UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
THE CERPLEX GROUP, INC.
(Name of Issuer)
COMMON STOCK
$.001 PAR VALUE
(Title of Class of Securities)
156913204
(CUSIP Number)
Thomas E. Siegler
c/o Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Tel. No.: (212) 892-3000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
July 11, 1996(1)
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D, and
is filing this statement because of Rule 13d-1(b)(3) or (4), check the
following: [ ]
Check the following box if a fee is being paid with this
statement: [ ]
- --------------
1. Pursuant to Rule 13d-3(d)(1)(i)(B), this Date of Event is sixty (60) days
prior to the date on which the holders of the Series B Stock (as defined in Item
1) will obtain the right to acquire beneficial ownership of Common Stock (as
defined in Item 1) through the conversion of the Series B Stock. See Item 3.
Exhibit Index at Page 31
Page 1 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 2 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprout Growth II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,294,600
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,294,600
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,294,600
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 3 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,480,256
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,480,256
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,480,256
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 4 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson, Lufkin & Jenrette Securities Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 25
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
25
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
less than 0.1% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
BD, CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 5 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson, Lufkin & Jenrette, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO, HC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 6 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO, HC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 7 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 8 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 9 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 9 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 10 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 10 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 11 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Uni Europe Assurance Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 11 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 12 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 12 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 13 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances I.A.R.D. Mutuelle
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 13 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 14 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 14 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 15 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 15 of 37
<PAGE>
SCHEDULE 13D
================================================================================
CUSIP No. 156913 20 4 Page 16 of 37 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont-Tonnerre, as AXA Voting Trustee
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(E) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 1,483,448
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 0
PERSON WITH -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,483,448
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,483,448 - See Item 5
(not to be construed as an admission of beneficial
ownership)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9% - See Item 5
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 16 of 37
<PAGE>
Pursuant to Item 101(a)(2)(ii) of Regulation S-T promulgated
pursuant to the Securities Exchange Act of 1934, as amended (the "Act"), this
Amendment No. 1 restates the Schedule 13D dated April 15, 1994 filed by
Donaldson, Lufkin & Jenrette, Inc., and others (as amended, the "Schedule 13D").
Item 1. Security and Issuer.
This Statement relates to the common stock, par value $0.001
per share (the "Common Stock"), of The Cerplex Group, Inc., a Delaware
corporation (the "Company"), including the Common Stock issuable upon the
conversion of outstanding Series B Preferred Stock (the "Series B Stock") and
the Common Stock issuable upon the exercise of outstanding warrants and options
beneficially owned by the Reporting Persons (as defined in Item 2 below). In
accordance with Rule 13d-3(d)(1)(i) promulgated under the Act, the shares of
Common Stock issuable upon the conversion of the Series B Stock and the exercise
of the warrants and options have been treated, for the purposes of this filing,
as Common Stock beneficially owned by certain of the Reporting Persons (as
defined in Item 2 below). The Company's principal executive offices are located
at 1382 Bell Avenue, Tustin, CA 92680.
The information set forth in the Exhibits hereto is hereby
expressly incorporated herein by reference and the responses to each item of
this Schedule 13D are qualified in their entirety by the provisions of such
Exhibits.
Page 17 of 37
<PAGE>
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) Sprout Growth II,
L.P., a Delaware limited partnership ("Growth II"); (2) DLJ Capital Corporation,
a Delaware corporation ("DLJCC"); (3) Donaldson, Lufkin & Jenrette Securities
Corporation, a Delaware corporation ("DLJSC"); (4) Donaldson, Lufkin & Jenrette,
Inc., a Delaware corporation ("DLJ"); (5) The Equitable Companies Incorporated,
a Delaware corporation ("Equitable"); (6) AXA, a societe anonyme organized under
the laws of France; (7) Finaxa, a societe anonyme organized under the laws of
France; (8) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of France; (9) AXA Assurances Vie Mutuelle, a mutual
insurance company organized under the laws of France; (10) Uni Europe Assurance
Mutuelle, a mutual insurance company organized under the laws of France; (11)
Alpha Assurances Vie Mutuelle, a mutual insurance company organized under the
laws of France; (12) Alpha Assurances I.A.R.D. Mutuelle, a mutual insurance
company organized under the laws of France, and (13) Claude Bebear, Patrice
Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of
a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust
Agreement by and among AXA and the AXA Voting Trustees dated as of May 12, 1992.
Growth II is a Delaware limited partnership formed to invest
in securities for long-term appreciation.
Page 18 of 37
<PAGE>
DLJCC is a Delaware corporation formed to make investments in
industrial and other companies to participate in the management of venture
capital pools. DLJCC is the managing general partner of Growth II and makes all
of the investment and voting decisions on the part of Growth II. DLJCC is a
wholly owned subsidiary of DLJ.
DLJSC is a Delaware corporation and is a registered
broker/dealer. DLJSC is also a wholly owned subsidiary of DLJ.
DLJ is a publicly-held Delaware corporation. DLJ, acting on
its own behalf or through its subsidiaries, is a registered broker/dealer and
registered investment adviser engaged in investment banking, institutional
trading and research, investment management and financial and correspondent
brokerage services. DLJ owns directly all of the capital stock of DLJCC and
DLJSC. The address of the principal business and principal office of each of
Growth II, DLJCC, DLJSC and DLJ is 277 Park Avenue, New York, NY 10172.
Equitable is a Delaware corporation and is a holding company.
Equitable owns, directly or indirectly, 80.2% of DLJ. The address of the
principal business and principal office of Equitable is 787 Seventh Avenue, New
York, NY 10019.
AXA is a societe anonyme organized under the laws of France
and is a holding company for an international group of insurance and related
financial services companies. As of July 1, 1996, approximately 60.7% of the
outstanding common stock as well as certain convertible preferred stock of
Equitable was beneficially owned by AXA. For insurance regulatory purposes, to
Page 19 of 37
<PAGE>
insure that certain indirect minority shareholders of AXA will not be able to
exercise control over Equitable and certain of its insurance subsidiaries, the
voting shares of Equitable capital stock beneficially owned by AXA and its
subsidiaries have been deposited into the AXA Voting Trust. For additional
information regarding the AXA Voting Trust, reference is made to the Schedule
13D filed by AXA with respect to Equitable.
Finaxa is a societe anonyme organized under the laws of France
and is a holding company. Finaxa controls approximately 30.3% of the issued
shares (representing approximately 39.4% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie
Mutuelle, Uni Europe Assurance Mutuelle, Alpha Assurances Vie Mutuelle and Alpha
Assurances I.A.R.D. Mutuelle (collectively, the "Mutuelles AXA") is a mutual
insurance company organized under the laws of France. The Mutuelles AXA are
owned by approximately 1.5 million policy holders. The Mutuelles AXA, as a
group, control, directly and indirectly, through intermediate holding companies,
approximately 38.3% of the issued shares (representing approximately 45.6% of
the voting power) of AXA. AXA is indirectly controlled by the Mutuelles AXA,
acting as a group.
Claude Bebear, Patrice Garnier and Henri de Clermont-
Tonnerre, the AXA Voting Trustees, exercise all voting rights with respect to
the shares of Equitable capital stock beneficially owned by AXA and its
subsidiaries that have been deposited in the AXA Voting Trust. The business
Page 20 of 37
<PAGE>
address, citizenship and present principal occupation of each of the AXA Voting
Trustees are set forth on Schedule K attached hereto.
The address of the principal business and principal office of
each of AXA, Finaxa and the AXA Voting Trustees is 23, avenue Matignon, 75008
Paris, France; of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances
Vie Mutuelle is 21, rue de Chateaudun, 75009 Paris, France; of each of Alpha
Assurances I.A.R.D. Mutuelle and Alpha Assurances Vie Mutuelle is Tour Franklin,
100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France; and of Uni
Europe Assurance Mutuelle is 24, rue Drouot, 75009 Paris, France.
The name, business address, citizenship, present principal
occupation or employment and the name and business address of any corporation or
organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Board of Directors or the Conseil
d'Administration (French analogue of a Board of Directors) of the Reporting
Persons are set forth on Schedules A through K, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting
Persons nor, to the best knowledge of any of the Reporting Persons, any of the
other persons listed on Schedules A through K attached hereto, has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final
Page 21 of 37
<PAGE>
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On November 19, 1993, the Company consummated a private
placement (the "Private Placement") of two series of senior subordinated notes
and Series A Preferred Stock (the "Series A Stock"). The Series A Stock was
automatically converted into Common Stock upon the consummation of the initial
public offering described below.
The Series A Stock was sold by the Company at a purchase price
of $7.50 per share. With funds from working capital, DLJCC purchased 86,268
shares of the Series A Stock. Robert Finzi, a general partner of a general
partner of Growth II and an officer of the Sprout Division of DLJCC, received
options to purchase 20,000 shares of Common Stock as a director of the Company,
the beneficial interest of which is held for DLJCC.
DLJSC acted as placement agent in connection with the Private
Placement and received a fee from the Company for its services in connection
therewith. A portion of the fee was paid in the form of a warrant to purchase
56,993 shares of the Series A Stock at an exercise price of $8.80 per share (the
"Placement Agent Warrant"). The Placement Agent Warrant was issued to DLJCC.
In January, 1994, DLJCC transferred a portion of the Placement
Agent Warrant in respect of 3,135 shares of the Series A Stock (now Common
Stock) to DLJSC as custodian for
Page 22 of 37
<PAGE>
certain employees of DLJSC and its affiliates. Upon consummation of the initial
public offering of Common Stock described below, the Placement Agent Warrant
automatically became exercisable for the same number of shares of Common Stock.
Pursuant to the terms of the Placement Agent Warrant, the number of the shares
issuable upon the exercise of the Placement Agent Warrant may be adjusted under
certain circumstances. The form of the Placement Agent Warrant is attached
hereto as Exhibit 1.
Prior to the closing of the Private Placement, the Company
offered each of its stockholders and option holders of record the right to
exchange a fixed pro rata percentage of their respective shares of Common Stock
for shares of Series A Stock. Pursuant to this recapitalization, the Company
issued 1,200,000 shares of Series A Stock to those stockholders of the Company
who wished to sell shares at the same time as the Private Placement. Of the
1,200,000 shares of Series A Stock sold by such stockholders, 847,065 shares
were purchased by Growth II. Growth II's purchase was funded from the takedown
of commitments made by the partners of Growth II to make contributions from time
to time to fund investments by Growth II.
On April 8, 1994, the Company commenced the initial public
offering of its Common Stock (the "Offering") through underwriters led by DLJSC.
DLJSC is a Delaware corporation and a registered broker/dealer. Since April 8,
1994, DLJSC has made a market in the Common Stock in the ordinary course of its
activities as a broker/dealer, and has acquired and disposed of
Page 23 of 37
<PAGE>
shares of the Common Stock. The funds for DLJSC's purchases were made available
from DLJSC's working capital.
On October 21, 1994, DLJSC and DLJCC transferred warrants
representing 3,135 and 32 shares of Common Stock, respectively, to DLJ First
ESC, L.L.C. ("ESC"), a Delaware limited liability company and an "employee
securities corporation" as defined in the Investment Company Act of 1940, as
amended. As a result, ESC holds 3,167 warrants. The forms of the warrant
certificates evidencing the number of warrants beneficially owned by DLJCC and
ESC (the "Warrant Certificates") are attached hereto as Exhibit 4.
On June 11, 1996, the Company consummated a private placement
of 8,000 shares of the Series B Stock to certain accredited investors, including
Growth II and DLJCC. Growth II and DLJCC purchased 2,269 and 231 shares of the
Series B Stock, respectively, at a price of $1,000 per share. The funds used by
Growth II and DLJCC to purchase the Series B Stock came from each respective
entity's general investment capital. No funds of any of DLJ, Equitable, AXA,
Finaxa, the Mutuelles AXA or the AXA Voting Trustees were used to purchase the
Series B Stock.
Subject to certain terms and provisions, each share of the
Series B Stock will be convertible into shares of Common Stock commencing on
September 9, 1996, ninety (90) days after the date of its issuance. Attached
hereto as Exhibits 5 and 6, respectively, are the Stock Purchase Agreement,
dated as of June 10, 1996, between the Company and the investors listed on
Schedule A attached thereto (the "Series B Stock Purchase Agreement") and
Page 24 of 37
<PAGE>
the Certificate of Designation of Preferences of Series B Preferred Stock of The
Cerplex Group, Inc., dated June 7, 1996 (the "Series B Certificate of
Designation").
Item 4. Purpose of Transaction.
Growth II and DLJCC acquired the Common Stock solely for
investment purposes. Depending on market and other conditions, Growth II and
DLJCC and DLJSC, in the ordinary course of its market-making activities, may
acquire additional shares of Common Stock for investment and/or market-making
purposes, as applicable, if such shares become available at prices that are
attractive to them, or may dispose of all or a portion of the shares of Common
Stock that they currently own or may hereafter acquire. In addition, any of the
other Reporting Persons may acquire shares of Common Stock for investment
purposes.
In connection with the Offering, the representatives of the
underwriters invoked the market stand-off provisions contained in the
Registration Rights Agreement dated as of November 19, 1993, among the Company
and the purchasers of the Series A Stock, as amended (the "Registration Rights
Agreement"). As indicated above, the Series A Stock automatically converted into
Common Stock upon the consummation of the Offering. Pursuant to such provisions,
the purchasers of the Series A Stock (including Growth II and DLJCC) agreed,
upon and to the extent requested by the underwriters, not to effect any public
sale or distribution of Common Stock or any similar securities of the Company,
or any securities convertible into or exchangeable or exercisable for such
Page 25 of 37
<PAGE>
securities, including a sale pursuant to Rule 144 under the Securities Act of
1933, for one hundred and eighty (180) days from the effective date of the
registration statement under which the Common Stock was registered. The
Registration Rights Agreement containing this market stand-off agreement, and
Amendment Nos. 1 and 2 thereto, are attached hereto as Exhibit 2.
Growth II and DLJCC acquired the Series B Stock for investment
purposes.
All shares of Common Stock acquired by DLJSC were acquired in
the ordinary course of its market-making activities in such shares.
Item 5. Interest in the Securities of the Issuer.
Growth II may be deemed to be the beneficial owner of the
847,065 shares of Common Stock owned directly by it and the 2,269 shares of the
Series B Stock owned directly by it. Each share of the Series B Stock is
convertible into the number of shares of Common Stock equal to $1,000 divided by
the lesser of (i) 80% of the average closing bid price of the Common Stock for
the ten (10) trading days ending three (3) days prior to the date of the notice
of conversion; or (ii) $5.07 (as adjusted for stock dividends, combinations or
splits of Common Stock) (the "Conversion Rate"). Assuming the conversion of the
Series B Stock at the rate of $1,000 divided by $5.07 (the "Assumed Conversion
Rate"), Growth II may be deemed to beneficially own an aggregate of 1,294,600
shares of Common Stock (the "Growth II Shares"), or approximately 8.6% of the
Page 26 of 37
<PAGE>
outstanding Common Stock. Growth II has the sole power to vote and the sole
power to dispose of the Growth II Shares.
DLJCC may be deemed to be the beneficial owner of the 86,268
shares of Common Stock owned directly by it, the 53,826 shares of Common Stock
issuable upon the exercise of warrants to purchase Common Stock and the 231
shares of the Series B Stock owned directly by it. Assuming the conversion of
the Series B Stock at the Assumed Conversion Rate, DLJCC may be deemed to
beneficially own directly an aggregate of 185,656 shares of Common Stock. As the
managing general partner of Growth II, DLJCC also may be deemed, for the
purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Growth
II Shares for an aggregate of 1,480,256 shares of Common Stock (the "DLJCC
Shares"), or approximately 9.9% of the outstanding Common Stock. DLJCC has the
sole power to vote and the sole power to dispose of the DLJCC Shares owned
directly by it.
DLJSC may be deemed to be the beneficial owner of the 25
shares of Common Stock owned directly by it (the "DLJSC Shares"), or less than
0.1% of the outstanding Common Stock as of the close of business on July 26,
1996. DLJSC has the sole power to vote and the sole power to dispose of the
DLJSC Shares owned directly by it.
As the sole stockholder of DLJCC and DLJSC, DLJ may be deemed,
for the purposes of Rule 13d-3 under the Act, to beneficially own indirectly the
DLJCC Shares and the DLJSC Shares. In addition, ESC owns warrants to purchase
3,167 shares of Common Stock (the "ESC
Page 27 of 37
<PAGE>
Shares"). Because of DLJ's ownership of DLJ LBO Plans Management Corporation,
which is the manager of ESC and a wholly-owned indirect subsidiary of DLJ, DLJ
may also be deemed, for the purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the ESC Shares, for an aggregate of 1,483,448 shares
of Common Stock (the "DLJ Shares"), or approximately 9.9% of the outstanding
Common Stock.
Because of Equitable's ownership interest in DLJ, Equitable
may be deemed, for the purposes of Rule 13d-3 under the Act, to beneficially own
indirectly the DLJ Shares.
Because of AXA's ownership interest in Equitable, and the AXA
Voting Trustees' power to vote the Equitable shares placed in the AXA Voting
Trust, each of AXA and the AXA Voting Trustees may be deemed, for the purposes
of Rule 13d-3 under the Act, to beneficially own indirectly the shares of Common
Stock that Equitable may be deemed to beneficially own indirectly. Because of
the direct and indirect ownership interest in AXA of Finaxa and the Mutuelles
AXA, each of Finaxa and the Mutuelles AXA may be deemed, for the purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the shares of Common
Stock that AXA may be deemed to beneficially own indirectly. AXA, Finaxa, the
Mutuelles AXA and the AXA Voting Trustees disclaim beneficial ownership of any
shares of Common Stock.
The Reporting Persons, in the aggregate, may be deemed to
beneficially own 1,483,448 shares of Common Stock or approximately 9.9% of the
outstanding Common Stock. The percentage of outstanding shares of Common Stock
reported as beneficially owned by each
Page 28 of 37
<PAGE>
Reporting Person herein on the date hereof is based upon (a) the 13,397,425
shares of Common Stock outstanding as of June 11, 1996 based upon information
furnished on behalf of the Company and (b) the conversion of all of the
Company's outstanding Series B Stock, which votes together with the Common Stock
on an as-converted basis (based on the Assumed Conversion Rate), or 1,577,909
shares of Common Stock, and assumes the issuance of shares of Common Stock
underlying the warrants held by DLJCC and ESC.
DLJSC has been a market-maker in the Common Stock, and in the
ordinary course of its market-making activities has acquired and disposed of
shares at prices ranging from $5.75 to $7.125 per share during the period of May
27, 1996 to July 26, 1996.
Except as disclosed above, no transactions in the Common
Stock, the Series B Stock or options or warrants to acquire Common Stock have
been effected since July 26, 1996 by the Reporting Persons, any other person
controlling the Reporting Persons, or any of the persons named in Schedules A
through K.
In addition, as of July 26, 1996, Robert Finzi holds for the
beneficial interest of DLJCC options to purchase 30,000 shares of Common Stock
which he received in his capacity as a director of the Company. On August 22,
1996, the Company is expected to grant Mr. Finzi an option to purchase an
additional 10,000 shares of Common Stock. Mr. Finzi also owns directly 3,500
shares of Common Stock.
Page 29 of 37
<PAGE>
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Issuer.
Reference is made to the Registration Rights Agreement,
and Amendment Nos. 1 and 2 thereto, which are attached hereto as
Exhibit 2.
The purchasers of the Series A Stock (including Growth II and
DLJCC) agreed to certain restrictions with respect to the transfer of their
shares pursuant to market stand-off provisions in the Registration Rights
Agreement. See Item 4 above for a description of these market stand-off
provisions.
The registration Rights Agreement was further amended pursuant
to Amendment Nos. 3 and 4 thereto, which are attached hereto as Exhibit 7.
