all of such shares of common stock.
D. The Company and Emerson therefore deem it to be in
their respective best interests to set forth the rights of the
Holder in connection with public offerings and sales of such
shares.
NOW, THEREFORE, in consideration of the premises and
mutual covenants and obligations hereinafter set forth, and
intending to be legally bound hereby, the Company and Emerson
hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Common Stock" shall mean the common stock,
par value $0.01 per share, of the Company and any other
securities into which or for which such common stock has
been converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets, or
otherwise.
(b) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(c) "Form S-3" means such form of registration
statement under the Securities Act on the date hereof or any
similar registration form under the Securities Act
subsequently adopted by the SEC that permits the inclusion
or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(d) "Prior Purchase Agreement" means that
certain agreement of the Company, dated as of April 2, 1985,
entitled "Stock Purchase Agreement and Amended Stock
Purchase Agreement Dated March 31, 1983."
(e) "Registration Rights Owners" means all
beneficiaries, other than the Holders hereunder, of
registration rights under Section 9 of the Prior Purchase
Agreement and all permitted assigns thereunder.
(f) The terms "register," "registered," and
"registration," refer to a registration effected by the
preparation and filing of a Registration Statement in
compliance with the Securities Act, and the declaration or
ordering of effectiveness of such Registration Statement by
the SEC.
(g) "Registrable Securities" shall mean (i)
all shares of Common Stock owned by Emerson, whether
presently owned or subsequently acquired upon conversion of
the Debenture, exercise of the Warrants or otherwise, (ii)
all shares of Common Stock owned by a subsequent Holder that
were acquired (by Emerson or a subsequent Holder) upon
conversion of the Debenture or exercise of the Warrants, and
(iii) all shares of Common Stock issued as (or issuable upon
the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other
distribution with respect to, in exchange for, or in
replacement of the shares of Common Stock referred to in (i)
and (ii) above. The term "Registrable Securities"
excludes, however, any security (i) the sale of which had
been effectively registered under the Securities Act and
which had been disposed of in accordance with a Registration
Statement, (ii) that has been sold by a Holder in a
transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section
4(1) thereof (including, without limitation, transactions
pursuant to Rules 144 and 144A) such that the further
disposition of such securities by the transferee or assignee
is not restricted under the Securities Act, (iii) that have
been sold by a Holder in a transaction in which such
Holder's rights under this Agreement are not, or cannot be,
assigned, or (iv) for which the registration rights provided
under this Agreement have expired pursuant to Section 16 of
this Agreement.
(h) "Registration Expenses" shall mean (i)
registration, qualification and filing fees; (ii) fees and
expenses of compliance with state securities or blue sky
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laws (including reasonable fees and disbursements of counsel
in connection with blue sky qualification of any Registrable
Securities being registered); (iii) printing expenses; (iv)
internal expenses (including, without limitation, all
salaries and expenses of officers and employees performing
legal or accounting duties); (v) fees and disbursements of
counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the
Company (including the expenses of any comfort letters or
costs associated with the delivery by independent certified
public accountants of comfort letters customarily requested
by underwriters); (vi) fees and expenses of listing any
Registrable Securities on any securities exchange on which
the Common Stock is then listed; and (vii) fees and
disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding any underwriting fees,
discounts or commissions attributable to the sale of any
Registrable Securities and any fees and expenses of
underwriters' counsel (other than as provided in clause (ii)
above).
(i) "Registration Statement" shall mean any
registration statement or similar document that covers any
of the Registrable Securities pursuant to the provisions of
this Agreement, including the prospectus or preliminary
prospectus included therein, all amendments and supplements
to such Registration Statement, including post-effective
amendments, all exhibits to such Registration Statement, and
all material incorporated by reference in such Registration
Statement.
(j) "Rule 144" shall mean Rule 144 promulgated
under the Securities Act or any successor rule thereto.
(k) "Rule 144A" shall mean Rule 144A
promulgated under the Securities Act or any successor rule
thereto.
(l) "SEC" shall mean the Securities and
Exchange Commission.