Except for the agreements described in this Item 6 and the
relationships described in Item 2 above, to the best knowledge of the Reporting
Persons, there are no contracts, arrangements, understandings or relationships
(legal or otherwise) between the persons enumerated in Item 2 above, and any
other person, with respect to any securities of the Company, including, but not
limited to, transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Page 30 of 37
<PAGE>
Item 7. Material to be filed as Exhibits.
Exhibit 1*: Form of Placement Agent Warrant (filed in
paper form as Exhibit 1 to the Schedule 13D
of the Reporting Persons dated April 15,
1994).
Exhibit 2*: Registration Rights Agreement, as amended by
Amendment Nos. 1 and 2 (filed in paper form
as Exhibit 2 to the Schedule 13D of the
Reporting Persons dated April 15, 1994).
Exhibit 3*: Joint Filing Agreement (filed in paper form
as Exhibit 3 to the Schedule 13D of the
Reporting Persons dated April 15, 1994).
Exhibit 4: Forms of Warrant Certificates, dated
November 29, 1994, evidencing 53,826 and
3,167 warrants issued to DLJCC and ESC,
respectively.
Exhibit 5: The Series B Stock Purchase Agreement.
Exhibit 6: The Series B Certificate of Designation.
Exhibit 7: Amendment Nos. 3 and 4 to the Registration
Rights Agreement.
Exhibit 8: Joint Filing Agreement.
Exhibit 9: Powers of Attorney.
- -------------------
* Incorporated by reference herein pursuant to Rule 102(a) of Regulation S-T
promulgated under the Act.
Page 31 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the information set forth in this statement is true,
complete and correct.
Dated: August 6, 1996
Sprout Growth II, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
/s/ Thomas E. Siegler
____________________________________
Thomas E. Siegler
Secretary and Treasurer
Page 32 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the information set forth in this statement is true,
complete and correct.
Dated: August 6, 1996
DLJ Capital Corporation
/s/ Thomas E. Siegler
_________________________________
Thomas E. Siegler
Secretary and Treasurer
Page 33 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the information set forth in this statement is true,
complete and correct.
Dated: August 6, 1996
Donaldson, Lufkin & Jenrette
Securities Corporation
/s/ Thomas E. Siegler
____________________________________
Thomas E. Siegler
Senior Vice President
Page 34 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth in
this statement is true, complete and correct.
Date: August 6, 1996
Donaldson, Lufkin & Jenrette, Inc.
/s/ Thomas E. Siegler
____________________________________
Thomas E. Siegler
Senior Vice President
Page 35 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the information set forth in this statement is true,
complete and correct.
Dated: August 6, 1996
The Equitable Companies Incorporated
/s/ Alvin H. Fenichel
____________________________________
Alvin H. Fenichel
Senior Vice President and Controller
Page 36 of 37
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the information set forth in this statement is true,
complete and correct.
Dated: August 6, 1996
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
Uni Europe Assurance Mutuelle
Alpha Assurances I.A.R.D. Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
/s/ Richard V. Silver
______________________________
Richard V. Silver
Attorney-in-fact
Page 37 of 37
<PAGE>
SCHEDULE A
Executive Officers and Directors
of
DLJ Capital Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Corporation ("DLJCC") and their business addresses and
principal occupations are set forth below. Each Director's or Executive
Officer's business address is that of DLJCC at 277 Park Avenue, New York, NY
10172. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to DLJCC and each individual is a United States
citizen.
Name, Business Address Present Principal Occupation
* Richard E. Kroon President and Chief
Executive Officer
* Anthony F. Daddino Vice President;
Executive
Vice President and
Chief Financial Officer,
Donaldson, Lufkin &
Jenrette, Inc.
* Thomas E. Siegler Secretary and
Treasurer;
Senior Vice President
and Secretary, Donaldson,
Lufkin & Jenrette, Inc.
- --------------------------
* Director
A-1
<PAGE>
SCHEDULE B
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette Securities Corporation
The names of the Directors and the names and titles of the
Executive Officers of Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC") and their business addresses and principal occupations are set forth
below. If no address is given, the Director's or Executive Officer's business
address is that of DLJSC at 277 Park Avenue, New York, NY 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to DLJSC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
* John S. Chalsty Chairman and Chief
Executive Officer;
Chairman and Chief
Executive Officer,
Donaldson, Lufkin &
Jenrette, Inc.
* Joe L. Roby President and Chief
Operating Officer;
President and Chief
Operating Officer,
Donaldson, Lufkin &
Jenrette, Inc.
* Carl B. Menges Vice Chairman of the
Board;Vice Chairman
of the Board,
Donaldson, Lufkin
& Jenrette, Inc.
* Hamilton E. James Managing Director;
Managing Director,
Donaldson, Lufkin &
Jenrette, Inc.
B-1
<PAGE>
* Richard S. Pecther Managing Director;
Managing Director,
Donaldson, Lufkin &
Jenrette, Inc.
* Theodore P. Shen Managing Director;
Managing Director,
Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice
President and Chief
Financial Officer;
Executive Vice
President and Chief
Financial Officer,
Donaldson, Lufkin &
Jenrette, Inc.
- -------------------
* Director
B-2
<PAGE>
SCHEDULE C
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive Officers
of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business addresses and
principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJ at 277 Park
Avenue, New York, NY 10172. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to DLJ and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
* John S. Chalsty Chairman and Chief
Executive Officer
* Joe L. Roby President and Chief
Operating Officer
* Claude Bebear (1) Chairman and Chief
AXA Executive Officer, AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Executive Vice President
AXA Financial Services and
23, avenue Matignon Life Insurance Activities,
75008 Paris, France AXA
* Kevin Dolan Executive Vice President,
AXA Asset Management AXA Asset Management
40, rue de Collissee
75008 Paris, France
* Louis Harris Chairman and Chief
LH Research Executive Officer, LH
152 East 38th Street Research (research)
New York, New York 10016-
2605
C-1
<PAGE>
* Henri G. Hottingeur (2) Chairman and Chief
Banque Hottingeur Executive Officer, Banque
38, rue de Provence Hottingeur (banking)
75009 Paris, France
* W. Edwin Jarmain (3) President, Jarmain Group
Jarmain Group Inc. Inc. (private investment
95 Wellington Street holding company)
West Suite 805
Toronto, Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Joseph J. Melone President and Chief
The Equitable Companies Executive Officer, The
Incorporated Equitable Companies
787 Seventh Avenue Incorporated
New York, New York 10019
* W. J. Sanders, III Chairman and Chief
Advanced Micro Devices, Executive Officer,
Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Jerry M. de St. Paer Executive Vice President
The Equitable Companies and Chief Financial
Incorporated Officer, The Equitable
787 Seventh Avenue Companies Incorporated
New York, New York 10019
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC
29928
* Carl B. Menges Vice Chairman of the Board
* Hamilton E. James Managing Director
* Richard S. Pecther Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President
and Chief Financial
Officer
* Robert J. Albano Senior Vice President and
Director of Compliance and
Regulatory Affairs
C-2
<PAGE>
Michael M. Bendik Senior Vice President and
Chief Accounting Officer
Michael A. Boyd Senior Vice President and
General Counsel
Joseph D. Donnelly Senior Vice President and
One Pershing Plaza Associate General Counsel
Jersey City, NJ 07599
Stuart S. Flamberg Senior Vice President and
Director of Taxes
Roy A. Garman Senior Vice President and
Controller
Charles J. Hendrickson Senior Vice President and
Treasurer
Gerald B. Rigg Senior Vice President and
Director of Human
Resources
Thomas E. Siegler Senior Vice President and
Secretary
Lucia D. Swanson Senior Vice President and
Associate General Counsel
- ----------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
C-3
<PAGE>
SCHEDULE D
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the
Executive Officers of The Equitable Companies Incorporated ("Equitable") and
their business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is that
of Equitable at 787 Seventh Avenue, New York, NY 10019. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
Equitable and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
* Claude Bebear (1) Chairman of the Board;
AXA Chairman and Chief
23, avenue Matignon Executive Officer, AXA
75008 Paris, France
* James M. Benson Senior Executive Vice
President and Chief
Operating Officer;
President and Chief
Executive Officer, The
Equitable Life Assurance
Society of the United
States
* Henri de Castries (1) Vice Chairman of the
AXA Board; Executive Vice
23, avenue Matignon President, Financial
75008 Paris, France Services and Life
Insurance Activities
outside France, AXA
D-1
<PAGE>
* John S. Chalsty Chairman and Chief
Donaldson, Lufkin & Executive Officer,
Jenrette, Inc. Donaldson, Lufkin &
277 Park Avenue Jenrette, Inc.
New York, NY 10172
Jerry M. de St. Paer Senior Executive Vice
President and Chief
Financial Officer;
Executive Vice President,
The Equitable Life
Assurance Society of
the United States
* Joseph L. Dionne Chairman and Chief
The McGraw Hill Companies Executive Officer, The
1221 Avenue of the McGraw Hill Companies
Americas (publishing)
New York, NY 10020
* William T. Esrey Chairman of the Board and
Sprint Corporation Chief Executive Officer,
P.O. Box 11315 The Sprint Corporation
Kansas City, MO 64112 (telecommunications)
* Jean-Rene Fourtou (1) Chairman and Chief
Rhone-Poulenc S.A. Executive Officer, Rhone-
25 quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie,
France
Robert E. Garber Executive Vice President
and General Counsel
* Donald J. Greene Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene & Greene & MacRae (law firm)
MacRae
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman, Fox-Pitt,
35 Wilson Street Kelton Limited (Finance)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief
Harris Corporation Executive Officer, Harris
1025 Nasa Boulevard Corporation (manufacturer
Melbourne, FL 32919 of electronic, telephone
and copying systems)
D-2
<PAGE>
* John H. F. Haskell, Jr. Director and Managing
Dillon, Read & Co., Inc. Director, Dillon, Read &
535 Madison Avenue Co., Inc. (investment
New York, NY 10028 banking firm)
* W. Edwin Jarmain (3) President, Jarmain Group
Jarmain Group Inc. Inc. (private investment
95 Wellington St. West holding company)
Suite 805
Toronto, Ontario M5J 2N7
Canada
* Winthrop Knowlton Chairman, Knowlton
Knowlton Brothers, Inc. Brothers, Inc. (private
530 Fifth Avenue investment firm);
New York, NY 10036 President and Chief
Executive Officer,
Knowlton Associates, Inc.
(consulting firm)
* Arthur L. Liman Partner, Paul, Weiss,
Paul, Weiss, Rifkind, Rifkind, Wharton &
Wharton & Garrison Garrison (law firm)
1285 Avenue of the
Americas
New York, NY 10019
William T. McCaffrey Executive Vice President
and Chief Administrative
Officer; Senior Executive
Vice President and Chief
Operating Officer, The
Equitable Life Assurance
Society of the United
States
* Joseph J. Melone Chief Executive Officer
and President; Chairman
of the Board, The
Equitable Life Assurance
Society of the United
States
Peter D. Noris Executive Vice President
and Chief Investment
Officer; Executive Vice
President and Chief
Investment Officer, The
Equitable Life Assurance
Society of the United
States
D-3
<PAGE>
* Didier Pineau-Valencienne Chairman and Chief
64-70, avenue Jean Executive Officer,
Baptiste Clement Schneider S.A. (electric
92646 Boulogne Cedex, equipment)
France
* George J. Sella, Jr. Retired Chairman,
American Cyanamid Company President and Chief
P.O. Box 3017 Executive Officer,
Newton, NJ 07860 American Cyanamid Company
(manufacturer
pharmaceutical products
and agricultural products)
Jose Suquet Executive Vice President;
Executive Vice President
and Chief Agency Officer;
The Equitable Life
Assurance Society of the
United States
Stanley B. Tulin Executive Vice President;
Senior Executive Vice
President and Chief
Financial Officer, The
Equitable Life Assurance
Society of the United
States
* Dave H. Williams Chairman and Chief
Alliance Capital Executive Officer,
Management Corporation Alliance Capital
1345 Avenue of the Management Corp.
Americas (investment company)
New York, NY 10105
- --------------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
D-4
<PAGE>
SCHEDULE E
Executive Officers and
Members of Conseil d'Administration
of
AXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of AXA at 23, avenue Matignon,
75008 Paris, France. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to AXA and each individual is a citizen of
the Republic of France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief
Executive Officer
* Antoine Bernheim Chairman, Assicurazioni
Piazza Duca Degli Abruzzi Generali S.p.A.
2 (insurance)
34132 Trieste, Italy
Henri de Castries Executive Vice President,
Financial Services and
Life Insurance Activities
outside France
Francoise Colloc'h Executive Vice President,
Human Resources and Public
Relations
* Henri de Clermont-Tonnerre Chairman, Societe
90, rue de Miromesnil d'Armement et de
75008 Paris, France Navigation Charles
Schiaffino
(transportation)
E-1
<PAGE>
* David Dautresme General Partner, Lazard
121, Boulevard Haussman Freres et Cie (investment
75008 Paris, France banking)
* Jean-Rene Fourtou Chairman and Chief
25, quai Paul Doumer Executive Officer, Rhone-
92408 Courbevoie, France Poulenc S.A. (industry)
* Michel Francois-Poncet Chairman of the
3, rue d'Autin Supervisory Board of
75002 Paris, France Compagnie Financiere
Paribas and Banque Paribas
(financial services and
banking)
* Patrice Garnier Retired
* Gianfranco Gutty (1) Director and Executive
Piazza Duca Degli Abruzzi Officer, Assicurazioni
2 Generali S.p.A.
34132 Trieste, Italy (insurance)
* Anthony J. Hamilton (2) Group Chairman, Fox-Pitt,
35 Wilson Street Kelton Limited (Finance)
London, England EC2M 2SJ
* Henri Hottinguer (3) Chairman and Chief
38, rue de Provence Executive Officer, Banque
75009 Paris, France Hottinguer (banking)
* Richard H. Jenrette (4) Retired Chairman, The
787 Seventh Avenue Equitable Companies
New York, NY 10019 Incorporated
* Henri Lachmann Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor
67000 Strasbourg, France Facom (office furniture)
Gerard de la Martiniere Executive Vice President,
Chief Financial Officer
* Didier Pineau-Valencienne Chairman and Chief
64-70, avenue Jean Executive Officer,
Baptiste Clement Schneider S.A. (electric
92646 Boulogne Cedex, equipment)
France
E-2
<PAGE>
Claude Tendil Executive Vice President,
French Insurance
Activities and Non-Life
and Composite Insurance
Activities outside France
- -------------------------
* Member, Conseil d'Administration
(1) Citizen of Italy
(2) Citizen of the United Kingdom
(3) Citizen of Switzerland
(4) Citizen of the United States of America
E-3
<PAGE>
SCHEDULE F
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of Finaxa at 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Finaxa and each individual is a
citizen of the Republic of France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief
Executive Officer;
Chairman and Chief
Executive Officer, AXA
* Henri de Castries Executive Vice President,
Financial Services and
Life Insurance Activities
outside France, AXA
* Henri de Clermont-Tonnerre Chairman, Societe
90, rue de Miromesnil d'Armement et de
75008 Paris, France Navigation Charles
Schiaffino
(transportation)
* Jean-Rene Fourtou Chairman and Chief
25, quai Paul Doumer Executive Officer, Rhone-
92408 Courbevoie, France Poulenc S.A. (industry)
* Patrice Garnier Retired
* Henri Hottinguer (1) Chairman and Chief
38, rue de Provence Executive Officer, Banque
75009 Paris, France Hottinguer (banking)
F-1
<PAGE>
* Paul Hottinguer (1) Assistant Chairman and
38, rue de Provence Chief Executive Officer,
75009 Paris, France Banque Hottinguer
(banking)
* Henri Lachmann Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor
67000 Strasbourg, France Facom (office furniture)
Gerard de la Martiniere Chief Executive Officer;
Executive Vice President,
Chief Financial Officer,
AXA
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
- ------------------------------------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
F-2
<PAGE>
SCHEDULE G
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
Jean-Luc Bertozzi Assistant Chief Executive
Officer
* Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities outside
France, AXA
* Jean-Pierre Chaffin Manager, Federation de la
5, rue la Bruyere Metallurgie (industry)
75009 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
* Patrice Garnier Retired
G-1
<PAGE>
* Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
* Francois Richer Retired
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer;
21, rue de Chateaudun Executive Vice President,
75009 Paris, France French Insurance
Activities and Non-Life
and Composite
Insurance Activities
outside France, AXA
* Nicolas Thiery Chairman and Chief Executive
6 Cite de la Chapelle Officer, Etablissements
75018 Paris, France Jaillard (management
consulting)
* Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les S.A. (coffee importing and
Rouen, France processing)
- -------------------------------------
* Member, Conseil d'Administration
G-2
<PAGE>
SCHEDULE H
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of AXA Assurances Vie Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
Jean-Luc Bertozzi Assistant Chief Executive
Officer
* Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
outside France, AXA
* Jean-Pierre Chaffin Manager, Federation de la
5, rue la Bruyere Metallurgie (industry)
75009 Paris, France
* Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino
(transportation)
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
H-1
<PAGE>
* Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
* Francois Richer Retired
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer;
21, rue de Chateaudun Executive Vice President,
75009 Paris, France French Insurance
Activities and Non-Life
and Composite
Insurance Activities
outside France, AXA
* Nicolas Thiery Chairman and Chief Executive
6 Cite de la Chapelle Officer, Etablissements
75018 Paris, France Jaillard (management
consulting)
* Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les S.A. (coffee importing
Rouen, France and processing)
- -------------------------------------
* Member, Conseil d'Administration
H-2
<PAGE>
SCHEDULE I
Executive Officers and
Members of Conseil d'Administration
of
UNI EUROPE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of Uni Europe Assurance Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Uni Europe Assurance Mutuelle at 24, rue Drouot, 75009 Paris, France. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to Uni Europe Assurance Mutuelle and each individual is a citizen of the
Republic of France.
Name, Business Address Present Principle Occupation
* Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
* Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities outside
France, AXA
* Francis Cordier Chairman and Chief Executive
rue Nicephone Niepce BP Officer, Group Demay Lesieur
232 76304 Sotteville Les (food industry)
Rouen, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
* Patrice Garnier Retired
* Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
I-1
<PAGE>
* Francis Magnan Chairman and Chief Executive
50, boulevard des Dames Officer, Groupe Daher (air
13002 Marseille, France and sea transportation)
* Jean de Ribes Chief Executive Officer,
13, rue Notre Dame des Banque Rivaud (banking)
Victoires 75008 Paris,
France
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
* Jean-Paul Saillard Corporate Secretary, AXA
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer;
21, rue de Chateaudun Executive Vice President,
75009 Paris, France French Insurance Activities
and Non-Life and Composite
Insurance Activities outside
France, AXA
- --------------------------------------
* Member, Conseil d'Administration
I-2
<PAGE>
SCHEDULE J
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of Alpha
Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11,
92042 Paris La Defense, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and
each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
* Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities outside
France, AXA
* Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino
(transportation)
* Claude Fath Manager
* Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
* Patrice Garnier Retired
* Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
J-1
<PAGE>
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer;
21, rue de Chateaudun Executive Vice President,
75009 Paris, France French Insurance Activities
and Non-Life and Composite
Insurance Activities
outside France, AXA
* Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les Rouen S.A. (coffee importing
France and processing)
- -------------------------------------
* Member, Conseil d'Administration
J-2
<PAGE>
SCHEDULE K
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of Alpha Assurances I.A.R.D. Mutuelle
and their business addresses and principal occupations are set forth below. If
no address is given, the Member's or Executive Officer's business address is
that of Alpha Assurances I.A.R.D. Mutuelle at Tour Franklin, 100/101 Terrasse
Boieldieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to Alpha
Assurances I.A.R.D. Mutuelle and each individual is a citizen of the Republic of
France.