(m) "Securities Act" shall mean the Securities
Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
2. DEMAND REGISTRATION.
(a) If the Company shall receive at any time a
written request, in the manner provided in Section 17, from
the Holders of Registrable Securities representing at least
ten percent (10%) of all Common Stock then outstanding that
the Company file a registration statement under the
Securities Act covering the registration of any or all of
such Holders' Registrable Securities, then the Company shall
(i) within 10 days of the receipt thereof, give written
notice, in the manner provided in Section 17, of such
request to all Holders of outstanding Registrable Securities
known to the Company, and (ii) subject to the limitations
contained in this Section 2, use its reasonable best efforts
to effect, as soon as practicable and in any event within
120 days of the receipt of such request, the registration
under the Securities Act, pursuant to the provisions of
Section 4 hereof, of all Registrable Securities for which
the Company receives a request from the Holders thereof in
the manner provided in Section 17 within 20 days of the
mailing of such
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notice by the Company. The Company, however, shall not be
required to effect a registration pursuant to this Section 2
unless the aggregate number of shares requested to be
registered represents at least ten percent (10%) of the
Common Stock then outstanding.
(b) If the Holder(s) initiating the registration
request hereunder (collectively, the "Initiating Holder")
intends to distribute the Registrable Securities covered by
its request by means of an underwriting, it shall so advise
the Company as a part of its request made pursuant to
Section 2(a) and the Company shall include such information
in the written notice to the Holders referred to in Section
2(a). In such event, the right of any Holder to include its
Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent provided
herein. All Holders proposing to sell securities through
such underwriting (together with the Company as provided in
Section 5(g) of this Agreement and any other holder of
shares of Common Stock permitted to participate in such
registration pursuant to this Section 2(b)) shall enter into
an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting
by the Company (provided the same are underwriters of
recognized national standing reasonably acceptable to the
Initiating Holder), upon the terms and conditions agreed
upon between the Company and such underwriter(s).
Notwithstanding any other provisions of this Section 2, if
the underwriter(s) advise the Initiating Holder in writing
that marketing or other factors require a limitation of the
number of Registrable Securities to be underwritten, then
the Company shall so advise Holders of Registrable
Securities that would otherwise be underwritten pursuant
hereto, and the number of Registrable Securities that may be
included in the underwriting shall be allocated among all
Holders thereof, including the Initiating Holder, in
proportion (as nearly as practicable) to the number of
Registrable Securities which each Holder requested be
included in such registration. If the number of Registrable
Securities to be underwritten has not been so limited, the
Company may include shares of Common Stock for its own
account (or for the account of other shareholders) in such
registration if the underwriter(s) so agree and to the
extent that, in the opinion of such underwriter(s), the
inclusion of such additional shares will not adversely
affect the offering of the Registrable Securities included
in such registration.
(c) The Company shall not be obligated to effect
a total of more than two registrations pursuant to this
Section 2 and shall not be obligated to effect more than one
registration in any twelve-month period pursuant to this
Section 2.
3. INCIDENTAL REGISTRATION.
(a) If (but without any obligation to do so) the
Company proposes to register (excluding a registration
effected by the Company for shareholders other than the
Holders, except this exclusion shall not apply in the case
of a firm commitment underwriting) any shares of Common
Stock under the Securities Act in connection with the public
offering of such shares solely for cash on any form of
Registration Statement in which the inclusion
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of Registrable Securities is appropriate (excluding a
registration (i) relating solely to the sale of securities
to participants in a Company stock plan, (ii) pursuant to a
Registration Statement on Form S-4 or Form S-8 (or any
successor forms) or any form that does not include
substantially the same information, other than information
relating to the selling shareholders or their plan of
distribution, as would be required to be included in a
registration statement covering the sale of Registrable
Securities, (iii) in connection with any dividend
reinvestment or similar plan, or (iv) for the sole purpose
of offering securities to another entity or its security
holders in connection with the acquisition of assets or
securities of such entity or any similar transaction), the
Company shall promptly give each Holder written notice of
such registration in the manner provided in Section 17 at
least 20 days before the anticipated filing date of any such
Registration Statement. The Company may also give notice to
any Registration Rights Owners if required by the Prior
Purchase Agreement. Upon the written request of any Holder
given in the manner provided in Section 17 within 10 days
after the mailing of such notice by the Company, the Company
shall, pursuant to the provisions of Section 4 hereof, cause
to be registered under the Securities Act all of the
Registrable Securities that such Holder has so requested to
be registered. The Company shall not be required to proceed
with, or maintain the effectiveness of, any registration of
its securities after giving the notice herein provided, and
the right of any Holder to have Registrable Securities
included in such Registration Statement shall be conditioned
upon participation in any underwriting to the extent
provided herein. The Company shall not be required to
include any Registrable Securities in such underwriting
unless the Holders thereof enter into an underwriting
agreement in customary form, and upon terms and conditions
agreed upon between the Company and the underwriter(s)
(except as to monetary obligations of the Holders not
contemplated by Section 9 of this Agreement), with the
underwriter(s) selected by the Company. In the event that
the underwriter(s) shall advise the Company that marketing
or other factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise
all Holders of Registrable Securities (and all Registration
Rights Owners who have given the above-stated notice, if
any) that would otherwise be underwritten pursuant hereto.