Name, Business Address Present Principal Occupation
* Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
* Henri Brischoux Manager, AXA
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities outside
France, AXA
* Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino
(transportation)
* Bernard Cornille Audit Manager, AXA
21, rue de Chateaudun
75009 Paris, France
* Claude Fath Manager
K-1
<PAGE>
* Patrice Garnier Retired
* Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
* Claude Peter Retired
* Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer;
21, rue de Chateaudun Executive Vice President,
75009 Paris, France French Insurance
Activities and Non-Life
and Composite
Insurance Activities
outside France, AXA
--------------------------------------
* Member, Conseil d'Administration
K-2
<PAGE>
EXHIBIT 4
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN ANY
TRANSACTION UNLESS FIRST REGISTERED UNDER SUCH LAWS OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS.
WARRANT CERTIFICATE
THE CERPLEX GROUP, INC.
No. WR-SA05 53,826 Warrants
Date: November 29, 1994
This WARRANT CERTIFICATE certifies that DLJ Capital Corporation
("Agent") or registered assigns, is the registered holder of Fifty-Three
Thousand Eight Hundred Twenty-Six (53,826) Warrants. Each Warrant entitles the
owner thereof to purchase, at any time on or after the Closing Date (as such
term is defined in the Warrant Agreement referred to below) and prior to 5:00
p.m. (Los Angeles, California time) on the Termination Date (as such term is
defined in the Warrant Agreement referred to below), one fully paid and
nonassessable share of Common Stock (as such term is defined in the Warrant
Agreement referred to below) of THE CERPLEX GROUP, INC., a Delaware corporation
(the "Company"), at an initial purchase price of Eight Dollars and Eight Cents
($8.08) per share of Common Stock (the "Purchase Price") upon (i) presentation
and surrender of this Warrant Certificate with a form of election to purchase
duly executed and (ii) satisfaction of the Purchase Price in the manner set
forth in the Warrant Agreement. The number of shares of Common Stock that may be
purchased upon exercise of each Warrant, and the Purchase Price, are the number
and the Purchase Price as of the date hereof and are subject to adjustment under
certain circumstances as provided in the Warrant Agreement referred to below.
The Warrants are issued pursuant to the Placement Agent Warrant
Purchase Agreement, dated as of November 19, 1993 (as amended from time to time,
the "Warrant Agreement"), between the Company and Agent, and are subject to all
of the terms, provisions and conditions thereof, which Warrant Agreement is
hereby incorporated herein by reference and made a part hereof and to which
Warrant Agreement reference is hereby made for a full description of the rights,
obligations, duties and immunities of the Company and the holders of the Warrant
Certificates. Capitalized terms used, but not defined, herein have the meanings
assigned to them in the Warrant Agreement.
4-1
<PAGE>
This Warrant Certificate shall be exercisable, at the election of the
holder, either as an entirety or in part from time to time. If this Warrant
Certificate shall be exercised in part, the holder shall be entitled to receive,
upon surrender hereof, another Warrant Certificate or Warrant Certificates for
the number of Warrants not exercised. This Warrant Certificate, with or without
other Warrant Certificates, upon surrender at the office of the Company referred
to in Section 1.2(b) of the Warrant Agreement, may be exchanged for another
Warrant Certificate or Warrant Certificates of like tenor evidencing Warrants
entitling the holder to purchase a like aggregate number of shares of Common
Stock as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered shall have entitled such holder to purchase.
Except as expressly set forth in the Warrant Agreement, no holder of
this Warrant Certificate shall be entitled to any right to vote or receive
dividends or be deemed for any purpose the holder of shares of Common Stock or
of any other Securities of the Company that may at any time be issued upon the
exercise hereof, nor shall anything contained in the Warrant Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
holder of a share of Common Stock in the Company or any right to vote upon any
matter submitted to holders of shares of Common Stock at any meeting thereof, or
to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of Securities, change of
par value, consolidation, merger, conveyance, or otherwise) or, except as
provided in the Warrant Agreement, to receive notice of meetings, or to receive
dividends or subscription rights, or otherwise, until the Warrant or Warrants
evidenced by this Warrant Certificate shall have been exercised as provided in
the Warrant Agreement.
THIS WARRANT CERTIFICATE AND THE WARRANT AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, INTERNAL NEW YORK LAW.
WITNESS the signature of a proper officer of the Company as of the date
first above written.
THE CERPLEX GROUP, INC.
By__________________________________
Bruce Nye, Chief Financial Officer
ATTEST:
___________________________________
Frederic A. Randall, Jr., Secretary
4-2
<PAGE>
EXHIBIT 4
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN ANY
TRANSACTION UNLESS FIRST REGISTERED UNDER SUCH LAWS OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS.
WARRANT CERTIFICATE
THE CERPLEX GROUP, INC.
No. WR-SA04 3,167 Warrants
Date: November 29, 1994
This WARRANT CERTIFICATE certifies that DLJ First ESC L.L.C. ("Holder")
or registered assigns, is the registered holder of Three Thousand One Hundred
Sixty-Seven (3,167) Warrants. Each Warrant entitles the owner thereof to
purchase, at any time on or after the Closing Date (as such term is defined in
the Warrant Agreement referred to below) and prior to 5:00 p.m. (Los Angeles,
California time) on the Termination Date (as such term is defined in the Warrant
Agreement referred to below), one fully paid and nonassessable share of Common
Stock (as such term is defined in the Warrant Agreement referred to below) of
THE CERPLEX GROUP, INC., a Delaware corporation (the "Company"), at an initial
purchase price of Eight Dollars and Eight Cents ($8.08) per share of Common
Stock (the "Purchase Price") upon (i) presentation and surrender of this Warrant
Certificate with a form of election to purchase duly executed and (ii)
satisfaction of the Purchase Price in the manner set forth in the Warrant
Agreement. The number of shares of Common Stock that may be purchased upon
exercise of each Warrant, and the Purchase Price, are the number and the
Purchase Price as of the date hereof and are subject to adjustment under certain
circumstances as provided in the Warrant Agreement referred to below.
The Warrants are issued pursuant to the Placement Agent Warrant
Purchase Agreement, dated as of November 19, 1993 (as amended from time to time,
the "Warrant Agreement"), between the Company and DLJ Capital Corporation, and
are subject to all of the terms, provisions and conditions thereof, which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, obligations, duties and immunities of the Company and
the holders of the Warrant Certificates. Capitalized terms used, but not
defined, herein have the meanings assigned to them in the Warrant Agreement.
This Warrant Certificate shall be exercisable, at the election of the
holder, either as an entirety or in part from time to time. If this Warrant
Certificate shall be exercised in
4-3
<PAGE>
part, the holder shall be entitled to receive, upon surrender hereof, another
Warrant Certificate or Warrant Certificates for the number of Warrants not
exercised. This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the office of the Company referred to in Section 1.2(b) of the
Warrant Agreement, may be exchanged for another Warrant Certificate or Warrant
Certificates or like tenor evidencing Warrants entitling the holder to purchase
a like aggregate number of shares of Common Stock as the Warrants evidenced by
the Warrant Certificate or Warrant Certificates surrendered shall have entitled
such holder to purchase.
Except as expressly set forth in the Warrant Agreement, no
holder of this Warrant Certificate shall be entitled to any right to vote or
receive dividends or be deemed for any purpose the holder of shares of Common
Stock or of any other Securities of the Company that may at any time be issued
upon the exercise hereof, nor shall anything contained in the Warrant Agreement
or herein be construed to confer upon the holder hereof, as such, any of the
rights of a holder of a share of Common Stock in the Company or any right to
vote upon any matter submitted to holders of shares of Common Stock at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of Securities,
change of par value, consolidation, merger, conveyance, or otherwise) or, except
as provided in the Warrant Agreement, to receive notice of meetings, or to
receive dividends or subscription rights, or otherwise, until the Warrant or
Warrants evidenced by this Warrant Certificate shall have been exercised as
provided in the Warrant Agreement.
THIS WARRANT CERTIFICATE AND THE WARRANT AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, INTERNAL NEW YORK LAW.
WITNESS the signature of a proper officer of the Company as of the date
first above written.
THE CERPLEX GROUP, INC.
By__________________________________
Bruce Nye, Chief Financial Officer
ATTEST:
___________________________________
Frederic A. Randall, Jr., Secretary
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EXHIBIT 5
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of this 10th day of
June, 1996 between The Cerplex Group, Inc., a Delaware corporation (the
"Company") and the investors listed on Schedule A attached hereto (individually
an "Investor" and collectively the "Investors").
WHEREAS, the Company intends to sell to the Investors, and the
Investors desire to purchase from the Company, shares of Series B Preferred
Stock convertible into Common Stock; and
WHEREAS, concurrently with the execution of this Agreement,
the Company and the Investors have entered into an agreement in the form
attached hereto as Exhibit A granting certain registration rights to the
Investors (the "Registration Rights Agreement"), such agreement being entered
into by the parties hereto and concurrently herewith.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and conditions set forth below, and in reliance on the representations
and warranties herein provided, the parties intending to be legally bound agree
as follows:
1. Purchase and Sale.
(a) The Purchase. Subject to the terms and
conditions of this Agreement, each Investor agrees, severally, to purchase at
the Closing, and the Company agrees to sell and issue to each Investor at the
Closing, at a price per share of $1,000.00, that number of shares of the
Company's Series B Preferred Stock (the "Preferred Stock"), set forth opposite
each Investor's name on Schedule A hereto for the aggregate purchase price set
forth therein. The Company intends to sell a maximum of 8,000 shares of the
Preferred Stock for an aggregate maximum purchase price equal to $8,000,000.
(b) The Closing. The purchase and sale of the
Preferred Stock shall take place at the offices of Stradling, Yocca, Carlson &
Rauth, 660 Newport Center Drive, Suite 1600, Newport Beach, California, at 11:00
a.m. on June 10, 1996, or at such other time and place as the Company and
Investors acquiring in the aggregate more than half the shares of the Preferred
Stock sold pursuant hereto mutually agree upon orally or in writing (which time
and place are designated as the "Closing"). At the Closing, the Company shall
deliver to each Investor a certificate registered in such Investor's name,
representing the Preferred Stock which such Investor is purchasing against
delivery to the Company by such Investor of a check or wire transfer in the
amount of the purchase price therefor payable to the Company's order.
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2. Conditions to Obligations.
(a) Conditions to the Investors' Obligations.
The obligation of the Investors to purchase and pay for the Preferred Stock
contemplated by Section 1 at the Closing shall be subject to the satisfaction of
each of the following conditions precedent, the waiver of which shall not be
effective against any Investor who does not consent in writing thereto:
(i) Representations and Warranties. Each of
the representations and warranties of the Company set forth in Section 3 shall
be true and correct as if made at the Closing.
(ii) Performance. The Company shall have
performed and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or
before the Closing.
(iii) Certificate of Designation of
Preferences. The Certificate of Designation of Preferences of Series B Preferred
Stock substantially in the form of Exhibit B attached hereto (the "Certificate
of Designation") shall have been duly adopted by the Board of Directors of the
Company and filed with the Delaware Secretary of State.
(iv) Compliance Certificate. The Chief
Executive Officer, Chief Operating Officer or Chief Financial Officer of the
Company shall deliver to each Investor at the Closing a certificate certifying
that the conditions specified in subsections (i) and (ii) of this section 2(a)
have been fulfilled.
(v) Opinion of Counsel to the Company. Each
Investor shall have received from Brobeck, Phleger & Harrison, counsel for the
Company, an opinion dated as of the Closing, substantially in the form set forth
in Exhibit C attached hereto.
(vi) Qualifications. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful issuance and sale of the Preferred Stock to the Investors pursuant to
this Agreement shall have been duly obtained and shall be effective on and as of
the Closing, except for any post-sale filings that may be required under federal
and state securities laws.
(vii) Proceedings and Documents. All
corporate and other proceedings in connection with the transactions contemplated
at the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to each Investor and the Investors' counsel,
and they shall have received all such counterpart original and certified or
other copies of such documents as they may reasonably request.
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(viii) Registration Rights Agreement. The
Company and each Investor shall have entered into a Registration Rights
Agreement in the form attached hereto as Exhibit A and all third party consents
to the execution and delivery of the Registration Rights Agreement shall have
been obtained.
(ix) Irrevocable Proxies/Voting Agreements.
The Investors shall have received from stockholders holding more than fifty
percent (50%) of the outstanding voting capital stock of the Company Irrevocable
Proxies/Voting Agreements substantially in the form of Exhibit D attached hereto
with respect to the proposal to be considered to authorize the issuance of
Preferred Stock as provided in Section 5(f) below.
(b) Conditions to the Company's Obligations. The
obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor, any one or more of which may be waived by the Company:
(i) Representations and Warranties. Each of
the representations and warranties of the Investor set forth in Section 4 shall
be true and correct as if made at the Closing.
(ii) Payment of Purchase Price. The
Investor shall have delivered payment of the aggregate purchase price of the
Preferred Stock to be purchased by such Investor.
(iii) Proceedings and Documents. All
corporate and other proceedings in connection with the transactions contemplated
at the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Company and the Company's counsel, and
they shall have received all such counterpart original and certified or other
copies of such documents as they may reasonably request.
(iv) Performance. The Investor shall have
performed and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or
before the Closing.
(v) Qualifications. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful issuance and sale of the Preferred Stock to the Investors pursuant to
this Agreement shall have been duly obtained and shall be effective on and as of
the Closing, except for any post-sale filings that may be required under federal
and state securities laws.
3. Representations and Warranties of the Company. Except
as set forth on the Schedule of Exceptions attached hereto as Schedule B,
specifically identifying the relevant subparagraph hereof, which exceptions
shall be deemed to be representations and warranties as if made hereunder, the
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Company hereby represents and warrants to each Investor that:
(a) Corporate Power. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to do business as a foreign
corporation in each jurisdiction where failure to qualify would have a
materially adverse effect on the financial condition, assets, liabilities,
prospects, business or properties of the Company (a "Material Adverse Effect").
The Company has full power and authority to own its properties, to carry on its
business as presently conducted and to carry out the transactions contemplated
hereby.
(b) Authorization. The Company has full power to
execute, deliver and perform this Agreement and the Registration Rights
Agreement, and this Agreement and the Registration Rights Agreement have been
duly executed and delivered by the Company and are the legal, valid and,
assuming due execution by the other parties hereto, binding obligations of the
Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally, and to general equitable principles. The
execution, delivery and performance of this Agreement and the Registration
Rights Agreement, including the sale, issuance and delivery of the Preferred
Stock, have been duly authorized by all necessary corporate actions of the
Company and its stockholders.
(c) Valid Issuance of Preferred and Common Stock.
The shares of Preferred Stock being purchased by the Investors hereunder, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, and, based in
part upon the representations of the Investors in this Agreement, will be issued
in compliance with the registration and qualification requirements of all
applicable federal and state securities laws and such shares of Preferred Stock
will be fully paid and non-assessable. The rights, privileges and preferences of
the Preferred Stock will be as stated in the Company's Certificate of
Designation, attached hereto as Exhibit B. The shares of Common Stock issuable
upon conversion of the Preferred Stock purchased under this Agreement have been
duly and validly reserved for issuance and, upon issuance in accordance with the
terms of the Certificate of Designation, shall be duly and validly issued, fully
paid and nonassessable, and issued in compliance with the registration and
qualification requirements of all applicable securities laws, as presently in
effect, of the United States and each of the states whose securities laws govern
the issuance of any of the Preferred Stock hereunder.
(d) Governmental Approvals. Based in part on the
representations made by the Investors in Section 4, no authorization, consent,
approval, license, exemption of or filing or registration with any court or
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governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, under any applicable laws, rules or regulations presently
in effect, is or will be necessary for, or in connection with, the offer,
issuance, sale, execution and delivery by the Company of the Preferred Stock or
for the performance by the Company of its obligations under this Agreement,
except for filings under applicable securities laws which will be made by the
Company within the prescribed periods.
(e) Litigation. There is no litigation or
governmental proceeding or investigation pending or, to the best knowledge of
the Company, threatened against the Company which would have a Material Adverse
Effect or which would materially and adversely affect the execution and delivery
of this Agreement or the performance by the Company of its obligations
hereunder.
(f) Subsidiaries; Charter Documents. Except as
set forth in the Schedule of Exceptions, the Company has no active subsidiaries
and does not otherwise directly or indirectly control any other business entity.
The Company has furnished the Investors with copies of its Certificate of
Incorporation and Bylaws, as currently in effect, together with any amendments
or Certificates of Designation thereto as of the date hereof. The documents so
furnished are true, correct and complete copies of the existing original
documents, and contain all modifications, amendments, deletions and revocations.
(g) Financial Statements. The Company has
delivered to the Investors copies of the Company's Quarterly Reports on Form
10-Q for the quarter ended March 31, 1996 and the Annual Report on Form 10-K for
the year ended December 31, 1995, containing audited consolidated balance
sheets, statements of income and changes in financial position for the Company
for the fiscal year ended December 31, 1995 (the "Financial Statements"). The
Financial Statements are complete and correct in all material respects, have
been prepared in accordance with generally accepted accounting principles,
consistently applied, and fairly present the financial position of the Company
as of each such date and the results of operations for each such periods then
ended.
(h) Absence of Certain Developments. Since March
31, 1996, there has been no (i) material adverse change in the condition,
financial or otherwise, of the Company or its assets, liabilities, properties,
business, operations or prospects generally, (ii) declaration, setting aside or
payment of any dividend or other distribution with respect to the capital stock
of the Company, (iii) loss, destruction or damage to any property of the
Company, whether or not insured, or the occurrence of any other event, which has
or is likely to have a Material Adverse Effect, (iv) material change in the
compensation to officers or directors, (v) any material transactions with any
insiders or affiliates of the Company or (vi) the entering into or termination
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of any material agreements by the Company. The Company has not failed to
disclose to the Investors any material facts, or omitted to state any material
facts necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(i) Absence of Undisclosed Liabilities. Except
for liabilities arising in the ordinary course of its business, since March 31,
1996 the Company has no material accrued or contingent liability which is
reasonably likely to occur arising out of any transaction or state of facts
existing prior to the date hereof.
(j) Business. The Company has all necessary
franchises, permits, governmental licenses and other governmental rights and
privileges necessary to permit it to own its properties and to conduct its
present business, except where the failure to do so would not have a Material
Adverse Effect. The Company is not in violation of any law, regulation,
authorization or order of any public authority relevant to the ownership of its
properties or the carrying on of its present business, except where such
violation would not have a Material Adverse Effect.
(k) Non-Contravention. The execution, delivery
and performance by the Company of this Agreement and the Registration Rights
Agreement does not and will not (i) contravene or conflict with the Certificate
of Incorporation, as amended, or Bylaws of the Company, or (ii) contravene or
conflict with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to the Company,
or (iii) any contract, agreement or instrument to which the Company is a party
or by which any of its properties or assets is subject, in any manner which
would materially and adversely affect the Investors' rights or their ability to
realize the intended benefits under this Agreement or the Registration Rights
Agreement, or which would have a Material Adverse Effect.
(l) Filings. The Company has filed all reports
required to be filed with the Commission under the Securities Exchange Act of
1934 (the "1934 Act"), including (i) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995, (ii) its Quarterly Reports on Form
10-Q for its fiscal quarters ending March 31, 1995, June 30, 1995, September 30,
1995 and March 31, 1996, and (iii) all of its other reports (including without
limitation reports on Form 8-K, statements, schedules and registration
statements filed with the Commission since December 31, 1994). As of its filing
date, no such report or statement filed pursuant to the 1934 Act contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
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(m) Registration Rights Agreement. The Company
has entered into the Registration Rights Agreement with each Investor as
provided in Section 2(a)(ix), and, other than the registration rights described
in the Schedule of Exceptions, no other registration rights currently exist.
(n) Indemnification. The Company maintains
provisions in its Certificate of Incorporation or Bylaws, as amended, for the
indemnification of its officers and directors to the fullest extent permitted by
law.
(o) Insurance. The Company has in full force and
effect fire and casualty insurance policies, with extended coverage, sufficient
in amount (subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed. The Company has in full force and
effect products liability insurance in amounts customary for companies similarly
situated.