The underwriter(s) may exclude some or all of the
Registrable Securities and some or all of the securities
owned by Registration Rights Owners from such underwriting
and the number of Registrable Securities and securities
owned by Registration Rights Owners, if any, that may be
included in the underwriting shall be allocated among all
Holders and Registration Rights Owners in proportion (as
nearly as practicable) to the total number of securities
which each Holder requested be included in such
registration. Nothing in this Section 3 is intended to
diminish the number of securities to be included by the
Company in such underwriting. The Company and the
underwriter(s) selected by the Company shall make all
determinations with respect to the timing, pricing, and
other matters related to the offering.
4. REGISTRATION PROCEDURE. Whenever required under
this Agreement to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as
reasonable practicable:
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(a) Prepare and file with the SEC a new
Registration Statement with respect to such Registrable
Securities and use its best efforts to cause such
registration statement to become effective, and keep such
Registration Statement effective for up to 90 days or such
shorter period as shall be required to sell all of the
Registrable Securities covered by such Registration
Statement (except as provided in Section 3); provided,
however, that if such Registration Statement is on Form S-3
and related to a distribution by the Holders on a delayed or
continuous basis other than by means of an underwriting, the
Company shall keep such Registration Statement effective for
one year following the initial date of effectiveness
thereof; provided further that no Registration Statement
need remain in effect after all Registrable Securities
covered thereby have been sold.
(b) Prepare and file with the SEC such
amendments and supplements to such Registration Statement
and the prospectus used in connection with such Registration
Statement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to the Holders of Registrable
Securities to be registered, without charge, such number of
copies of a prospectus, including a preliminary prospectus,
and any amendment or supplement thereto as they may
reasonably request and a reasonable number of copies of the
then-effective Registration Statement and any post-
effective amendment thereto, including financial statements
and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by
reference).
(d) Promptly after the filing of any document
that is to be incorporated by reference into a Registration
Statement or prospectus, provide copies of such document to
the Holders of Registrable Securities covered thereby and
any underwriter.
(e) Use its reasonable best efforts to register
and qualify the securities covered by such Registration
Statement under such other securities or blue sky laws of
such jurisdictions as shall be reasonably requested by the
Holders; provided, however, that the Company shall not be
required to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions where it would not otherwise be required to so
qualify to do business or consent to service of process or
subject itself to taxation in any such jurisdiction.
(f) Cooperate with the Holders of Registrable
Securities and each underwriter participating in the
disposition of such Registrable Securities and their
respective counsel in connection with any filings required
to be made with the National Association of Securities
Dealers, Inc. or any other exchange or automated quotation
system on which the Company's Common Stock may be listed.
(g) In the event of any underwritten public
offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with
the underwriter(s) of such offering, with such terms and
conditions as the Company
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and the underwriter(s) may agree. Each Holder participating
in such underwriting shall also enter into and perform its
obligations under such an agreement.
(h) Notify each Holder of Registrable Securities
covered by such Registration Statement, at any time when a
prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a
result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing.
(i) Cause all Registrable Securities covered by
the Registration Statement to be listed on each securities
exchange or automated quotation system on which shares of
the Company's Common Stock are then listed. If any of such
shares are not so listed, the Company shall cause such
shares to be listed on such securities exchange or automated
quotation system as may be reasonably requested by the
Holders of a majority of the Registrable Securities being
registered.