(p) Tax Returns, Payments and Elections. The
Company has filed all tax returns and reports as required by law. These returns
and reports are true and correct in all material respects. The Company has paid
all taxes and other assessments due, except those contested by it in good faith
which are listed in the Schedule of Exceptions. The Company has not elected
pursuant to the Internal Revenue Code of 1986, as amended ("Code"), to be
treated as a collapsible corporation pursuant to Section 341(f) or Section
1362(a) of the Code, nor has it made any other elections pursuant to the Code
(other than elections which relate solely to methods of accounting, depreciation
or amortization) which would have a Material Adverse Effect.
(q) Environmental and Safety Laws. The Company
is not in violation of any applicable statute, law, or regulation relating to
the environment or occupational health and safety, which could have a Material
Adverse Effect and, based on the Company's business as currently conducted, no
material expenditures are or will be required in order to comply with any such
existing statute, law, or regulation.
(r) Patents and Trademarks. To the best of its
knowledge, the Company has sufficient title and ownership of, or has obtained
licenses on terms which will not result in any Material Adverse Effect, all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights and processes necessary for its business as now
conducted without any conflict with or infringement of the rights of others.
There are no outstanding material options, licenses, or agreements of any kind
relating to the foregoing other than in the ordinary course of business, nor is
the Company bound by or a party to any material options, licenses or agreements
of any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
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processes of any other person or entity other than in the ordinary course of
business. All material agreements pursuant to which the Company is either the
licensor or licensee of any patent, patent application, copyright, trademark,
service mark, trade secret or other intellectual property are identified on the
Schedule of Exceptions. All third party licenses referred to above are in full
force and effect and neither the Company nor any other party thereto are in
material breach or default under any provisions of any such license. The Company
has not received any communications alleging that the Company has violated or,
by conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity, the infringement or violation
of which would have a Material Adverse Effect. The Company is not aware that any
of its employees are obligated under any contract (including licenses, covenants
or commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere with
the use of their respective best efforts to promote the interests of the Company
or that would conflict with the Company's business as proposed to be conducted.
The Company does not believe it is or will be necessary to utilize any
inventions of any of its employees (or people it currently intends to hire) made
prior to their employment by the Company.
(s) Capitalization. The authorized, issued and
outstanding Capital Stock of the Company is as set forth on the Schedule of
Exceptions. Except as set forth on the Schedule of Exceptions, there are no
outstanding rights of first refusal, preemptive rights, or other rights,
options, warrants, conversion rights, or other agreements either directly or
indirectly for the purchase or acquisition from the Company of any shares of its
Capital Stock.
(t) Employee Benefit Plans. The Schedule of
Exceptions contains a true and complete list of all of the defined benefit plans
of the Company. Each defined benefit plan of the Company is in compliance with
the applicable provisions of the Employee Retirement Income Security Act
("ERISA"), except where the noncompliance would not have a Material Adverse
Effect. Each of the Company defined benefit plans which is intended to
constitute a qualified plan within the meaning of Section 401 of the Internal
Revenue Code of 1986, as amended, is so qualified and has been determined by the
Internal Revenue Service to be so qualified. All contributions due and payable
to or under the Company's defined benefit plans have been made.
(u) Labor Relations. None of the employees of
the Company is represented by a labor union and no petition has been filed or
proceedings instituted by any employee or group of employees with any labor
relations board seeking recognition of a bargaining representative. There are no
controversies or disputes pending between the Company and its employees, except
for controversies and disputes with individual employees arising in the ordinary
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course of business which have not had and will not have, individually or in the
aggregate a Material Adverse Effect.
(v) Material Contracts and Agreements. Except as
set forth in the Schedule of Exceptions, the Company does not have any material
contract, agreement, lease or other commitment, written or oral, absolute or
contingent. All material contracts, agreements and instruments to which the
Company is a party are valid, binding and in full force and effect in all
material respects without any material breach by any party thereto.
4. Representations, Warranties and Covenants of the
Investor. Each Investor hereby represents, warrants and covenants to the
Company as follows:
(a) Investment Experience. The Investor is an
"accredited investor" within the meaning of Rule 501 under the Securities Act of
1933, as amended (the "1933 Act"), and, in the case of any Investor which is a
partnership or other legal entity, was not organized for the specific purpose of
acquiring the Preferred Stock. Such Investor has sufficient knowledge and
experience in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks and merits
of its investment in the Company and it is able financially to bear the risks
thereof.
(b) Purchase for Own Account. The Investor is
acquiring the Preferred Stock for investment for its own account and not with
the view to, or for resale in connection with, any distribution thereof. Such
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. Such Investor does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer, or
grant participations to such person or to any third person, with respect to any
of the Preferred Stock. The Investor understands that the shares of Preferred
Stock have not been registered under the 1933 Act by reason of an exemption from
the registration provisions of the 1933 Act which depends upon, among other
things, the bona fide nature of its investment intent as expressed herein.
(c) Restricted Securities. The Investor
understands that the Preferred Stock, and any Common Stock issuable upon
conversion thereof, may not be sold, transferred, or otherwise disposed of
without registration under the 1933 Act, or an exemption therefrom, and that in
the absence of an effective registration statement covering the Preferred Stock,
and Common Stock issuable upon conversion thereof, or an available exemption
from registration under the 1933 Act, the Preferred Stock, and any Common Stock
issuable upon conversion thereof, must be held indefinitely. In the absence of
an effective registration statement covering the Preferred Stock or any Common
Stock issuable upon conversion thereof, the Investor will sell, transfer, or
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otherwise dispose of the Preferred Stock, and any Common Stock issuable upon
conversion thereof, only in a manner consistent with its representations and
agreements set forth herein.
(d) Information. The Investor believes it has
received all of the information it considers necessary or appropriate for
deciding whether to purchase the Preferred Stock. The Investor further
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Preferred Stock. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 3 of this Agreement or
the right of the Investor to rely thereon.
(e) Legend. It is understood that the
certificates evidencing the Preferred Stock, and any Common Stock issued upon
conversion thereof, may bear substantially the following legends:
(i) THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT.
(ii) Any legend required by the laws of the
State of California or any other applicable jurisdiction.
(f) Voting. The Investor hereby agrees to vote
his, her or its voting capital stock of the Company for any proposal to
authorize the issuance and authorization of the Preferred Stock and the
conversion thereof into shares of Common Stock.
5. Covenants of the Company. Without limiting any
other covenants and provisions hereof, the Company covenants and
agrees that:
(a) The Company will provide each Investor with
copies of the Company's Quarterly Reports on Form 10-Q, Annual Reports on Form
10-K and Annual Reports to Stockholders within twenty (20) days of the filing of
such documents with the Commission; provided, however, that such obligation
shall terminate as to any Investor upon the earlier of (i) the sale, disposition
or conversion into Common Stock of all of such Investor's Preferred Stock or
(ii) such time as such Investor holds less than 500 shares of Preferred Stock
and/or an equivalent number of shares of Common Stock which are issuable upon
conversion of 500 shares of Preferred Stock.
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(b) The Company will permit each Investor who
holds at least 500 shares of Preferred Stock and/or an equivalent number of
shares of Common Stock which are issuable upon conversion of 500 shares of
Preferred Stock, at such Investor's expense, to visit and inspect the Company's
properties, to examine its books, accounts and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Investor; provided, however, that
the Company shall not be obligated pursuant to this Section 5(b) to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information and, provided further, that all obligations
under this Section 5(b) shall terminate as to any Investor upon the earlier of
(i) the sale, disposition or conversion into Common Stock of all of such
Investor's Preferred Stock or (ii) such time as such Investor holds less than
500 shares of Preferred Stock.
(c) The Company will maintain provisions in its
Certificate of Incorporation or Bylaws for the indemnification of its officers
and directors to the fullest extent permitted by law for so long as any
representative of any of the Investors serves on the Company's Board of
Directors.
(d) The Company will use its best efforts to
obtain and keep directors' and officers' liability insurance in the amount of at
least $3,000,000 if such coverage is available at commercially reasonable rates.
Such coverage will be kept in place for so long as any representative of any of
the Investors serves on the Company's Board of Directors.
(e) The Company will use the proceeds from the
sale of the Preferred Stock for repayment of existing indebtedness in the
approximate amount of twenty-five percent (25%) of the proceeds, and the
remainder for general corporate purposes.
(f) The Company shall include in its proxy
materials for its next scheduled annual meeting of stockholders, a proposal to
authorize the issuance of the Preferred Stock, and the conversion thereof into
shares of Common Stock to satisfy the requirements of the Bylaws of the National
Association of Securities Dealers, Inc.
6. Miscellaneous.
(a) No Waiver; Cumulative Remedies. No failure
or delay on the part of the Investors or the Company in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
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(b) Amendments, Waivers and Consents. Except as
otherwise expressly provided in this Agreement, changes in or additions to this
Agreement may be made, and compliance with any covenant or provision herein or
therein set forth may be omitted or waived (either generally or in a particular
instance and either retroactively or prospectively), so long as the Company and
the holders of at least a majority of the then outstanding shares of Preferred
Stock issued hereunder and/or an equivalent number of then outstanding shares of
Common Stock which have been issued upon conversion of shares of Preferred Stock
which are held by the Investors and/or transferees of an Investor other than
pursuant to a public sale, so agree in writing. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each Investor and their
transferees. Any waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be effective only to
the extent expressly set forth therein.
(c) Addresses for Notices. All notices,
requests, demands and other communications provided for hereunder to be sent to
the Investors shall be in writing (including telegraphic communication) and
mailed, telecopied or delivered to the applicable party at the addresses
indicated on Schedule A hereto. Any such notices, requests, demands or other
communications to the Company shall be sent to:
The Cerplex Group, Inc.
1382 Bell Avenue
Tustin, California 92680
Attention: Bruce D. Nye
with a copy to:
Brobeck, Phleger & Harrison
4675 MacArthur Court, Suite 1000
Newport Beach, California 92660-1836
Attention: Frederic A. Randall, Jr., Esq.
Any party to this Agreement may change its address by written notice to the
other party complying as to delivery with the terms of this Section. All such
notices, requests, demands and other communications shall, when delivered by
courier, mailed or telecopied, respectively, be effective when delivered to the
courier, deposited in the mails or sent on the telecopier, respectively,
addressed as aforesaid.
(d) Fees, Costs and Expenses. Irrespective of
whether the Closing is effected, the Company shall pay all costs and expenses
that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement. If the Closing is effected, the Company shall, at
the Closing, reimburse the reasonable fees of Stradling, Yocca, Carlson & Rauth,
special counsel for the Investors, not to exceed an aggregate of $25,000, and
shall upon receipt of a bill therefor, reimburse the out of pocket expenses
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of such counsel. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement or the Certificate of Designation, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(e) Binding Effect, Assignment. Except as
otherwise specifically provided for herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any of the
shares sold hereunder). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f) Survival of Representations and Warranties.
All representations and warranties made in this Agreement shall survive the
execution and delivery hereof, the Closing hereunder, and any examination made
by the Investors for a period of eighteen (18) months following the Closing.
(g) Prior Agreements. This Agreement constitutes
the entire agreement between the parties and supersedes any prior understandings
or agreements concerning the subject matter hereof.
(h) Severability. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provision.
(i) Public Disclosure. The Company shall consult
with the holders of a majority of the outstanding Preferred Stock prior to
making the initial public disclosure concerning the transactions contemplated
hereby.
(j) Governing Law. This Agreement shall be
governed by and construed in accordance with, the laws of the State of
California without giving effect to principles of conflict of laws.
(k) Headings. Section and subsection headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
(l) Counterparts. This Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument, and either of the parties hereto may execute this
Agreement by signing any such counterpart.
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IN WITNESS WHEREOF, the Company and the Investors have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE CERPLEX GROUP, INC.
By: ____________________
Title: _________________
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: General Managing
Partner
By: _______________________
Robert Finzi,
Attorney-in-Fact
DLJ CAPITAL CORPORATION
By: _______________________
SCORPION OFFSHORE INVESTMENT
FUND
By: _______________________
Title: ____________________
THE & TRUST
By: _______________________
Title: ____________________
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CHESTNUT PACIFIC LTD. PARTNERS
By: _______________________
Title: ____________________
STANDARD GLOBAL EQUITY
PARTNERS L.P.
By: _______________________
Title: ____________________
STANDARD PACIFIC CAPITAL
OFFSHORE FUND LTD.
By: _______________________
Title: ____________________
COMMON FUND EQUITY FUND
By: _______________________
Title: ____________________
___________________________
MALCOLM FAIRBAIRN
___________________________
EMILY FAIRBAIRN
___________________________
WILLIAM MARTIN
____________________________
NITIN T. MEHTA
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<PAGE>
PEAK INVESTMENT LIMITED
PARTNERSHIP
PLEIADES INVESTMENT PARTNERS
By: ______________________
By: _______________________ Title: ____________________
Title: ____________________
WHITMAN CAPITAL, INC.
By: _______________________
Title: ____________________
PEAK INVESTMENT LIMITED
PARTNERSHIP
By: _______________________
Title: ____________________
PLEIADES INVESTMENT PARTNERS
By: _______________________
Title: ____________________
WHITMAN PARTNERS, L.P.
By: _______________________
Title: ____________________
MAHUMA N.V.
By: _______________________
Title: ____________________
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<PAGE>
EXHIBIT 6
CERTIFICATE OF DESIGNATION
OF PREFERENCES OF SERIES B PREFERRED STOCK OF
THE CERPLEX GROUP, INC.
a Delaware Corporation
The undersigned, James T. Schraith and Frederic A. Randall,
Jr., hereby certify that:
(a) They are the duly elected and acting President and
Secretary, respectively, of The Cerplex Group, Inc., a Delaware
corporation (the "Corporation").
(b) Pursuant to the authority conferred upon the Board of
Directors of the Corporation by paragraph B of Article IV of the Corporation's
Certificate of Incorporation (the "Certificate"), the Board of Directors of the
Corporation on June 7, 1996 adopted the following resolutions creating a series
of preferred stock designated as Series B Preferred Stock;
WHEREAS, the Certificate provides for a class of shares known
as Preferred Stock, issuable from time to time in one or more series; and
WHEREAS, the Board of Directors of the Corporation is
authorized by the Certificate to determine the powers, rights, preferences,
qualifications, limitations and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock, to fix the number of shares
constituting any such series, and to determine the designation thereof, or any
of them;
WHEREAS, the Board of Directors of the Corporation desires,
pursuant to its authority as aforesaid, to determine and fix the powers, rights,
preferences, qualifications, limitations and restrictions relating to Series B
Preferred Stock and the number of shares constituting, and the designation of,
such series:
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority
vested in the Board of Directors of the Corporation in accordance with the
provisions of the Certificate, the series of Preferred Stock is hereby created,
and the Board of Directors hereby fixes and determines the designation of, the
number of shares constituting, and the rights, preferences, privileges and
restrictions relating to, such series of Preferred Stock as follows:
1. Designation. The series of Preferred Stock of the
Corporation shall be designated as "Series B Preferred Stock,"
$0.001 par value.
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2. Authorized-Number. The number of shares constituting the
Series B Preferred Stock shall be Eight Thousand (8,000) shares. The Board of
Directors is authorized to decrease the number of shares of any series of
preferred stock prior or subsequent to the issue of that series, but not below
the number of shares of such series then outstanding. In case the number of
shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
3. Dividend Rights. Subject to the prior rights of holders of
all classes of stock at the time outstanding having prior rights as to
dividends, the holders of the Series B Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of any assets of
the Corporation legally available therefor, such dividends as may be declared
from time to time by the Board of Directors. The Board of Directors shall not
pay any dividend to the holders of the Common Stock unless and until it has paid
an equivalent dividend, based upon the number of shares of Common Stock into
which each share of Series B Preferred Stock is convertible as of the record
date for the payment of the dividend, to the holders of the Series B Preferred
Stock. In addition to the foregoing, in the event the Corporation should fail to
register the shares of Common Stock into which the Series B Preferred Stock are
convertible under the Securities Act of 1933, as amended, within one hundred
fifty (150) days following the closing of that certain Stock Purchase Agreement
dated June 10, 1996 by and between the Corporation and the holders of Series B
Preferred Stock (the "Original Issue Date"), as provided in that certain Fourth
Amendment to Registration Rights Agreement between the Corporation, the holders
of Series B Preferred Stock and certain other securityholders of the Corporation
entered into on the Original Issue Date, the holders of Series B Preferred Stock
shall be entitled to receive a dividend at the rate of $0.83 1/3 per share (as
adjusted for any stock dividends, combinations or splits with respect to such
shares) per day for each day after one hundred fifty (150) days following the
Original Issue Date during which the shares of Common Stock issuable upon
conversion of the shares of Series B Preferred Stock are not so registered,
which dividends shall accrue beginning one hundred fifty (150) days following
the Original Issue Date until such shares of Common Stock are so registered.
Such dividend shall be payable quarterly on the first day of each calendar
quarter commencing with the first calendar quarter ending after one hundred
fifty (150) days following the Original Issue Date. The foregoing
notwithstanding, (i) such dividends shall not be payable if the failure to
register the shares of Common Stock issuable upon conversion of the shares of
Series B Preferred Stock is a direct result of the actions of the holders of
Series B Preferred Stock, and (ii) the aggregate amount of dividends payable on
each share of Series B Preferred Stock pursuant to the foregoing shall not
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exceed $500 per share (as adjusted for any stock dividends, combinations or
splits with respect to such shares).
4. Liquidation Preference.
(A) In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, subject to
the rights of any series of Preferred Stock which may from time to time come
into existence, the holders of the Series B Preferred Stock shall be entitled to
receive, prior and in preference to any distribution of any of the assets or
surplus funds of the Corporation to the holders of the Common Stock by reason of
their ownership thereof, the amount of $2,000 per share (as adjusted for any
stock dividends, combinations or splits with respect to such shares) plus all
accrued or declared but unpaid dividends on such share (the "Liquidation
Preference") for each share of Series B Preferred Stock then held by such
holder. If upon the occurrence of any such event, the assets and funds thus
distributed among the holders of Series B Preferred Stock shall be insufficient
to permit the payment to such holders of the full aforesaid preferential
amounts, then, subject to the rights of any series of Preferred Stock which may
from time to time come into existence, entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably upon
the holders of Series B Preferred Stock in proportion to the product of the
Liquidation Preference of each such share and the number of such shares owned by
each such holder.
(B) After the distributions described in Section
4(A) above have been paid, subject to the rights of any series of Preferred
Stock which may from time to time come into existence, the remaining assets of
the Corporation available for distribution to stockholders shall be distributed
among the holders of Common Stock pro rata based upon the number of shares of
Common Stock held by each stockholder.
(C) For purposes of this Section 4, (i) any
acquisition of the Corporation by means of merger or other form of corporate
reorganization in which outstanding shares of the Corporation are exchanged for
securities or other consideration issued, or caused to be issued, by the
acquiring corporation or its subsidiary (other than a mere reincorporation
transaction) in which in excess of 50% of the Corporation's voting power is
transferred to a person or persons different from those who held such prior to
such transaction or (ii) a sale of all or substantially all of the assets of the
Corporation or (iii) any other transaction or series of related transactions by
the Corporation in which in excess of 50% of the Corporation's voting power is
transferred to a person or persons different from those who held such securities
prior to such transaction, shall be treated as a liquidation, dissolution or
winding up of the Corporation and shall entitle the holders of Series B
Preferred Stock to receive at the closing in cash, securities of other
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property (valued as provided in Section 4(D) below) the Liquidation Preference.
(D) Whenever the distribution provided for in
this Section 4 shall be payable in securities or property other than cash, the
value of such distribution shall be as follows:
(i) Securities not subject to investment letters
or other similar restrictions on free marketability;
(A) If traded on a securities exchange
(which shall include the Nasdaq National Market), the value
shall be deemed to be the average of the closing prices of the
securities on such exchange over the 30- day trading period
ending three (3) days prior to the closing,
(B) If traded over-the-counter, the value
shall be deemed to be the average of the closing bid or sale
prices (whichever are applicable) over the 30-day trading
period ending three (3) days prior to the closing as reported
in pink sheets or other publications reasonably selected by
the Board of Directors; and
(C) If there is no public market, the value
shall be the fair market value thereof, as determined in good
faith by the Board of Directors of the Corporation.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other
than restrictions arising solely by virtue of a stockholder's status as
an affiliate or former affiliate) shall be to make an appropriate
discount from the market value determined as above in (i)(A), (B) or (C)
to reflect the approximate fair market value thereof, as determined in
good faith by the Board of Directors of the Corporation.
5. Redemption. Except as provided in Section 6(C)
below, the Series B Preferred Stock is not redeemable.
6. Conversion. The holders of Series B Preferred
Stock shall have conversion rights as follows (the "Conversion
Rights"):
(A) Right to Convert. Each share of Series B
Preferred Stock shall be convertible into shares of Common Stock at any time
commencing ninety (90) days after the Original Issue Date subject to the
following terms and provisions:
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(i) The Series B Preferred Stock shall be
convertible in minimum amounts of at least twenty-five (25)
preferred shares.
(ii) Each share of Series B Preferred Stock shall
be convertible into the number of shares of Common Stock
equal to $1,000.00 (the "Original Issue Price") divided by
the Conversion Price (as defined below). The Conversion
Price shall be the lower of:
(1) 80% of the average closing bid price of the
Common Stock for the ten (10) trading days ending three (3)
days prior to the date of the notice of conversion delivered
as provided in Section 6(D) below; or
(2) $5.07 (as adjusted for any stock dividends,
combinations or splits with respect to such shares of
Common Stock).
(B) Automatic Conversion. Each share of Series B Preferred
Stock shall automatically be converted into the number of shares of Common
Stock, determined as provided in Section 6(A) above, upon the earlier to occur
of (i) five (5) years following the Original Issue Date, or (ii) five (5) days
after written notification to the holders of the Series B Preferred Stock by the
Corporation that the price of the Common Stock for thirty (30) consecutive
trading days has exceeded $19.13 per share, as adjusted for stock dividends,
combinations or splits. Such price shall be calculated as follows:
(i) If traded on a securities exchange (which shall
include the Nasdaq National Market), the value shall be deemed to be
the closing sales price of the securities on such exchange for each
trading day during the applicable 30- day trading period; and
(ii) If traded over-the-counter, the value shall be deemed
to be the closing bid or sales price (whichever are applicable) for
each trading day during over the applicable 30-day trading period.
(C) Limitation on Conversion; Redemption.
(i) Anything hereunder to the contrary notwithstanding, the
Corporation shall not be required to issue upon conversion of the Series B
Preferred Stock more than an aggregate of 2,679,484 shares of Common Stock (the
"Nasdaq Cap"), if the issuance of a larger number of shares would constitute a
breach of the Corporation's obligations under its agreements with the National
Association of Securities Dealers, Inc. (the "NASD") or the Bylaws of the NASD.
Subject to the obligation of the Corporation to effect certain redemptions and
the exception as provided below, if further issuances of shares of Common Stock
upon the conversion of shares of Series B Preferred Stock would constiute a
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<PAGE>
breach of the Corporation's obligations under any applicable agreement with the
NASD or the NASD Bylaws because all of the shares permitted to be issued under
the Nasdaq Cap shall have been previously issued, and so long thereafter as such
limitation shall continue to be applicable, and any shares of Series B Preferred
Stock are submitted for conversion, such shares shall receive an amount equal to
the Liquidation Preference for such shares as provided in Section 4(A) above in
lieu of the shares of Common Stock which would otherwise be issued upon such
conversion. Payment of such cash amounts shall be made within five (5) business
days following the date of the notice of conversion as provided in Section 6(D)
below. In the event the Corporation for any reason should fail to make any such
payment within such five (5) day period, the unpaid amount shall bear interest
at the rate of 1/10 of one percent (0.1%) per day, or the maximum rate permitted
by law, whichever is lower. The amount of shares of Common Stock subject to the
Nasdaq Cap shall be adjusted for stock dividends, combinations or splits. In the
event the Nasdaq Cap should continue to be applicable to the issuance of shares
of Common Stock upon conversion of the shares of Series B Preferred Stock ninety
(90) days following the Original Issue Date, the Corporation shall redeem the
minimum number of shares of Series B Preferred Stock such that the Corporation's
agreements with the NASD or the Bylaws of the NASD regarding the Nasdaq Cap will
not be breached upon the conversion of the remaining shares of Series B
Preferred Stock outstanding following such redemption. In such event, the
redemption price to be paid by the Corporation shall be equal to the Liquidation
Preference as provided in Section 4(a) above. Any redemption effected pursuant
to the preceding provisions shall require no more than ten (10) days notice and
the redemption dates shall be on or before one hundred five (105) days following
the Original Issue Date. Any such redemption shall be effected pro rata among
the holders of Series B Preferred Stock. If the funds of the Corporation legally
available for redemption of Series B Preferred Stock are insufficient to redeem
the number of shares to be so redeemed as provided above, those funds which are
legally available will be used to redeem the maximum possible number of such
shares ratably among the holders of such shares to be redeemed. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of shares of Series B Preferred Stock, such funds will
immediately be used to redeem the balance of the shares which the Corporation
has become obligated to redeem as provided above but which have not been
redeemed. If for any reason any shares of Series B Preferred Stock are not
redeemed on the date when such shares were to have been so redeemed, as provided
above, the unpaid redemption price which should have been paid shall bear
interest until fully paid at the rate of 1/10 of one percent (0.1%) per day, or
the maximum rate permissible by law, whichever is lower.
(ii) Notwithstanding anything to the contrary in
Section 6(C)(ii) above, if the redemption of any of the shares of Series B
Preferred Stock, or the payment of any Liquidation Preference in lieu of the
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delivery of shares of Common Stock as provided above, would violate covenants of
any agreement of the Company with its secured lenders existing as of the
Original Issue Date, the shares of Series B Preferred Stock will not be redeemed
unless the lenders consent to the redemption or payment of the Liquidation
Preference. If for any reason the Corporation (A) (i) fails to issue and deliver
shares of Common Stock upon conversion, or (ii) fails to pay the Liquidation
Preference in lieu of issuing and delivering shares of Common Stock upon
conversion; or (B) fails to redeem shares of Series B Preferred Stock as a
result of the Nasdaq Cap remaining in effect one hundred five (105) days after
the Original Issue Date as provided above, then in either such event, anything
herein to the contrary notwithstanding, the Corporation shall issue and deliver
shares of Common Stock upon conversion of Series B Preferred Stock. The shares
of Series B Preferred Stock not redeemed shall remain outstanding and entitled
to all the rights and preferences provided herein.
(D) Mechanics of Conversion. Before any holder of Series B
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, he shall give written notice (which may be by mail, postage prepaid or by
facsimile transmission) to the Corporation at its principal corporate office, of
the election to convert the same and shall state therein the number of shares to
be converted and the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. Promptly thereafter the holder shall by
messenger or overnight delivery surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, as soon as practicable
after receipt of such notice, issue and deliver to or upon the order of such
holder of the Series B Preferred Stock, or to the nominee or nominees of such
holder, against delivery of the certificates representing the shares which have
been converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled as aforesaid. The Corporation shall
use its best efforts to effect such issuance within 48 hours of the receipt of
the certificates representing the shares to be converted and shall transmit the
certificates by messenger or overnight delivery service to the address
designated by such holder. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of conversion
is given, or in the case of automatic conversion pursuant to Section 6(B), the
effective date of automatic conversion as provided in Section 6(B), and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date.
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(E) Adjustments to Conversion Ratio for Stock Dividends and
for Combinations or Subdivisions of Common Stock. In the event that the
Corporation at any time or from time to time after the purchase date of the
Series B Preferred shall declare or pay, without consideration, any dividend on
the Common Stock payable in Common Stock or in any right to acquire Common Stock
for no consideration, or shall effect a subdivision of the outstanding shares of
Common Stock into a greater number of shares of Common Stock (by stock split,
reclassification or otherwise than by payment of a dividend in Common Stock or
in any right to acquire Common Stock), or in the event the outstanding shares of
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, then the number of
shares of Common Stock into which the Series B Preferred Stock can be converted
shall be proportionately decreased or increased, as appropriate. In the event
that the Corporation shall declare or pay, without consideration, any dividend
on the Common Stock payable in any right to acquire Common Stock for no
consideration then the Corporation shall be deemed to have made a dividend
payable in Common Stock in an amount of shares equal to the maximum number of
shares issuable upon exercise of such rights to acquire Common Stock.
(F) Adjustments for Reclassification and Reorganization. If
the Common Stock issuable upon conversion of the Series B Preferred Stock shall
be changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for in
Section 6(E) above or a merger or other reorganization referred to in Section
4(C) above), the number of shares of such other class or classes of stock into
which the Series B Preferred Stock shall be convertible shall, concurrently with
the effectiveness of such reorganization or reclassification, be proportionately
adjusted so that the Series B Preferred Stock shall be convertible into, in lieu
of the number of shares of Common Stock which the holders would otherwise have
been entitled to receive, a number of shares of such other class or classes of
stock equivalent to the number of shares of Common Stock that would have been
subject to receipt by the holders upon conversion of the Series B Preferred
Stock immediately before that change.
(G) Rights Offerings. In the event the Corporation shall issue
and distribute to all holders of Common Stock in any manner on or after the date
of the filing of this Certificate of Designation any rights to subscribe for, or
any rights or options to purchase, Common Stock or any stock or other securities
convertible into or exchangeable for Common Stock (such convertible or
exchangeable stock or securities being herein called "Convertible Securities"),
whether or not such rights or options or the right to convert or exchange any
such Convertible Securities are immediately exercisable, which rights or options
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do not result in any adjustment to the number of shares of Common or other
classes of stock into which the Series B Preferred Stock can be converted under
either Section 6(E) or Section 6(F) above, then the Corporation shall issue and
distribute such rights or options to the holders of Series B Preferred Stock to
the same extent as though they were holders, at the time of such distribution,
of that number of shares of Common Stock into which the shares of Series B
Preferred Stock held by each holder could be then be converted as of the record
date for the issuance of such Convertible Securities.
(H) No Impairment. This Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 6 and in the taking of all
such actions as may be necessary or appropriate in order to protect the
conversion rights of the holders of the Series B Preferred Stock against
impairment.
(I) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon
conversion of the Series B Preferred Stock, and the number of shares of Common
Stock to be issued shall be rounded to the nearest whole share. Whether or not
fractional shares are issuable upon such conversion shall be determined on the
basis of the total number of shares of Series B Preferred Stock the holder is
then converting into Common Stock and the number of shares of Common Stock
issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the number of shares of Common Stock into which the Series B
Preferred Stock can be converted pursuant to this Section 6, the Corporation, at
its expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series B Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series B Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (A) such adjustment and
readjustment, (B) the conversion ratio at the time in effect, and (C) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of the Series B Preferred Stock.
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(J) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series B Preferred Stock, at least twenty (20) days
prior to the date specified therein, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
(K) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the Series B Preferred Stock such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series B Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all the then outstanding Series B Preferred Stock,
in addition to such other remedies as shall be available to the holder of such
Series B Preferred Stock, the Corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes.
(L) Notices. Any notice required by the provisions of this
Section 6 to be given to the holders of Series B Preferred Stock shall be deemed
given at the time deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his address appearing on the books of the
Corporation. Any notice to be given to the Corporation by a holder of Series B
Preferred Stock shall be given as provided in Section 6(D) above.
7. Voting Rights.
(A) Except as otherwise provided by law, each holder of shares
of Series B Preferred Stock shall be entitled to vote with the holders of Common
Stock on an as-converted basis (assuming for the purpose of this Section 7(A)
that the Conversion Price is determined according to Section 6(A)(ii)(2) above)
as a single class on all matters presented for stockholder vote, and shall be,
entitled to notice of any stockholders' meeting in accordance with the Bylaws of
the Corporation. Fractional votes, as determined on an aggregate conversion
basis for each holder, shall not, however, be permitted and any fractional
voting rights resulting from the conversion of Series B Preferred Stock into
Common Stock shall be rounded to the nearest whole number (with one-half being
rounded upward).
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8. Protective Provisions. Notwithstanding anything to the
contrary in the foregoing provisions and for so long as at least 800 shares of
Series B Preferred Stock remain issued and outstanding, the Corporation shall
not without first obtaining the approval (by vote or written consent) of the
holders of at least a majority of the voting power of the then outstanding
shares Series B Preferred Stock, voting together as one class:
(A) alter or change the rights, preferences or privileges of
the shares of Series B Preferred Stock;
(B) create (by new authorization reclassification,
recapitalization, designation or otherwise) or issue any class or series of
stock or any other securities convertible into equity securities of the
Corporation having a preference over the Series B Preferred Stock with respect
to voting, dividends or upon liquidation;
(C) increase the authorized number of shares of the Series B
Preferred Stock; or,
(D) amend this Section 8.
9. Status of Converted Stock. In the event any Series B
Preferred Stock shall be converted pursuant to Section 6 hereof, the shares so
converted shall be promptly cancelled after the conversion thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
RESOLVED FURTHER, that the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President, and the Secretary, the
Chief Financial Officer, the Treasurer, or any Assistant Secretary or Assistant
Treasurer of this Corporation are each authorized to execute, verify, and file a
Certificate of Designation of Preferences in accordance with Delaware law.
6-11
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
certificate and do affirm the foregoing as true under penalty of perjury this
7th day of on June, 1996.
____________________________
James T. Schraith, President
____________________________
Frederic A. Randall, Jr.,
Secretary
6-12
<PAGE>
EXHIBIT 7
THIRD AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this
"Amendment") is made as of the 15th day of April, 1996, by and among The Cerplex
Group, Inc., a Delaware corporation (the "Company"), the investors listed on
Schedule A hereto, each of which is herein referred to as an "Investor" and
collectively as the "Investors," the security holders of the Company listed on
Schedule B hereto, each of which is herein referred to as a "Stockholder" and
collectively as the "Stockholders," and the banks listed on Schedule C hereto,
each of which is herein referred to as a "Bank Holder" and collectively as the
"Bank Holders."
RECITALS:
A. The Company, the Investors, the Stockholders, and certain
other Investors and stockholders entered into a Registration Rights Agreement
dated November 19, 1993 (as in effect prior to the effectiveness of this
Amendment, the "Existing Registration Rights Agreement").
B. Pursuant to a Waiver and Amendment Agreement (the
"Warrantholders' Waiver and Amendment Agreement") dated as of April 15, 1996
among The Northwestern Mutual Life Insurance Company, John Hancock Mutual Life
Insurance Company and North Atlantic Smaller Companies Investment Trust PLC
(individually, a "Warrant Investor" and collectively, the "Warrant Investors")
and the Company, and a Warrant Agreement dated as of April 15, 1996 among the
Warrant Investors and the Company, the Company is issuing one million
(1,000,000) warrants (the "1996 Warrants") to purchase Common Stock (as such
term is defined in the Existing Registration Rights Agreement) to the Warrant
Investors.
C. The Warrant Investors have requested, as additional
consideration for their entering into the aforesaid Waiver and Amendment
Agreement, that the Existing Registration Rights Agreement be amended, as more
particularly provided herein, to include the 1996 Warrants.
D. Pursuant to a First Amendment to Credit Agreement and
Limited Waiver (the "Bank Amendment and Waiver Agreement") dated as of April 15,
1996 among the Company, Wells Fargo Bank, National Association, as
administrative agent, and the Bank Holders and a Warrant Agreement (the "Bank
Warrant Agreement") dated as of April 15, 1996 among the Company and the Bank
Holders, the Company is issuing one hundred twenty-five thousand (125,000)
7-1
<PAGE>
warrants (the Company is issuing one hundred twenty-five thousand (125,000)(as
such term is defined in the Existing Registration Rights Agreement) to the Bank
Holders; the number of such Bank Warrants is subject to reduction, as more
particularly provided for in the Bank Warrant Agreement.
E. The Company has requested that the Existing Registration
Rights Agreement be amended to include the Bank Holders and the Bank Warrants,
as more particularly provided herein.
F. The Company, the Investors and the Stockholders have agreed
to amend the Existing Registration Rights Agreement as set forth herein and each
of the Bank Holders have agreed to join the Existing Registration Rights
Agreement, as amended hereby, as parties thereto.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. As used in this Amendment,
the following terms have the respective meanings specified below:
"Amendment, this" -- means this Third Amendment to
Registration Rights Agreement.
"Bank Amendment and Waiver Agreement" -- Recital D.
"Bank Holders" -- the introductory sentence.
"Bank Warrant Agreement -- Recital D.
"Bank Warrants" -- Recital D.
"Company" -- the introductory sentence.
"Existing Registration Rights Agreement" -- Recital A.
"Investors" -- the introductory sentence.
"1996 Warrants" -- Recital B.
"Stockholders" -- the introductory sentence.
"Warrantholders' Waiver and Amendment Agreement" --
Recital B.
"Warrant Investors" -- Recital B.
7-2
<PAGE>
Section 2. Amendments.
2.1 Amendments to Section 1.1 of the Existing
Registration Rights Agreement.
(a) Section 1.1 of the Existing Registration
Rights Agreement is hereby amended by amending and restating the following
definitions, in their entirety, as set forth below:
(d) The term "Hancock Group Holders" means (a) John Hancock
Mutual Life Insurance Company for so long as it holds any Warrants
issued on November 19, 1993 or on April 15, 1996 (collectively, the
"Original JH Warrants") or any Common Stock issued pursuant to the
exercise of such Warrants and (b) any successors thereto or direct or
successive transferees thereof; it being the intention of the parties
hereto that any successive holder of a Warrant, or the Common Stock
issued upon the exercise of such Warrant, which Warrant derived from an
Original JH Warrant, shall be included in this definition, provided
that any holder of shares of Common Stock issued upon the exercise of
any Original JH Warrant or any Warrant that derived from such Original
JH Warrant which shares have been, or derive from shares that have
been, publicly sold pursuant to a registration statement filed under
the Act or pursuant to Rule 144 shall, to the extent of its holdings of
such shares, be excluded from this definition. Any decisions to be made
by the Hancock Group Holders shall be made upon a vote of a majority in
interest of holders of the aforesaid Warrants and the aforesaid Common
Stock on the basis of the number of shares of Common Stock issuable
pursuant to such Warrants and the number of shares of such Common Stock
then held. Rights under this Agreement of successors, assigns and
transferees of Hancock Group Holders are subject to compliance with the
requirements of Section 1.13.
(i) The term "Northwestern Group Holders" means (a) The
Northwestern Mutual Life Insurance Company for so long as it holds any
Warrants issued on November 19, 1993 or on April 15, 1996
(collectively, the "Original NW Warrants") or any Common Stock issued
pursuant to the exercise of such Warrants and (b) any successors
thereto or direct or successive transferees thereof; it being the
intention of the parties hereto that any successive holder of a
Warrant, or the Common Stock issued upon the exercise of such Warrant,
which Warrant derived from an Original NW Warrant, shall be included in
this definition, provided that any holder of shares of Common Stock
issued upon the exercise of any Original NW Warrant or any Warrant that
derived from such Original NW Warrant which shares have been, or derive
from shares that have been, publicly sold pursuant to a registration
statement filed under the Act or pursuant to Rule 144 shall, to the
extent of its holdings of such shares, be excluded from this
7-3
<PAGE>
definition. Any decisions to be made by the Northwestern Group Holders
shall be made upon a vote of a majority in interest of holders of the
aforesaid Warrants and the aforesaid Common Stock on the basis of the
number of shares of Common Stock issuable pursuant to such Warrants and
the number of shares of such Common Stock then held. Rights of
successors, assigns and transferees of Northwestern Group Holders are
subject to compliance with the requirements of Section 1.13.