(j) In the case of an underwritten public
offering, furnish to the underwriters, at the request of a
majority of the Holders requesting registration pursuant to
this Agreement, on the date that such Registrable Securities
are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, (A) an
opinion of counsel representing the Company for the purposes
of such registration, and (B) a letter from independent
certified public accountants of the Company, in each case to
be dated such date and to be in form and substance as is
customarily given by counsel or independent certified public
accountants, as the case may be, to underwriters in an
underwritten public offering, addressed to the underwriters.
(k) Permit a representative of any Holder of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration, and any attorney
or accountant retained by such Holder or underwriter, to
participate, at each such person's own expense, in the
preparation of the Registration Statement, and cause the
Company's officers, directors and employees to supply all
information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such
registration; provided, however, that, if requested by the
Company, such representatives, underwriters, attorneys or
accountants enter into a confidentiality agreement, in form
and substance reasonably satisfactory to the Company, prior
to the release or disclosure of any such information.
Notwithstanding the foregoing, the Company may delay,
suspend or withdraw any registration or qualification of
Registrable Securities required pursuant to this Agreement for a
period not exceeding 180 days if the Company shall in good faith
determine that any such registration would adversely affect a
public or private offering or contemplated offering of any
securities of the Company or any other anticipated or
contemplated material corporate event. In addition, the Company
shall not be required to register Registrable Securities within
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twelve months after the effective date of a Registration
Statement referred to in Section 3 pursuant to which the Holders
were afforded the opportunity to register Registrable Securities.
5. HOLDER'S OBLIGATION TO FURNISH INFORMATION. It
shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Agreement with respect to any
Registrable Securities that the Holder of such securities furnish
to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration
of such Holder's Registrable Securities.
Each Holder agrees that, upon receipt of any notice from the
Company requesting that the Holder forthwith discontinue
disposition of Registrable Securities pursuant to the then
current prospectus, the Holder will discontinue such disposition
until (i) such Holder is advised in writing by the Company that a
new Registration Statement covering the reoffer of Registrable
Securities has become effective under the Securities Act, (ii)
such Holder receives copies of a supplemental or amended
prospectus contemplated by Section 4 hereof, or (iii) until such
Holder is advised in writing by the Company that the use of the
prospectus may be resumed. The Company shall use its reasonable
best efforts to limit the duration of any discontinuance of
disposition of Registrable Securities pursuant to this paragraph.
6. REGISTRATION EXPENSES.
(a) In the case of the first demand registration
requested pursuant to Section 2, the Company shall pay all
Registration Expenses; provided, however, that the Company
shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2 if the
registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a
majority of Registrable Securities to be registered agree to
forfeit their right to one demand registration pursuant to
Section 2, as the case may be; provided further, however,
that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition,
business, or prospects of the Company from that known to the
Holders at the time of their request, then the Holders shall
not be required to pay any of such expenses and shall retain
their rights pursuant to Section 2. In the case of the
second demand registration requested pursuant to Section 2,
the Initiating Holder shall pay all Registration Expenses;
provided, however, that the Initiating Holder shall not be
required to pay for any expenses of any registration
proceeding begun pursuant to Section 2 if the registration
request is subsequently withdrawn expressly because of a
material adverse change in the condition, business, or
prospects of the Company that was not known to the
Initiating Holder at the time of its request (in which case
the Company shall bear all such expenses).
(b) In the case of any incidental registration
pursuant to Section 3, the requesting Holders shall bear any
incremental Registration Expenses, including, without
limitation, incremental registration and qualification fees
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and expenses (including underwriter's fees, discounts and
commissions), and any incremental costs and disbursements
(including legal fees and expenses) that result from the
inclusion of the Registrable Securities included in such
registration, with such incremental expenses being borne by
the requesting Holders on a pro rata basis.
7. EFFECTIVENESS OF REGISTRATION. A registration
requested pursuant to Section 2 will not be deemed to have been
effected if (i) the registration statement has not been kept
effective for the period required under Section 4(a) of this
Agreement, (ii) the offering of Registrable Securities pursuant
to such registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other
governmental agency or court, or (iii) the conditions to the
closing of any such registration that is underwritten are not
satisfied.