(q) The term "Registrable Securities" means
(i) the Common Stock currently issued to the
Investors and the Stockholders,
(ii) all Common Stock issued or issuable to the
Investors, the Stockholders and the Bank Holders upon exercise or
conversion, as the case may be, of the Warrants, the Bank Warrants,
other warrants, the options or the Series A Preferred Stock held by
them, and
(iii) all Common Stock issued (or issuable upon the
exercise of any Warrant, any Bank Warrant, any other warrant, any right
or any other security, which Warrant, Bank Warrant, other warrant,
right or other security is itself issued) as a dividend or other
distribution with respect to, or in exchange for or in replacement of,
the shares of Common Stock referenced in (i) and (ii) above, excluding
in all cases, however, any Registrable Securities sold by a person in a
transaction in which his rights under this Section 1 are not assigned.
(w) The term "Warrants" means the collective reference to (a)
those certain warrants issued by the Company to each of The
Northwestern Mutual Life Insurance Company, John Hancock Mutual Life
Insurance Company and North Atlantic Smaller Companies Trust PLC on
November 19, 1993 pursuant to that certain Warrant Agreement dated as
of November 19, 1993 and all warrants exchanged therefor or otherwise
subsequently issued in respect thereof under said Warrant Agreement and
(b) those certain warrants issued by the Company to each of The
Northwestern Mutual Life Insurance Company, John Hancock Mutual Life
Insurance Company and North Atlantic Smaller Companies Trust PLC on
April 15, 1996 pursuant to that certain Warrant Agreement dated as of
April 15, 1996 and all warrants exchanged therefor or otherwise
subsequently issued in respect thereof under said Warrant Agreement.
(x) The term "Warrant Group Holders" means (a) John Hancock
Mutual Life Insurance Company, The Northwestern Mutual Life Insurance
Company and North Atlantic Smaller Companies Trust PLC for so long as
such persons hold any warrants issued on November 19, 1993 or on April
15, 1996 (collectively, the "Original Warrants") or any Common Stock
7-4
<PAGE>
issued pursuant to the exercise of such Warrants and (b) any successors
thereto or direct or successive transferees thereof; it being the
intention of the parties hereto that any successive holder of a
Warrant, or the Common Stock issued upon the exercise of such Warrant,
which Warrant derived from an Original Warrant, shall be included in
this definition, provided that any holder of shares of Common Stock
issued upon the exercise of any Original Warrant (or any Warrant that
derived from such Original Warrant) which shares have been, or derive
from shares that have been, publicly sold pursuant to a registration
statement filed under the Act or pursuant to Rule 144 shall, to the
extent of its holdings of such shares, be excluded from this
definition. Any decisions to be made by the Warrant Group Holders
(including, without limitation, the decision to make a request under
Section 1.2(a) and Section 1.12(a)) shall be made upon a vote of
sixty-seven percent (67%) in interest of holders of the aforesaid
Warrants and the aforesaid Common Stock on the basis of the number of
shares of Common Stock issuable pursuant to such Warrants and the
number of shares of such Common Stock then held. Rights under this
Agreement of successors, assigns and transferees of Warrant Group
Holders are subject to compliance with the requirements of Section
1.13.
(b) The following definitions are hereby added to
Section 1.1 of the Existing Registration Rights Agreement so as to preserve the
alphabetical ordering of the definitions set forth therein:
The term "Bank Holders" means (a) each of the banks
set forth on Schedule C hereto for so long as they holder any Bank
Warrants issued on April 15, 1996 (the "Original Bank Warrants") or any
Common Stock issued pursuant to the exercise of such Bank Warrants and
(b) any successors thereto or direct or successive transferees thereof;
it being the intention of the parties hereto that any successive holder
of a Bank Warrant, or the Common Stock issued upon the exercise of such
Bank Warrant, which Bank Warrant derived from an Original Bank Warrant,
shall be included in this definition, provided that any holder of
shares of Common Stock issued upon the exercise of any Original Bank
Warrant or any Bank Warrant that derived from such Original Bank
Warrant which shares have been, or derive from shares that have been,
publicly sold pursuant to a registration statement filed under the Act
or pursuant to Rule 144 shall, to the extent of its holdings of such
shares, be excluded from this definition. Any decisions to be made by
the Bank Holders shall be made upon a vote of a majority in interest of
holders of the aforesaid Bank Warrants and the aforesaid Common Stock
on the basis of the number of shares of Common Stock issuable pursuant
to such Bank Warrants and the number of shares of such Common Stock
then held. Rights of successors, assigns and transferees of Bank
7-5
<PAGE>
Holders are subject to compliance with the requirements of Section
1.13.
The term "Bank Warrants" means those certain warrants
issued by the Company to each of the banks set forth on Schedule C
hereto on April 15, 1996 pursuant to that certain Warrant Agreement
dated as of April 15, 1996 and all warrants exchanged therefor or
otherwise subsequently issued in respect thereof under said Warrant
Agreement, provided that, if the conditions set forth in said Warrant
Agreement for the 50% reduction of such warrants shall have been
satisfied, then "Bank Warrants" shall mean such warrants as so reduced.
2.2 Amendment to Section 1.2(b)(i) of the Existing
Registration Rights Agreement.
Clause (i) of Section 1.2(b) of the Existing Registration
Rights Agreement is hereby amended and restated in its entirety as follows:
(i) half of all Holders who are Stockholders
(or who derived their ownership of Registrable Securities
after the date hereof from Stockholders) or who are Bank
Holders (or who derived their ownership of Registrable
Securities after the date hereof from Bank Holders), provided,
however, if the registration is the IPO, in no event shall
Klein be allocated more than 430,000 shares of the Primary
Stockholders other than Klein be allocated more than 285,000
shares (in each case adjusted for stock splits, stock
dividends, combinations and other recapitalizations) and
2.3 Amendment to Section 1.8 of the Existing
Registration Rights Agreement
Clause (i) of Section 1.8 of the Existing Registration Rights
Agreement is hereby amended and restated in its entirety as follows:
(i) half of such piggyback securities are
allocated to all Holders who are Stockholders (or who derived
their ownership of Registrable Securities after the date
hereof from Stockholders) or who are Bank Holders (or who
derived their ownership of Registrable Securities after the
date hereof from Bank Holders)
2.4 Amendment to Section 1.12(f) of the Existing
Registration Rights Agreement
Clause (i) of Section 1.12(f) of the Existing Registration
Rights Agreement is hereby amended and restated in its entirety as follows:
7-6
<PAGE>
(i) half to all Holders who are Stockholders
(or who derived their ownership of Registrable Securities
after the date hereof from Stockholders) or who are Bank
Holders (or who derived their ownership of Registrable
Securities after the date hereof from Bank Holders), provided,
however, that in no event shall Klein be allocated more than
430,000 shares or the Primary Stockholders other than Klein be
allocated more than 285,000 shares (in each case adjusted for
stock splits, stock dividends, combinations and other
recapitalizations) and
2.5 Amendment to Section 2.7 of the Existing
Registration Rights Agreement
The following sentences are hereby added at the end of Section
2.7 of the Existing Registration Rights Agreement:
No amendment or waiver hereof that would adversely affect any
right in respect of the Bank Holders in a manner different
from the other Holders may be effected without the consent of
the Bank Holders. Except as set forth in the immediately
preceding sentence, no Bank Holder shall be entitled to any
vote under this Section 2.7.
2.6 Addition of Schedule C to Existing Registration
Rights Agreement
Schedule C hereto is hereby added to the Existing Registration
Rights Agreement as Schedule C.
Section 3. Miscellaneous.
3.1 Bank Holders to Become Parties
Each Bank Holder by executing this Amendment shall become a
party to, and shall be obligated and bound by the provisions of the Existing
Registration Rights Agreement, as amended by this Amendment. For purposes of the
avoidance of doubt, each Bank Holder acknowledges that
(a) it has no rights as an "Initiating Demand Holder"
(as such term is defined in the Existing Registration Rights Agreement)
under Section 1.2 of the Existing Registration Rights Agreement, as
amended hereby.
(b) it has no rights as a "Requesting Holder" (as
such term is defined in the Existing Registration Rights
Agreement) under Section 1.12 of the Existing Registration
Rights Agreement, as amended hereby.
7-7
<PAGE>
(c) the Bank Warrants are separate and distinct
from the "Warrants" (as such term is defined in the Existing
Registration Rights Agreement) and the 1996 Warrants, and
(d) the Bank Holders are not "Investors" (as such
term is defined in the Existing Registration Rights Agreement) and are
not entitled to any of the rights of the Investors under the Existing
Registration Rights Agreement, as amended hereby, and are not "Warrant
Group Holders" (as such term is defined in the Existing Registration
Rights Agreement) and are not entitled to any of the rights of Warrant
Group Holders under the Existing Registration Rights Agreement, as
amended hereby.
3.2 Governing Law
This Amendment shall be governed by and construed under the
laws of the State of New York as applied to agreements among New York residents
entered into and to be performed entirely within New York.
3.3 Duplicate Originals
Two or more duplicate originals of this Amendment may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument. This Amendment may be
executed in one or more counterparts and shall be effective when at least one
counterpart shall have been executed by each party hereto, and each set of
counterparts which, collectively, show execution by each party hereto shall
constitute one duplicate original.
3.4 Effect of this Amendment
Except as specifically provided in this Amendment, no terms or
provisions of the Existing Registration Rights Agreement have been modified or
changed by this Amendment and the terms and provisions of the Existing
Registration Rights Agreement, as amended hereby, shall continue in full force
and effect. This Amendment and the amendments contained herein shall have and be
in effect on and after the date hereof upon the execution and delivery hereof by
each of the Investors, Stockholders, Bank Holders and the Company.
3.5 Section Headings
The titles of the sections hereof appear as a matter of
convenience only, do not constitute a part of this Amendment and shall not
affect the construction hereof.
Section 4. Undertaking of the Company.
If this Amendment shall be determined to be unenforceable for
any reason or if the participation of the 1996 Warrants in any registration
7-8
<PAGE>
of Registrable Securities (as such term is defined in the Existing Registration
Rights Agreement) shall be enjoined or objected to by any party to the Existing
Registration Rights Agreement, the Company hereby covenants and agrees to enter
into a registration rights agreement with the holders of the 1996 Warrants
pursuant to which such holders shall be afforded rights and benefits with
respect to the 1996 Warrants substantially similar to those included in the
Existing Registration Rights Agreement.
[Remainder of Page Intentionally Blank.
Next Page is Signature Page.]
7-9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed on their behalf by a duly authorized officer or agent
thereof, as the case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By _______________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By _________________________
Name:
Title:
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By _________________________
Name:
Title:
NORTH ATLANTIC SMALLER
COMPANIES INVESTMENT TRUST
PLC
By _________________________
Name:
Title:
7-10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by a duly authorized officer or agent
thereof, as the case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By: ____________________________
James T. Schraith, President
Address: 1382 Bell Avenue
Tustin, California 92680
STOCKHOLDERS:
_________________________________
William A. Klein
Address: 1382 Bell Avenue
Tustin, California 92680
_________________________________
Richard C. Davis
Address: 1382 Bell Avenue
Tustin, California 92680
__________________________________
Myron Kunin
Address: Regis Corporation
7201 Metro Boulevard
Minneapolis, MN 55439
7-11
<PAGE>
INVESTORS:
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: ______________________________
Robert Finzi, Attorney-in-Fact
DLJ CAPITAL CORPORATION
By: ______________________________
Robert Finzi, Attorney-in-Fact
CANAAN VENTURE LIMITED PARTNERSHIP
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: _______________________________
General Partner
CANAAN VENTURE OFFSHORE LIMITED
PARTNERSHIP C.V.
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: ________________________________
General Partner
7-12
<PAGE>
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co., General
Partner
By: ________________________________
Robert H. Buescher,
General Partner
By: _________________________________
Robert H. Buescher,
Attorney-in-Fact
7-13
<PAGE>
Each of the undersigned Bank Holders agrees to be bound by the terms and
conditions of the Existing Registration Rights Agreement, as amended by this
Third Amendment to Registration Rights Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION
By_______________________________
Name:
Title:
SUMITOMO BANK OF CALIFORNIA
By_______________________________
Name:
Title:
BHF - BANK AKTIENGESELLSCHAFT
By_______________________________
Name:
Title:
COMERICA BANK - CALIFORNIA
By_______________________________
Name:
Title:
7-14
<PAGE>
Schedule A
Schedule of Investors
Warrant Investors
The Northwestern Mutual Life Insurance
Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
John Hancock Mutual Life Insurance
Company
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
North Atlantic Smaller Companies
Trust PLC
c/o J.O. Hambro & Co., Ltd.
30 Queen Anne's Gate
London, England SW1H9AL
Independent Equity Group
Number of Shares
of Preferred
Name Stock Held
Sprout Growth II, L.P. 847,065
DLJ Capital Corp. 86,268
Canaan Venture Limited Partnership 116,821
Canaan Venture Offshore Limited 279,179
Partnership
Deepak Kamra 4,000
Bessemer Venture Partners II L.P. 431,478
Neil H. Brownstein 3,333
Robert H. Buescher 1,000
C. Samantha Chen 300
Rodney A. Cohen 200
Richard R. Davis 1,000
Adam P. Godfrey 200
Barbara M. Henagan 667
Robert D. Lindsay 667
7-15
<PAGE>
Bradford Mills 2,000
Thomas F. Ruhm 266
Ward W. Woods, Jr. 3,333
Leo & Nicole Arnaboldi,
JTWROS 2,000
Perry H. Braun 800
Norman H. Brown, Jr. 2,000
John G. Danhakl 1,067
Hoyt L. Davidson 3,000
Thompson Dean 1,000
Peter K. Deeks 3,000
Ralph L. DeGroff, Jr. 1,000
Anthony M. DeLuise 2,667
David L. Dennis 2,667
Thomas S. DePre 2,000
Robert E. Diemar 1,500
Robert Finzi 3,500
Daniel K. Flatley 1,700
Mark K. Gormley 3,000
Joyce I. Greenberg 2,200
Thomas G. Greig, III 5,000
James D. Hann & Bonnie
J. Hann, JTWROS 3,000
Douglas M. Hayes 1,800
Stephen J. Ketchum 10,000
Richard E. Kroon 5,200
Frederick C. Lane 3,200
Mark Lanigan 2,133
Steven E. Lebow 2,667
Brian McLoughlin 1,300
Kenneth David Moelis 2,667
& Julie Lynn Moelis
Trustees Under The
Moelis Family Trust
John Joseph Navin, III 4,000
Michael R. Nicolais 3,400
7-16
<PAGE>
Peter J. Nolan 2,667
Steven G. Puccinelli 1,000
Larry E. Reeder 5,200
Elan Adiel Schultz 500
James T. Sington 1,600
Jon R. Stone 2,121
Steven F. Strandberg 1,000
Kenneth A. Tucker 3,000
R. Scott Turricchi 2,667
Warren Woo 1,067
Kirk B. Wortman 600
TOTAL 1,876,667
shares of preferred
stock outstanding
7-17
<PAGE>
Schedule B
Schedule of Stockholders
Catherine Bartholomew
Frank Cameron
Tom Cherry
Roberta Claborn
David O. Creasman
Raymond Cruz
Richard C. Davis
Randle Dewees
Edward Diaz
Susan Eaton
Harry Edmiston
Dennis Fandrich
Jon Gill
Jacqueline Gillett
Gary Graff
Nelson Guillory
Peggy Hams
Jerome Jacobson
James Jones
Roberta Kean
Jennifer Klein
Melissa Klein
William A. Klein
Myron Kunin
Pollianna Lewis
Van Nguyen
Richard Ollech
Thomas D. Pipkin
Juanita Pitts
Keith Rathbone
Richard Richardson
Vincent E. Simpson
Grover Smith
Joyce Valdez
Earnest Vernon
Alan Weaver
Theodore J. Wisniewski
7-18
<PAGE>
Schedule C
Schedule of Bank Holders
Wells Fargo Bank, National Association
Sumitomo Bank of California
BHF - Bank Aktiengesellschaft
Comerica Bank - California
7-19
<PAGE>
EXHIBIT 7
FOURTH AMENDMENT TO
THE REGISTRATION RIGHTS AGREEMENT
THIS FOURTH AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
(this "Amendment") is made effective as of the 10th day of June, 1996, by and
among The Cerplex Group, Inc., a Delaware corporation (the "Company"), the
investors listed on Schedule A hereto, each of which is herein referred to as an
"Investor" and collectively as the "Investors," the security holders of the
Company listed on Schedule B hereto, each of which is herein referred to as a
"Stockholder" and collectively as the "Stockholders," the banks listed on
Schedule C hereto, each of which is herein referred to as a "Bank Holder" and
collectively as the "Bank Holders" and each of the parties listed on Schedule D
hereto, each of which is herein referred to as a "Series B Preferred Holder" and
collectively as the "Series B Preferred Holders."
RECITALS:
A. The Company, the Investors, the Stockholders, and certain
other investors and stockholders entered into a Registration Rights Agreement
dated November 19, 1993 (as in effect prior to the effectiveness of this
Amendment, the "Existing Registration Rights Agreement").
B. Pursuant to a Waiver and Amendment Agreement, dated as of
April 15, 1996, among The Northwestern Mutual Life Insurance Company, John
Hancock Mutual Life Insurance Company and North Atlantic Smaller Companies
Investment Trust PLC (each individually, a "Warrant Group Holder" and
collectively, the "Warrant Group Holders") and the Company, and a Warrant
Agreement dated as of April 15, 1996, among the Warrant Group Holders and the
Company, the Company issued one million (1,000,000) warrants (the "1996
Warrants") to purchase Common Stock (as such term is defined in the Existing
Registration Rights Agreement) to the Warrant Group Holders.
C. Pursuant to a First Amendment to Credit Agreement and
Limited Waiver (the "Bank Amendment and Waiver Agreement"), dated as of April
15, 1996, among the Company, Wells Fargo Bank, National Association, as
Administrative Agent, and the Bank Holders and a Warrant Agreement (the "Bank
Warrant Agreement"), dated as of April 15, 1996, among the Company and the Bank
Holders, the Company issued one hundred twenty-five thousand (125,000) warrants
(the "Bank Warrants") to purchase Common Stock (as such term is defined in the
Existing Registration Rights Agreement) to the Bank Holders.
7-20
<PAGE>
D. Pursuant to the Third Amendment to the Existing
Registration Rights Agreement, dated as of April 15, 1996, by and among the
Company, the Investors, the Stockholders and the Bank Holders, the shares of
Common Stock issuable upon exercise of the Bank Warrants and the 1996 Warrants
have been made subject to the Existing Registration Rights Agreement.
E. The Company and the Series B Preferred Holders (as defined
herein) are parties to the Stock Purchase Agreement of even date herewith (the
"Series B Agreement") pursuant to which Series B Preferred Holders have
purchased an aggregate of 8,000 shares of the Company's Series B Preferred
Stock; and in order to induce the Company and the Series B Preferred Holders to
enter into the Series B Agreement, the Series B Preferred Holders and the
Company hereby agree that the Existing Registration Rights Agreement as hereby
amended shall govern the rights of the Series B Preferred Holders to cause the
Company to register shares of Common Stock issuable to the Series B Preferred
Holders upon the conversion of the Series B Preferred Stock and certain other
matters set forth herein.
F. The parties to the Existing Registration Rights Agreement
wish to amend the terms thereof to (i) permit the Bank Holders certain
additional rights hereunder and (ii) permit the Series B Preferred Holders
certain rights.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINED TERMS
Terms used herein without definition shall have the meaning
given such terms in the Existing Registration Rights Agreement. The terms
specified below are hereby incorporated, as applicable, into the Existing
Registration Rights Agreement. As used in this Amendment, the following terms
have the respective meanings specified below:
"Additional Shares" -- has the meaning given such term in
Section 1.2(b) of the Existing Registration Rights Agreement,
as amended hereby
"Amendment, this" -- means this Fourth Amendment to the
Existing Registration Rights Agreement
"Deficiency" -- has the meaning given such term in Section
1.2(f) of the Existing Registration Rights Agreement, as
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amended hereby "Effectiveness Period" -- has the meaning given
such term in Section 1.19(a) of the Existing Registration
Rights Agreement, as amended hereby
"Excess Shares" -- has the meaning given such term in Section
1.2(f) of the Existing Registration Rights Agreement, as
amended hereby
"Existing Registration Rights Agreement" -- Recital A
"NASD" means the National Association of Securities
Dealers, Inc.
"Non-Initiating Holder" -- has the meaning given such term in
Section 1.2(b) of the Existing Registration Rights Agreement,
as amended hereby
"Non-Requesting Holder" -- has the meaning given such term in
Section 1.12(f) of the Existing Registration Rights Agreement,
as amended hereby
"Selling Group" -- shall have the meaning given such
term in Section 1.6
"Series B Agreement" -- Recital E
"Shelf Registration" -- has the meaning given such term in
Section 1.19(a) of the Existing Registration Rights Agreement,
as amended hereby
"Shortage" -- shall have the meaning given such term in
Section 1.2(b) of the Existing Registration Rights Agreement,
as amended hereby
"Shortfall" has the meaning given such term in Section
1.2(b) of the Existing Registration Rights Agreement,
as amended hereby
"Sprout" -- means (a) (x) The Sprout Group, and any affiliates
thereof, Sprout Growth II, L.P., or (y) DLJ Capital
Corporation or any subsidiaries or affiliates thereof, as the
case may be, for so long as it holds any warrants on the date
hereof issued pursuant to the Existing Registration Rights
Agreement (the "Original Sprout Warrants") or any Common Stock
issued pursuant to the exercise of such Warrants and (b) any
successors thereto or direct or successive transferees
thereof; it being the intention of the parties hereto that any
successive holder of a warrant, or the Common Stock issued
upon the exercise of such warrant, which warrant derived from
an Original Sprout Warrant, shall be included in this
definition, provided that any holder of shares of Common Stock
issued upon the exercise of any Original Sprout Warrant or any
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warrant that derived from such Original Sprout Warrant which
shares have been, or derive from shares that have been,
publicly sold pursuant to a registration statement filed under
the Act or pursuant to Rule 144 shall, to the extent of its
holdings of such shares, be excluded from this definition.
Rights under this Agreement of successors, assigns and
transferees of Sprout Holders are subject to compliance with
the requirements of Section 1.13 of the Existing Registration
Rights Agreement.
SECTION 2. AMENDMENTS
2.1 Amendments to Section 1.1 of the Existing
Registration Rights Agreement
(a) Section 1.1 of the Existing Registration Rights Agreement
is hereby amended by amending and restating the following definition, in its
entirety, as set forth below:
(q) The term "Registrable Securities" means
(i) the Common Stock currently issued to the
Investors and the Stockholders,
(ii) all Common Stock issued or issuable to the
Investors, the Stockholders, the Bank Holders and the Series B
Preferred Holders upon exercise or conversion, as the case may
be, of the Warrants, the Bank Warrants, other warrants,
options or the Series B Preferred Stock held by them, and
(iii) all Common Stock issued (or issuable upon
the exercise or conversion, as the case may be, of any
Warrant, any Bank Warrant, any other warrant, option or the
Series B Preferred Stock, any right or any other security,
which Warrant, Bank Warrant, Series B Preferred Stock, other
warrant, right, any other security or option is itself issued)
as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Common Stock
referenced in (i) and (ii) above,
excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his rights under this Section 1 are
not assigned.
(b) The following definitions are hereby added to Section 1.1
of the Existing Registration Rights Agreement so as to preserve the alphabetical
ordering of the definitions set forth therein.
The term "Series B Preferred Holders" means (a) each
of the entities, or persons, as the case may be, set forth on
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Schedule D hereto, for so long as they hold any shares of
Series B Preferred Stock or any Common Stock issued pursuant
to the conversion of such shares and (b) any successors
thereto or direct or successive transferees thereof; it being
the intention of the parties hereto that any successive holder
of Series B Preferred Stock, or the Common Stock issued upon
the conversion of such Series B Preferred Stock, shall be
included in this definition, provided that any Holder of
shares of Common Stock issued upon the conversion of any share
of Series B Preferred Stock that has been, or derives from any
share that has been, publicly sold pursuant to a registration
statement filed under the Act or pursuant to Rule 144 shall,
to the extent of its holdings of such shares, be excluded from
this definition.
Any decisions to be made by the Series B Preferred
Holders shall be made upon a vote of a majority in interest of
Series B Preferred Holders on the basis of the number of
shares of Common Stock issuable upon conversion of Series B
Preferred Stock and the number of shares of such Common Stock
then held. Rights of successors, assigns and transferees of
Series B Preferred Holders are subject to compliance with the
requirements of Section 1.13.
The term "Series B Preferred Stock" means that
certain series of Preferred Stock designated Series B, having
par value of $0.001 per share, enjoying the rights and
privileges set forth in that Certificate of Designation of the
Company as in effect on the date hereof.
2.2 Amendments to Section 1.2
(a) Section 1.2(a) of the Existing Registration Rights
Agreement is hereby amended by deleting the word "and" at the end of clause
(ii), by deleting the period at the end of clause (iii) and replacing it with a
semi-colon, and by adding the following clauses after clause (iii):
(iv) the Bank Holders may request one (1)
registration under this Section 1.2; and
(v) the Series B Preferred Holders may
request one (1) registration under this Section 1.2.
(b) Section 1.2(b) of the Existing Registration Rights
Agreement is hereby amended to delete the first full paragraph and such
paragraph is restated in its entirety as follows:
If the Initiating Demand Holder in respect of any
registration requested under this Section 1.2 intends to
distribute the Registrable Securities covered by its
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request by means of an underwriting, it shall so advise the
Company as a part of its request made pursuant to subsection
1.2(a) and the Company shall include such information in the
written notice referred to in subsection 1.2(a)(A). The
underwriter will be one or more underwriting firms of
recognized national standing selected, after consultation with
the Initiating Demand Holder, by the Company and shall be
acceptable to the Initiating Demand Holder, which shall not
unreasonably withhold its acceptance of such underwriters,
provided that any Original Warrantholder, Independent Equity
Group Holder or Series B Preferred Holder that constitutes, in
whole or part, the Initiating Demand Holder may require the
managing underwriter so selected above to invite not more than
one (1) underwriter selected by such Original Warrantholder,
Independent Equity Group Holder or Series B Preferred Holder
to join the selling syndicate in respect of such registration.
In such event, the right of any Holder to include his
Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such
underwriting and inclusion in the underwriting of the
Registrable Securities of such Holder in such registration
(unless otherwise mutually agreed by the Initiating Demand
Holder and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in
subsection 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected
for such underwriting, all as contemplated by subsection
1.4(e). Notwithstanding any other provision of this Section
1.2, if the underwriter advises the Initiating Demand Holder
that the number of securities requested to be included in such
registration exceeds the number that can be sold in such
offering within a price range acceptable to the Initiating
Demand Holder (such advice to state the basis of such opinion
and the approximate number of shares of Registrable Securities
that may be included in such offering without such effect),
then the Initiating Demand Holder shall so advise all Holders
of Registrable Securities which would otherwise be included in
such registration pursuant hereto, and the number of shares of
Registrable Securities that may be so included shall be
allocated as follows:
(i) All of the Registrable Securities of the
Initiating Demand Holder and each member (or who
derived their ownership of Registrable Securities
after the date hereof from such Holder) of the
applicable group (as set forth in Section 1.2(a)(i)
through and including 1.2(a)(v) (a "group") to which
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such Holder belongs, shall first be included in such
registration; provided, however, in the event the
number of Registrable Securities requested to be
included in such Registration by the Holders in such
group exceeds the number of shares which may be
included in such registration, such allocation shall
be made among the Holders of such group pro rata
based upon the number of Registrable Securities owned
by each such Holder. For the purposes of determining
to which group Sprout belongs any Original Sprout
Warrant received, or the Common Stock received upon
the exercise thereof, shall, if applicable, be
included in the Independent Equity Group and any
shares of Series B Preferred Stock, or Common Stock
received upon the conversion thereof, shall be
included, if applicable, with those of the Series B
Preferred Holders; and
(ii) in the event that the number of
Registrable Securities includable in such
registration exceeds the number of Registrable
Securities includable therein pursuant to the
foregoing clause (i) (such securities "Additional
Shares"), then in such case, such Additional Shares
shall be allocated to the Holders of Registrable
Securities which are not members of the group to
which the Initiating Demand Holder belongs but which
have requested inclusion in the registration (the
"Non-Initiating Holders") on a pro rata basis (as
nearly as practicable) based on the number of
Registrable Securities held by each. In the event
this clause (ii) is applicable, and for purposes of
effecting the calculations provided for herein, the
number of Registrable Securities owned by all of the
Primary Stockholders as a group shall be deemed to be
equal to the number of Registrable Securities owned
by the Investors as a group (not counting for this
purpose any Investor that is a member of the group to
which the Initiating Demand Holder belongs and any
Common Stock issued, or issuable, upon conversion of
the Series B Preferred Stock owned by Sprout). As
such, each Primary Stockholder who is a
Non-Initiating Holder shall be deemed for the
purposes of the computations in this paragraph to own
a proportionately smaller number of shares. In
addition, to the extent the Registrable Securities in
respect of the 1996 Warrants result in an allocation
of Additional Shares to the Independent Equity Group
under this clause (ii) that is less than it would
have been if there had been no issuance of 1996
Warrants (such deficiency is referred to herein as
the "Shortfall"), the Primary Stockholders will be
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deemed, for purposes of this clause (ii), to have
assigned to the Independent Equity Group a number of
Additional Shares that would have otherwise been
allocated to such Primary Stockholders equal to 50%
of such Shortfall.
The number of shares of Registrable Securities to be included
in such underwriting shall not be reduced unless all other
securities (including, without limitation, any securities of
the Company or any other person then included in such
registration, as contemplated by the immediately succeeding
sentence) are first entirely excluded from the underwriting.
The Company will not register securities for sale for the
account of any person other than Holders of Registrable
Securities participating in such registration and the Company
in connection with any registration pursuant to this Section
1.2 unless it shall have obtained the prior written consent of
the Initiating Demand Holder or unless the requirements of
Section 1.14 have been fully satisfied in respect of such
other securities. Upon receipt of such consent, the Company
will notify each Holder of Registrable Securities requesting
participation in such registration of such consent.
(c) Section 1.2(d) of the Existing Registration Rights
Agreement is hereby amended so that clause "(ii)" shall be renumbered as clause
"(iii)" and the following clause shall be added as clause "(ii)":
A registration statement effected pursuant to Section
1.19 shall not preclude a request or a demand under Section
1.2 or a registration, public offering or distribution in
respect thereof. The Holders acknowledge and agree that upon
the receipt from a Holder of a request under Section 1.2, no
other request under this Section 1.2 or Section 1.12 need be
honored by the Company pending the discharge or withdrawal of
such request, and the first such request under this Section
1.2 or Section 1.12, as the case may be, shall preempt all
other such requests until such time as the procedures and
processes that commence upon the receipt of such request shall
have been completed in a manner consistent with the intent
hereof or such request is withdrawn.
2.3 Amendment to Section 1.3 of the Existing
Registration Rights Agreement
Section 1.3 of the Existing Registration Rights Agreement is
hereby amended to add "(i)" before the word "If" in the first sentence of
Section 1.3 and to add the following paragraph as Section 1.3(b):
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(b) In the event that the Company has filed, or
files, a registration statement within thirty (30) days of
receipt of a notice under Section 1.2 or 1.12, pursuant to
this Section 1.3, then the Company shall not be required to
honor any demand under Section 1.2 or 1.12 until the earlier
of (i) one hundred twenty days following the date of such
notice or (ii) such date as the Company is no longer using its
best efforts to effect such offering (including, without
limitation, the date the Company withdraws such registration
statement).
2.4 Amendment to Section 1.4(e) of the Existing
Registration Rights Agreement
Section 1.4(e) of the Existing Registration Rights Agreement
is hereby amended to add ", Bank Holders or Series B Preferred Holders" after
the word "Investors" but before the word "shall" in the last sentence of Section
1.4(e).
2.5 Amendment to Section 1.6 of the Existing
Registration Rights Agreement
Section 1.6 of the Existing Registration Rights Agreement is
hereby amended so that all of the words from "All expenses" up to, but not
including "provided, however," are deleted and replaced with the following:
All expenses other than underwriting discounts and
commissions incurred in connection with registrations, filings
or qualifications pursuant to Section 1.2, Section 1.12 and
Section 1.19, including (without limitation) all registration,
filing and qualification fees of the Act and any other
securities or Blue Sky laws, printers and accounting fees,
fees and disbursements of counsel for the Company and the
Stockholders and the reasonable and customary fees and
disbursements of one counsel for the selling Investors, Bank
Holders and Series B Preferred Holders (collectively, the
"Selling Group") (excluding, however, any fees and
disbursements for special counsel for the Holders other than
such one counsel for the Selling Group; the Selling Group
shall appoint its counsel by a two-thirds vote of the
Registrable Securities of those Holders who are members of the
Selling Group then participating in such registration) shall
be borne and paid by the Company (which right in favor of the
Holders is assignable by the Holders as provided in Section
1.13);
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2.6 Amendment to Section 1.7 of the Existing
Registration Rights Agreement
Section 1.7 of the Existing Registration Rights
Agreement is hereby amended so that the words "selling Investors" are deleted
and replaced with the words "Selling Group" and the words "such Investors" are
replaced with "members of the Selling Group."
2.7 Amendment to Section 1.8 of the Existing
Registration Rights Agreement
Section 1.8 of the Existing Registration Rights Agreement
shall be deleted and restated in its entirety as follows:
1.8 Underwriting Requirements.
(a) In connection with any offering involving an
underwriting of securities of the Company referred to in
Section 1.3, the Company shall not be required under said
Section 1.3 to include any of the Holders' Registrable
Securities in such underwriting unless such Holders accept the
terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such
quantity as such underwriters determine in their sole
discretion will not jeopardize the success of the offering by
the Company. If the total amount of securities (other than
securities to have been originally offered under such offering
by the Company for its own account or for the account of
persons other than the Holders) requested by holders of such
securities (including Registrable Securities requested by the
Holders) to be included in such offering (with respect to any
such offering, the "piggyback securities") exceeds the amount
of securities that the underwriters determine in their sole
discretion can be sold without jeopardizing the success of the
sale of such originally offered securities, then the Company
shall be required to include in such offering only that number
of such piggyback securities, including Registrable
Securities, which the underwriters reasonably determine in
their sole discretion will not jeopardize the success of the
sale of said originally offered securities (the piggyback
securities to be so included in such offering to be
apportioned among the Holders (or who derived their ownership
of Registrable Securities after the date hereof from Holders)
on a pro rata basis, in proportion (as nearly as practicable)
to the amount of Registrable Securities owned by each such
Holder to the piggyback securities, provided, however, that
for purposes of such determination, the number of Registrable
Securities owned by all of the Primary Stockholders as a group
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shall be deemed to be equal to the number of Registrable
Securities owned by the Investors as a group (not counting for
this purpose any Series B Preferred Stock, or Common Stock
issued or issuable upon the conversion thereof, owned by
Sprout). As such, each Primary Stockholder shall be deemed for
the purposes of such calculations to own a proportionately
smaller number of shares. In addition, to the extent the
Registrable Securities in respect of the 1996 Warrants result
in an allocation of piggyback securities to the Independent
Equity Group under this Section 1.8 that is less than it would
have been if there had been no issuance of 1996 Warrants (such
deficiency is referred to herein as the "Shortage"), the
Primary Stockholders will be deemed, for purposes of this
Section 1.8, to have assigned to the Independent Equity Group
a number of piggyback securities that would have otherwise
been allocated to such Primary Stockholders equal to 50% of
such Shortage.
2.8 Amendment to Section 1.10(a) of the Existing
Registration Rights Agreement
Section 1.10(a) of the Existing Registration Rights Agreement
is amended so that the phrase ", Bank Holders or Series B Preferred Holders" is
included in the first parenthetical after the word "Investors" and before the
comma which follows the word "Investors."
2.9 Amendment to Section 1.12 of the Existing
Registration Rights Agreement
(a) Section 1.12(a) of the Existing Registration
Rights Agreement is hereby amended and restated in its entirety
as follows:
1.12 Form S-3 Registration. (a) One or more Holders
(such Holders are, with respect to each request made by them
under this Section 1.12, referred to collectively as a
"Requesting Holder") may make written requests of the Company
to effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of
the Registrable Securities owned by such Requesting Holder,
provided that such Requesting Holder belongs to one or more of
the following: the Northwestern Group Holders, the Hancock
Group Holders, the Independent Equity Group Holders, the
Primary Stockholders, Bank Holders or Series B Preferred
Holders.
(b) Section 1.12 of the Existing Registration Rights
Agreement is hereby amended to include the following as "Section
1.12(g)":
A registration statement effected pursuant to
Section 1.19 shall not preclude a request or a demand
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under Section 1.12 or a registration, public offering or
distribution, in respect thereof. The Holders acknowledge and
agree that upon the receipt from a Holder of a request under
Section 1.12, no other request under this Section 1.12 or
Section 1.2 need be honored by the Company pending discharge
or withdrawal of such request, and the first such request
under this Section 1.12 or Section 1.2, as the case may be,
shall preempt all other such requests until such time as the
procedures and processes that commence upon the receipt of
such request shall have been completed in a manner consistent
with the intent hereof or such request is withdrawn.
(c) Section 1.12(b)(ii)(D) of the Existing Registration Rights
Agreement is amended to add the following language after "Section 1.12" and
before the ";":
provided, however, that in no event shall a registration
effected pursuant to Section 1.12(a) be counted for the
purposes of this Section 1.12(b)(ii)(D) if such firmly
underwritten registration statement on Form S-3 was initiated
by a Bank Holder or a Series B Preferred Holder as a
"Requesting Holder" under Section 1.12.
(d) Section 1.12(b)(ii)(E) of the Existing Registration
Rights Agreement is hereby amended so that "five (5)" is deleted and replaced
with "seven (7)."
(e) Section 1.12(b)(ii)(F) of the Existing Registration
Rights Agreement shall be amended:
(F) if the Company has, within the 90-day period
preceding the date of such request, already effected an
underwritten registration statement.
(f) Section 1.12(f)(i) and (ii) are hereby amended and
restated in their entirety as follows:
(i) All of the Registrable Securities of the
Requesting Holder and each member (or who derived their
ownership of Registrable Securities after the date hereof from
such Holder) of the applicable group (as set forth in Section
1.12(a) (a "group")) to which such Holder belongs, shall first
be included in such registration; provided, however, in the
event the number of Registrable Securities requested to be
included in such Registration by the Holders in such group
exceeds the number of shares which may be included in such
registration, such allocation shall be made among the Holders
of such group pro rata based upon the number of Registrable
Securities owned by each such Holder. For the purposes of
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determining to which group Sprout belongs any Original Sprout
Warrant received, or the Common Stock received upon the
exercise thereof, shall, if applicable, be included in
Independent Equity Group and any shares of Series B Preferred
Stock, or Common Stock received upon the conversion thereof,
shall be included, if applicable, with those of the Series B
Preferred Holders; and
(ii) in the event that the number of Registrable
Securities includable in such registration exceeds the number
of Registrable Securities includable therein pursuant to the
foregoing clause (i) (such securities "Excess Shares"), then
in such case, such Excess Shares shall be allocated to the
Holders of Registrable Securities which are not members of the
group to which the Requesting Holder belongs but which have
requested inclusion in the registration (the "Non-Requesting
Holders") on a pro rata basis (as nearly as practicable) based
on the number of Registrable Securities held by each. In the
event this clause (ii) is applicable, and for purposes of
effecting the calculations provided for herein, the number of
Registrable Securities owned by all of the Primary
Stockholders as a group shall be deemed to be equal to the
number of Registrable Securities owned by the Investors as a
group (not counting for this purpose any Investor that is a
member of the group to which the Requesting Holder belongs and
any Common Stock issued, or issuable, upon conversion of the
Series B Preferred owned by Sprout). As such, each Primary
Stockholder who is a Non-Requesting Holder shall be deemed for
the purposes of the computations in this paragraph to own a
proportionately smaller number of shares. In addition, to the
extent the Registrable Securities in respect of the 1996
Warrants result in an allocation of Excess Shares to the
Independent Equity Group under this clause (ii) that is less
than it would have been if there had been no issuance of 1996
Warrants (such deficiency is referred to herein as the
"Deficiency"), the Primary Stockholders will be deemed, for
purposes of this clause (ii), to have assigned to the
Independent Equity Group a number of Excess Shares that would
have otherwise been allocated to such Primary Stockholders
equal to 50% of such Deficiency.