8. DELAY OF REGISTRATION. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise
delaying any registration of the Company's securities as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
9. INDEMNIFICATION AND CONTRIBUTION. In the event
any Registrable Securities are included in a Registration
Statement pursuant to this Agreement:
(a) The Company will indemnify and hold harmless
each Holder, its directors, officers and employees and each
person, if any, who "controls" such Holder (within the
meaning of the Securities Act) against all losses, claims,
damages, or liabilities, joint or several, or actions in
respect thereof to which such Holder or other person
entitled to indemnification hereunder may become subject
under the Securities Act or otherwise, insofar as such loss,
claims, damages, liabilities or actions in respect thereof
arise out of, or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in
such Registration Statement, any related preliminary
prospectus, or any related prospectus or any amendment or
supplement thereto, or arise out of, or are based upon, the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such
Holder or other person entitled to indemnification hereunder
for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Company will not be so liable to the extent that any
such loss, claim, damage, liability or action arises out of,
or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged
omission to state a material fact in such Registration
Statement, such preliminary prospectus, or such prospectus,
or any such amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished
to the Company by or on behalf of a Holder or an underwriter
specifically for use therein; and provided further that the
Company will not be liable, and this indemnification
agreement shall not apply, in any such case to the extent
that any such loss, claim, damage, liability or action is
solely attributable to the failure of such Holder (or
underwriter or agent acting on its behalf) to deliver a
final prospectus (or amendment or supplement thereto)
furnished by the Company that corrects a material
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misstatement or omission contained in the preliminary
prospectus (or final prospectus). The Company will also
indemnify underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in
the distribution, their officers and directors and each
person who "controls" such persons (within the meaning of
the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders, if so
requested, except with respect to information furnished in
writing specifically for use in any prospectus or
Registration Statement by any selling Holders or any such
underwriters.
(b) With respect to written information
furnished to the Company by or on behalf of a Holder
specifically for use in a Registration Statement, any
related preliminary prospectus, or any related prospectus or
any supplement or amendment thereto, such Holder will
severally indemnify and hold harmless the Company, and its
directors, officers and employees and each person, if any,
who "controls" the Company (within the meaning of the
Securities Act) against any losses, claims, damages or
liabilities, joint or several, or actions in respect
thereof, to which the Company or such other person entitled
to indemnification hereunder may become subject under the
Securities Act, or otherwise, insofar as such losses,
claims, damages, liabilities or actions in respect thereof
arise out of, or are based upon, any untrue statement or
alleged untrue statement in such information furnished by or
on behalf of such Holder of any material fact contained in
such Registration Statement, such preliminary prospectus, or
such prospectus, or any such amendment or supplement
thereto, or arise out of, or are based upon, the omission or
alleged omission in such information furnished by or on
behalf of such Holder to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and such Holder will
reimburse the Company and such other persons for any legal
or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
damage, liability or action, in each case to the extent, but
only to the extent, that the same arises out of, or is based
upon, an untrue statement or alleged untrue statement in
such information furnished by or on behalf of such Holder of
a material fact or an omission or alleged omission to state
a material fact in such Registration Statement, such
preliminary prospectus, or such prospectus or any such
amendment or supplement thereto in reliance upon, and in
conformity with, such written information; provided,
however, that the liability of any Holder hereunder shall be
limited to the amount received by such Holder upon the sale
of its Registrable Securities pursuant to such Registration
Statement, such preliminary prospectus, or such prospectus
or any such amendment or supplement thereto. The Company
shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to
the same extent as provided above with respect to the
information so furnished in writing by such persons
specifically for inclusion in any prospectus or Registration
Statement. Such Holder will also indemnify underwriters,
selling brokers, dealer managers and similar securities
industry professionals participating in the distribution,
their officers and directors and each person who
"controls" such persons (within the meaning of the
Securities Act) to the same extent as provided above with
respect to the indemnification of the Company, if so
requested.
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(c) Promptly after receipt by an indemnified
party of notice of any claim or the commencement of any
action, the indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party, notify
the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the
failure to notify the indemnifying party will not relieve it
from any liability that it may have to the indemnified party
except to the extent it was actually damaged or suffered any
loss or incurred any additional expense as a result thereof.