2.10 Amendment to Section 1.14 of the Existing
Registration Rights Agreement
Section 1.14 of the Existing Registration Rights Agreement is
hereby amended so that the phrase "without the prior written consent of the
Investors holding two-thirds of the Registrable Securities held by Investors,"
is replaced with the phrase "without the prior written consent of the Investors
and Series B Preferred Holders collectively holding two-thirds of the
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aggregate Registrable Securities held by the Investors and the Series B
Preferred Holders."
2.11 Modification of Section 1.15 of the Existing
Registration Rights Agreement
Section 1.15 is hereby modified to delete the phrase
"in the case of a nonunderwritten offering."
2.12 Addition of Section 1.19 to Existing
Registration Rights Agreement
The following paragraphs are hereby added to the Existing
Registration Rights Agreement:
1.19 Shelf Registration.
(a) (i) The Company shall file, not later than one
hundred fifty (150) days after the date hereof, a "shelf"
registration statement (the "Shelf Registration") covering the
securities then constituting Registrable Securities (other
than shares held by Holders who are permitted, as of June 10,
1996, to sell all their shares during a three (3)-month period
under Rule 144 of the Act and the Registrable Securities of
Holders who have decided not to participate in a registration
under this Section 1.19) on any appropriate form, which shall
state that the subject Registrable Securities are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Act. The Company shall use its reasonable best
efforts to have the Shelf Registration declared effective as
soon as practicable after its filing and to keep the Shelf
Registration continuously effective and current for a period
of three (3) years following the date hereof or, if earlier,
until all Registrable Securities included therein have been
sold or can be sold within three months under Rule 144 of the
Act. If necessary, the Company shall cause to be filed, and
shall use its reasonable best efforts to have declared
effective as soon as practicable following filing, additional
"shelf" registration statements or amendments as necessary to
maintain such effectiveness for such period. It is understood,
however, that the Shelf Registration may be required to be
amended or suspended for reasonable periods of time from time
to time due to a variety of matters, including corporate
developments undertaken by the Company in good faith and for
valid business reasons such as the acquisition of third
parties or the divestiture of assets which developments may
require notice to the holders pursuant to Section 1.19(vii).
The Holders acknowledge that during these periods they may not
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be entitled to sell under the registration statement filed
pursuant to this Section 1.19.
(ii) Within ten (10) days of the filing of a
registration statement pursuant to this Section 1.19, the
Company shall give written notice of such fact to all Holders
(and shall deliver a copy of such registration statement to
all Holders). Within ten (10) days of the receipt thereof,
each Holder which desires its Registrable Securities to be
included in such registration statement shall provide notice
of such desire to the Company, and shall indicate the number
of Registrable Securities it holds that it wishes to be
included in such registration statement.
(b) The Holders acknowledge that the procedures
section in the subsequent subparagraph (c) of this Section
1.19 (the "Procedures") shall be applicable only to the shelf
registration described in the foregoing Subsection (a) and
that to the extent that any other provisions of this Agreement
conflict with the Procedures by reason of the application of
this Section 1.19, the Procedures shall govern such Shelf
Registration.
(c) The Company, in connection with its obligation
under Section 1.19, shall:
(i) Prepare and file with the SEC such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and
current for the period specified in Section 1.19(a) and comply
with the provisions of the Act with respect to the disposition
of all securities covered by such registration statement in
accordance with the Holders intended method of disposition set
forth in such registration statement for such period.
(ii) Make every reasonable effort to obtain the
withdrawal of any order or other action suspending the
effectiveness of any such registration statement or suspending
the qualification or registration (or exemption therefrom) of
the Registrable Securities for sale in any jurisdiction.
(iii) As soon as practicable after public
disclosure of any matters described in subsection (a) of this
Section 1.19 and in accordance with the Company's obligations
under the 1934 Act, the Act or the rules of the NASD or
otherwise, or as soon as practicable after the happening of
any other event that makes any statement made in such
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registration statements or registration statements or in any
related prospectus, prospectus supplement, amendment or
document incorporated therein by reference untrue in any
material respect or that requires the making of any changes in
such registration statement or registration statements or in
any such prospectus, supplement, amendment or other such
document so that 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 the case of any prospectus in the light of the
circumstances under which they were made) not misleading,
prepare a supplement or post-effective amendment to such
registration statement or to the related prospectus or any
document incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold
thereunder, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading.
(iv) Furnish to each Holder of Registrable
Securities covered by such registration statement such number
of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the
prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such
Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such
Holder.
(v) Promptly notify each Holder of
Registrable Securities covered by such registration statement
of any stop order issued or threatened by the SEC and take all
reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(vi) Use its best efforts to (i) register or
qualify the Registrable Securities under such other securities
or blue sky laws of such jurisdictions in the United States as
any Holder of Registrable Securities covered by such
registration statement shall reasonably request and (ii) cause
such Registrable Securities to be registered with or approved
by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the
Company and to do any and all other acts and things that may
be reasonably necessary or advisable to enable such Holder to
7-35
<PAGE>
consummate the disposition of the Registrable Securities owned
by such Holder; provided that the Company will not be required
to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for
this paragraph (vi), (B) subject itself to taxation in any
such jurisdiction or (C) consent to general service of process
in any such jurisdiction.
(vii) Promptly 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 Act, of the occurrence of any event as a result of
which the prospectus contained in such registration statement,
as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing,
and the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
promptly make available to each such Holder any such
supplement or amendment.
(viii) Use its best efforts to cause all such
Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are
then listed, if any.
(ix) The Company may require each Holder of
Registrable Securities included in such registration statement
to promptly furnish in writing to the Company such information
regarding distribution of the Registrable Securities as the
Company may from time to time reasonably request and such
other information as may be legally required in connection
with such.
(d) The following provisions of the Existing
Registration Rights Agreement shall be deemed deleted and
inapplicable to a registration statement effected under this
Section 1.19: Section 1.4(i), Section 1.4(k), Section 1.4(m)
and Section 1.10. In addition, in such event, the words "such
drafts" in Section 1.4 shall be deemed deleted in such event,
with respect to any Shelf Registration.
2.13 Addition of Section 1.20 to the Existing
Registration Rights Agreement
7-36
<PAGE>
The following paragraph is hereby added as Section 1.20 of the
Existing Registration Rights Agreement:
The Company agrees not to utilize its rights under
any of Sections 1.2(c) or 1.12(b)(ii)(C) based upon a
registration and/or public sale or distribution of Registrable
Securities effected under Section 1.12 or Section 1.19, in the
case of Section 1.2, or Section 1.2 or Section 1.19 in the
case of Section 1.12.
2.14 Amendment to Section 2.7 of the Existing
Registration Rights Agreement
Section 2.7 of the Existing Registration Rights Agreement is
hereby amended so that the phrase "the Series B Preferred Holders" is added to
the third sentence of Section 2.7 after each occurrence of the phrase "the
Independent Equity Group Holders."
2.15 Addition of Schedule D to Existing
Registration Rights Agreement
Schedule D hereto is hereby added to the Existing Registration
Rights Agreement as Schedule D.
SECTION 3. MISCELLANEOUS
3.1 Series B Preferred Holders to Become Parties
Each Series B Preferred Holder by executing this Amendment
shall become a party to, and shall be obligated and bound by the provisions of,
the Existing Registration Rights Agreement, as amended by this Amendment.
3.2 Governing Law.
This Amendment shall be governed by and construed under the
laws of the State of New York as applied to agreements among New York residents
entered into and to be performed entirely within New York.
3.3 Duplicate Originals.
Two or more duplicate originals of this Amendment may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument. This Amendment may be
executed in one or more counterparts and shall be effective when at least one
counterpart shall have been executed by each party hereto, and each set of
counterparts which, collectively, show execution by each party hereto shall
constitute one duplicate original.
3.4 Effect of this Amendment.
7-37
<PAGE>
Except as specifically provided in this Amendment, no terms or
provisions of the Existing Registration Rights Agreement have been modified or
changed by this Amendment and the terms and provisions of the Existing
Registration Rights Agreement, as amended hereby, shall continue in full force
and effect. This Amendment and the amendments contained herein shall have and be
in effect on and after the date hereof upon the execution by the Company and the
required number of each of the Investors, Stockholders, Bank Holders and Series
B Preferred Holders.
3.5 Section Headings.
The titles of the section hereof appear as a matter of
convenience only, do not constitute a part of this Amendment and shall not
affect the construction thereof.
7-38
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by a duly authorized officer or agent
thereof, as the case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By:____________________________
James T. Schraith, President
Address: 1382 Bell Avenue
Tustin, California 92680
STOCKHOLDERS:
____________________________
William A. Klein
Address: 1382 Bell Avenue
Tustin, California 92680
__________________________
Richard C. Davis
Address: 1382 Bell Avenue
Tustin, California 92680
__________________________
Myron Kunin
Address: Regis Corporation
7201 Metro Boulevard
Minneapolis, MN 55439
__________________________
Theodore J. Wisniewski
Address: 1382 Bell Avenue
Tustin, California 92680
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION REIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors,
Stockholders, Banks and Series B Preferred Holders listed
therein.]
7-39
<PAGE>
INVESTORS:
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
Managing General Partner
By: ___________________________
Robert Finzi, Attorney-in-Fact
DLJ CAPITAL CORPORATION
By: ___________________________
Robert Finzi, Attorney-in-Fact
CANAAN VENTURE LIMITED PARTNERSHIP
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: ___________________________
General Partner
CANAAN VENTURE OFFSHORE LIMITED
PARTNERSHIP C.V.
By: Canaan Management Limited
Partnership, General Partner
By: Canaan Venture Partners L.P.,
General Partner
By: ___________________________
General Partner
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION REIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors,
Stockholders, Banks and Series B Preferred Holders listed
therein.]
7-40
<PAGE>
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co.,
General Partner
By: ____________________________
Robert H. Buescher, General
Partner
By: ____________________________
Robert H. Buescher, Attorney-
in-Fact
BANK HOLDERS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: ____________________________
Name:
Title:
SUMITOMO BANK OF CALIFORNIA
By: ____________________________
Name:
Title:
BHF -- BANK AKTIENGESELLSCHAFT
By: ____________________________
Name:
Title:
COMERICA BANK -- CALIFORNIA
By: ____________________________
Name:
Title:
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION REIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors,
Stockholders, Banks and Series B Preferred Holders listed
therein.]
7-41
<PAGE>
WARRANT GROUP HOLDERS:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: ____________________________
Name:
Title:
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By: ____________________________
Name:
Title:
NORTH ATLANTIC SMALLER COMPANIES
TRUST PLC
By: ____________________________
Name:
Title:
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION REIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors,
Stockholders, Banks and Series B Preferred Holders listed
therein.]
7-42
<PAGE>
THE CERPLEX GROUP, INC.
By: ____________________________
Title:___________________________
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: General Managing Partner
By: ____________________________
Robert Finzi, Attorney-
in-Fact
DLJ CAPITAL CORPORATION
By: ____________________________
Robert Finzi, Attorney-in-Fact
SCORPION OFFSHORE INVESTMENT FUND
By: ____________________________
Title:___________________________
THE & TRUST
By: ____________________________
Title:___________________________
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors and
Stockholders listed therein.]
7-43
<PAGE>
CHESTNUT PACIFIC LTD. PARTNERS
By: ____________________________
Title:___________________________
STANDARD GLOBAL EQUITY PARTNERS
L.P.
By: ____________________________
Title:___________________________
STANDARD PACIFIC CAPITAL OFFSHORE
FUND LTD.
By: ____________________________
Title:___________________________
COMMON FUND EQUITY FUND
By: ____________________________
Title:___________________________
_________________________________
MALCOLM FAIRBAIRN
_________________________________
EMILY FAIRBAIRN
_________________________________
WILLIAM MARTIN
_________________________________
NITIN T. MEHTA
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors and
Stockholders listed therein.]
7-44
<PAGE>
PLEIADES INVESTMENT PARTNERS PEAK INVESTMENTS LIMITED
PARTNERSHIP
By: _________________________ By: ____________________________
Title:_______________________ Title:___________________________
WHITMAN CAPITAL, INC.
By: ____________________________
Title:___________________________
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors and
Stockholders listed therein.]
7-45
<PAGE>
PEAK INVESTMENTS LIMITED
PARTNERSHIP
By: ____________________________
Title:___________________________
WHITMAN PARTNERS, L.P.
By: ____________________________
Title:___________________________
MAHUMA N.V.
By: ____________________________
Title:___________________________
[Signature Page to the FOURTH AMENDMENT TO REGISTRATION RIGHTS
AGREEMENT among THE CERPLEX GROUP, INC. and the Investors and
Stockholders listed therein.]
7-46
<PAGE>
EXHIBIT 8
Joint Filing Agreement
In accordance with Rule 13d-1(f)(1) under the Securities Exchange Act
of 1934, as amended (the "Act"), each of the persons named below agrees to the
joint filing of a Statement on Schedule 13D (including amendments thereto) with
respect to the common stock, par value $0.001 per share, of The Cerplex Group,
Inc. and further agrees that this Joint Filing Agreement be included as an
exhibit to such filings provided that, as contemplated by Rule 13d-1(f)(1)(ii)
under the Act, no person shall be responsible for the completeness or accuracy
of the information concerning the other persons making the filing, unless such
person knows or has reason to believe that such information is inaccurate. This
Joint Filing may be executed in any number of counterparts, all of which
together shall constitute one and the same instrument.
Date: August 6, 1996
Sprout Growth II, L.P.
By: DLJ Capital Corporation
its: Managing General Partner
By: /s/ Thomas E. Siegler
______________________________
Thomas E. Siegler
Secretary and Treasurer
DLJ Capital Corporation
By: /s/ Thomas E. Siegler
______________________________
Thomas E. Siegler
Secretary and Treasurer
8-1
<PAGE>
Donaldson, Lufkin & Jenrette Securities
Corporation
By: /s/ Thomas E. Siegler
____________________________
Thomas E. Siegler
Senior Vice President
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Thomas E. Siegler
____________________________
Thomas E. Siegler
Senior Vice President
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
____________________________
Alvin H. Fenichel
Senior Vice President and Controller
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
Uni Europe Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Alpha Assurances I.A.R.D. Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA
Voting Trustee
Signed on behalf of each of the above
By: /s/ Richard V. Silver
___________________________
Richard V. Silver
Attorney-in-fact
8-2
<PAGE>
EXHIBIT 9
Power of Attorney
AXA, a societe anonyme organized under the laws of the
Republic of France (the "Corporation"), hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the name,
place and stead of the Corporation, in any and all capacities, to execute for
and on behalf of the Corporation, all Schedules 13D and Schedules 13G as
required by the Securities Exchange Act of 1934, as amended, and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
the issuer and relevant stock exchanges (individually, each a "Filing");
provided, however, that unless specifically instructed in writing by the
Corporation, this Power of Attorney does not authorize any of the above-listed
attorneys-in-fact and agents of the Corporation (or any person substituted or
resubstituted therefor) to execute or file for or on behalf of the Corporation
any Filing with respect to (i) the Common Stock, par value $.01 per share, of
The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
AXA
By: /s/ Claude Bebear
_______________________
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
9-2
<PAGE>
EXHIBIT 9
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the
Repulic of France (the "Corporation"), hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the name,
place and stead of the Corporation, in any and all capacities, to execute for
and on behalf of the Corporation, all Schedules 13D and Schedules 13G as
required by the Securities Exchange Act of 1934, as amended, and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
the issuer and relevant stock exchanges (individually, each a "Filing");
provided, however, that unless specifically instructed in writing by the
Corporation, this Power of Attorney does not authorize any of the above-listed
attorneys-in-fact and agents of the Corporation (or any person substituted or
resubstituted therefor) to execute or file for or on behalf of the Corporation
any Filing with respect to (i) the Common Stock, par value $.01 per share, of
The Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-3
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
_________________________
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
9-4
<PAGE>
EXHIBIT 9
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-5
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
_______________________
Name: Claude Tendil
Title: Chief Executive Officer
9-6
<PAGE>
EXHIBIT 9
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-7
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
_______________________
Name: Claude Tendil
Title: Chief Executive Officer
9-8
<PAGE>
EXHIBIT 9
Power of Attorney
Uni Europe Assurance Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-9
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
UNI EUROPOE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
_______________________
Name: Claude Tendil
Title: Chief Executive Officer
9-10
<PAGE>
EXHIBIT 9
Power of Attorney
Alpha Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-11
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
ALPHA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
_____________________________
Name: Claude Tendil
Title: Chief Executive Officer
9-12
<PAGE>
EXHIBIT 9
Power of Attorney
Alpha Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Corporation and in the name, place and stead of the Corporation, in any
and all capacities, to execute for and on behalf of the Corporation, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute or
file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Corporation might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the
Corporation or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
9-13
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
ALPHA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
_____________________________
Name: Claude Tendil
Title: Chief Executive Officer
9-14
<PAGE>
EXHIBIT 9
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf of
the Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Trustee, this Power of Attorney does
not authorize any of the above-listed attorneys-in-fact and agents of the
Trustee (or any person substituted or resubstituted therefor) to execute or file
for or on behalf of the Trustee any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial Ownership
of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware
limited partnership. The Trustee hereby grants to such attorneys-in-fact and
agents of the Trustee full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as the Trustee might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Trustee or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at the
request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
9-15
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
By: /s/ Claude Bebear
______________________________
Name: Claude Bebear
Title: Voting Trustee
9-16
<PAGE>
EXHIBIT 9
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf of
the Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Trustee, this Power of Attorney does
not authorize any of the above-listed attorneys-in-fact and agents of the
Trustee (or any person substituted or resubstituted therefor) to execute or file
for or on behalf of the Trustee any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial Ownership
of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware
limited partnership. The Trustee hereby grants to such attorneys-in-fact and
agents of the Trustee full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as the Trustee might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Trustee or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at the
request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
9-17
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
By: /s/ Patrice Garnier
_____________________________
Name: Patrice Garnier
Title: Voting Trustee
9-18
<PAGE>
EXHIBIT 9
Power of Attorney
Henri de Clermont-Tonnerre, as a Voting Trustee (the
"Trustee"), pursuant to a Voting Trust Agreement dated as of May 12, 1992, by
and among AXA, a societe anonyme organized under the laws of Republic of France,
and the Voting Trustees identified therein, hereby constitutes and appoints each
of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trustee and in the name, place
and stead of the Trustee, in any and all capacities, to execute for and on
behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Trustee, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Trustee (or any person substituted or resubstituted therefor) to execute
or file for or on behalf of the Trustee any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Trustee hereby grants to such
attorneys-in-fact and agents of the Trustee full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Trustee might or could, and hereby
ratifies and confirms all that said attorneys-in-fact and agents of the Trustee
or their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at the
request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act of
1934.
The powers hereby conferred upon the said attorneys-in-fact
and agents shall continue in force until notice of the revocation of this Power
of Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
9-19
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 26 day of June, 1996.
By: /s/ Henri de Clermont-Tonnere
_____________________________
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
9-20
<PAGE>