If any such claim or action is brought against an
indemnified party, and it notified the indemnifying party
thereof, the indemnifying party will be entitled to assume
the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the
indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the
defense of such claim or action, (i) the indemnifying party
will not be liable to the indemnified party for any legal or
other expense subsequently incurred by the indemnified party
in connection with the defense thereof, (ii) the
indemnifying party will not be liable for the costs and
expenses of any settlement of such claim or action unless
such settlement was effected with the written consent of the
indemnifying party or the indemnified party waived any
rights to indemnification hereunder in writing, in which
case the indemnified party may effect a settlement without
such consent, and (iii) the indemnified party will be
obligated to cooperate with the indemnifying party in the
investigation of such claim or action; provided, however,
that the Holders and their respective controlling persons
who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by such Holders
against the Company may employ their own counsel if they
have been advised by counsel in writing that, in the
reasonable judgment of such counsel, it is advisable for
such Holders and their controlling persons to be represented
by separate counsel due to the presence or reasonable
probability of conflicts of interest, and in that event the
fees and expenses of such separate counsel will also be paid
by the Company; provided that the Company shall not be
liable for the reasonable fees and expenses of more than one
separate counsel at any time for all such indemnified
parties. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle,
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or
consent includes a release of such indemnified party
reasonably acceptable to such indemnified party from all
liability arising out of such claim, action, suit or
proceeding or unless the indemnifying party shall confirm in
a written agreement reasonably acceptable to such
indemnified party, that notwithstanding any federal, state
or common law, such settlement, compromise or consent shall
not adversely affect the right of any indemnified party to
indemnification or contribution as provided in this
Agreement.
(d) If for any reason the indemnification
provided for in Sections 9(a) or (b) is unavailable to an
indemnified party or is insufficient to hold it harmless as
contemplated therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified
party as a result of such loss, claim, damage or liability
- 11 -
in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying and the
indemnified party, but also the relative fault of the
indemnifying party and the indemnified party, as well as any
other relevant equitable considerations. 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.
(e) The obligations under this Section 9 shall
survive the completion of any offering of Registrable
Securities in a Registration Statement pursuant to this
Agreement, and otherwise.
10. REPORTS UNDER EXCHANGE ACT. With a view to
making available to the Holders the benefits of Rule 144 and any
other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without
registration or pursuant to registration, the Company agrees to:
(a) Make and keep public information available,
as those terms are understood and defined under Rule 144, at
all times;
(b) Take such action as is necessary to enable
the Holders to utilize Form S-3 for the sale of their
Registrable Securities;
(c) File with the SEC in a timely manner all
reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(d) Furnish to any Holder, so long as the Holder
owns any Registrable Securities, upon request (i) a written
statement by the Company as to its compliance with the
reporting requirements of Rule 144, the Securities Act and
the Exchange Act, or as to its qualification as a registrant
whose securities may be resold pursuant to Form S-3, (ii) a
copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
11. ASSIGNMENT OF REGISTRATION RIGHTS.
(a) Emerson's rights pursuant to this Agreement
may be transferred or assigned by Emerson to (a) any
affiliate of Emerson, or (b) any other entity in connection
with the transfer to such entity of not less than 120,000
shares of Common Stock ((a) and (b) together, "Permitted
Assigns"); provided, however, that (i) the Company is,
promptly upon such transfer, furnished with written notice
of the name and address of such transferee or assignee and
the securities with respect to which such registration
rights are being assigned, (ii) the transfer of such
securities may be effected in accordance with all applicable
securities laws, (iii) immediately following such transfer
the further disposition of such securities by the transferee
or assignee is restricted under the Securities Act, and
- 12 -
(iv) the transferee executes and agrees to be bound by this
Agreement, an executed counterpart of which shall be
furnished to the Company.
(b) Except in connection with a transfer
permitted under Section 11(a) above, in no event may the
rights of Holders hereunder be transferred or assigned, it
being intended that the rights of Emerson under this
Agreement may be exercised only by Emerson or a Permitted
Assign, subject to the provisions and restrictions of
Section 11(a) above.
12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company may enter
into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or
prospective holder to require the Company to effect a
registration or to include such securities in any registration
filed under Section 2 or 3 hereof; provided, however, that (i)
the terms of such agreement shall provide that any such holder or
prospective holder may include such securities in any such
registration filed under Section 2 hereof only to the extent that
the inclusion of such holder's securities will not reduce the
amount of the Registrable Securities included in such
registration and (ii) such agreement includes the equivalent of
Section 14 as a term.
13. AMENDMENT OF REGISTRATION RIGHTS. Any provision
of this Agreement may be amended or the observance thereof may be
waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of
the Company and the holders of seventy-five percent (75%) of the
Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this Section shall be binding upon
each Holder of any Registrable Securities, each future Holder of
such securities and the Company.
14. "MARKET STAND-OFF" AGREEMENT. Any Holder, if
requested by the Company or an underwriter of an underwritten
public offering, agrees not to sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise transfer
or dispose of any Common Stock held by such Holder (other than
Registrable Securities included in the registration) without the
prior written consent of the Company or such underwriter(s), as
the case may be, during a period of up to seven days prior to and
180 days following the effective date of any underwritten
registration of the Company's securities effected pursuant to
Section 2 or 3 hereof. Such agreement shall be in writing in
form satisfactory to the Company and such underwriter, and may be
included in the underwriting agreement. The Company may impose
stop-transfer instructions with respect to the securities subject
to the foregoing restriction until the end of the required stand-
off period.
15. TERMINATION OF REGISTRATION RIGHTS. If the number
of shares of Registrable Securities owned by a Holder represents
less than one percent (1%) of the total number of shares of
Common Stock then outstanding, then such Holder's registration
rights under this Agreement relating to such Registrable
Securities shall terminate on the date such Holder is able to
dispose of all of its shares of Registrable Securities in any 90-
day period pursuant of Rule 144. All registration rights (except
for rights previously exercised in connection with an
underwritten public offering pursuant to Section 3) of a Holder
- 13 -
under this Agreement shall terminate on the date on which all of
such Holder's shares of Registrable Securities can be sold
pursuant to Rule 144(k) or similar successor rule. The
provisions of Sections 2, 3, 4, 11 and 12 of this Agreement shall
expire on March 26, 2006.
16. INFORMATION CONFIDENTIAL. No Holder may use any
confidential information received by it pursuant to this
Agreement in violation of the Exchange Act or reproduce,
disclose, or disseminate such information to any other person
(other than its employees or agents having a need to know the
contents of such information and its attorneys), except to the
extent reasonably related to the exercise of rights under this
Agreement, unless such information has been made available to the
public generally (other than by such recipient in violation of
this Section 16) or such recipient is required to disclose such
information by a governmental body or regulatory agency or by law
in connection with a transaction that is not otherwise prohibited
hereby.
17. NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, or air-courier
guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities,
initially at Emerson Electric Co., 8000 West Florissant, St.
Louis, MO 63136, Attention: H. M. Smith (facsimile: (314)
553-3713), and thereafter at such other address as may be
designated from time to time by notice given in the manner
provided in this Section 17.
(b) If to the Company, initially at PCD Inc., 2
Technology Drive, Peabody, MA 01960, Attention: Chairman
(facsimile: 978-532-6800), and thereafter at such other
address as may be designated from time to time by notice
given in the manner provided in this Section 17.
(c) All such notices and other communications
shall be deemed to have been delivered and received (i) in
the case of personal delivery, telex, telecopier or
telegram, on the date of such delivery, (ii) in the case of
air courier, on the business day after the date when sent,
and (iii) in the case of mailing, on the third business day
following such mailing.
(d) From time to time as the Company may
request, each Holder shall provide to the Company such
evidence or documentation reasonably satisfactory to the
Company, in its sole discretion, certified by an appropriate
officer of such Holder, regarding the number of shares of
Common Stock beneficially owned by such Holder and its
status as an "affiliate" under the Securities Act.
18. SUCCESSORS AND ASSIGNS. Subject to the provisions
of Section 11 hereof, this Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of
each of the parties.
19. 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
- 14 -
be an original and all of which taken together shall constitute
one and the same agreement.
20. HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
21. GOVERNING LAW. This Agreement shall be governed
by and constructed in accordance with the laws of the
Commonwealth of Massachusetts, without regard for its choice of
law rules.
22. SEVERABILITY. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
23. ENTIRE AGREEMENT. This Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter, including, without limitation, the Prior
Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Registration Rights Agreement as of the date first written
above.
PCD INC.
By: /S/ John L. Dwight, Jr.
-------------------------------
John L. Dwight, Jr.
Chairman of the Board
EMERSON ELECTRIC CO.
By: /S/ J.D. Switzer
-------------------------------
J.D. Switzer
Senior Vice President - Development
15
Dates Referenced Herein and Documents Incorporated by Reference
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