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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
April 2, 1999
Commission File No.: 0-14685
GENICOM CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 51 - 0271821
(State or other jurisdiction of (I.R.S.
incorporation or Employer
organization) Identification
No.)
14800 CONFERENCE CENTER DRIVE
SUITE 400, WESTFIELDS
CHANTILLY, VIRGINIA
(Address of principal 20151
executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (703) 802-9200
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GENICOM CORPORATION AND SUBSIDIARIES
FORM 8-K
Item 5. Other Items
(a) Seventh Amendment to Amended and Restated Credit
Agreement and Waiver:
On April 2, 1999, the Company's credit agreement with
NationsBank of Texas, N. A., as agent for a group of
banks, ("NationsBank") was amended. This amendment
establishes new terms and conditions for the loan
agreement through the current term ending September
2002. The amendment changes the financial covenants
to 1) minimum earnings before charges for interest,
total federal, state, local and foreign income, value
added and similar taxes, depreciation, and
amortization, 2) minimum net worth requirement, and 3)
a limit on 1999 capital expenditures of approximately
$19 million. In addition, the Company will be able to
borrow $10 million for short term liquidity, which can
be repaid on September 30, 1999, or extended on a
quarterly basis with consideration of 0.5% of the
liquidity facility outstanding. The interest rate on
the revolver and the additional $10 million is 3.5%
above LIBOR on Eurodollar loans. This amendment
extends the Company's current borrowing base formula
until June 2000.
In exchange for the amendment, the Company agreed to
pay an amendment fee of $1.2 million upon the earlier
of the payment in full of the credit facilities and
cancellation of all commitments, or the acceleration
by NationsBank of the Company's obligations. The
Company has further agreed to pay a continuation fee
on the last day of each fiscal quarter, beginning with
the fourth quarter of fiscal year 1999, until the
obligations are paid. The continuation fee is equal
to 0.5% of all obligations outstanding on the last day
of such fiscal quarter. NationsBank received the
rights to purchase warrants for one million shares of
GENICOM common stock at $1.94 per share. The warrants
have callable rights through March 31, 2000. The
Seventh Amendment reduces NationsBank's revolving
credit commitment to $62 million at the end of the
first fiscal quarter of 1999, $62 million at the end
of the second fiscal quarter of 1999, $58 million at
the end of the third fiscal quarter of 1999, and $52
million at the end of fiscal 1999.
(b) Amendment No. 1 to Cooperative Marketing, Support and
Development Agreement
As of February 27, 1998, GENICOM Corporation amended
its Cooperative Marketing, Support and Development
Agreement with Digital Equipment Corporation.
Item 7. Exhibits
10.1 Seventh Amendment to Amended and Restated Credit
Agreement
10.2 Amendment No.1 to Cooperative Marketing, Support
and Development Agreement
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GENICOM Corporation
--------------------------
Registrant
Date: April 9, 1999
/s/ Karen M. Morinelli
--------------------------
Signature
Karen M. Morinelli
Vice President, Human
Resources
(Ms. Morinelli is a
Corporate Vice President
and has been duly
authorized to sign on
behalf of the Registrant)
<PAGE> 1
Exhibit 10.1
SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of April 2, 1999, is by and among Genicom Corporation
(the "Borrower"), the subsidiaries of the Borrower identified on the
signature pages hereto (the "Guarantors"), the several lenders identified on
the signature pages hereto (each a "Lender" and, collectively, the "Lenders")
and NationsBank, N.A., successor by merger to NationsBank of Texas, N.A., as
agent for the Lenders (in such capacity, the "Agent").
WITNESSETH
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent
entered into that certain Amended and Restated Credit Agreement dated as of
September 5, 1997, as amended by that First Amendment to Amended and Restated
Credit Agreement dated as of October 31, 1997, as amended by that Second
Amendment to Amended and Restated Credit Agreement dated as of March 12,
1998, as amended by that letter agreement dated May 5, 1998, as amended by
that Fourth Amendment to Amended and Restated Credit Agreement and Waiver
dated as of July 2, 1998, as amended by that Fifth Amendment to Amended and
Restated Credit Agreement dated as of October 30, 1998, and as amended by
that Sixth Amendment to Amended and Restated Credit Agreement dated as of
February 11, 1999 (as so amended, the "Existing Credit Agreement"); and
WHEREAS, the parties have agreed to amend the Existing Credit Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
PART I
DEFINITIONS
1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Amendment No. 7 Effective Date" is defined in Part III.
2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 7
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement and
all other Credit Documents shall continue in full force and effect.
1. Amendment to Section 1.1. The following definitions appearing in
Section 1.1 of the Existing Credit Agreement are amended in their entirety to
read as follows:
"Applicable Percentage" means, for the purpose of calculating the
applicable interest rate for any day for any Eurodollar Loan or for any
Base Rate Loan, the applicable rate of the Unused Fee for any day for
purposes of Section 3.5(a), or the applicable rate of the Standby
Letter of Credit Fee for any day for purposes of Section 3.5(b)(i), the
appropriate applicable percentage set forth below:
<TABLE>
<CAPTION>
APPLICABLE
APPLICABLE APPLICABLE PERCENTAGE FOR APPLICABLE
PERCENTAGE FOR PERCENTAGE FOR STANDBY LETTER PERCENTAGE
EURODOLLAR LOANS BASE RATE LOANS OF CREDIT FEE FOR UNUSED FEE
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<S> <C> <C> <C>
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3.50% 2.25% 3.00% 0.50%
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</TABLE>
"Borrowing Base" means (i) as of any day prior to the end of the
second fiscal quarter in year 2000, the sum of (a) 85% of Eligible
Receivables and (b) 55% of Eligible Inventory, in each case as set
forth in the most recent Borrowing Base Report delivered to the Agent
and the Lenders in accordance with the terms of Section 7.1(e);
provided, however, that the amount determined pursuant to clause (b)
above shall not exceed 50% of the total Borrowing Base, and (ii) as of
any day on or after the end of the second fiscal quarter in the year
2000, the Original Borrowing Base.
"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender, the Tranche A Term Loan Commitment of such
Lender, the Tranche B Term Loan Commitment of such Lender and/or the
Liquidity Loan Commitment of such Lender, (ii) with respect to the
Swingline Lender, the Swingline Commitment, and (iii) with respect to
the Issuing Lender, the LOC Commitment.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in
the determination of Consolidated Net Income for such period, has been
deducted for (A) Consolidated Interest Expense, (B) total federal,
state, local and foreign income, value added and similar taxes, (C)
depreciation and amortization expense, and (D) if the Borrower is
required by its auditors to establish allowances for its deferred tax
asset, to reflect the non-cash charges in connection with such
allowances, all as determined in accordance with GAAP.
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"Consolidated Net Worth" means, at any time, total shareholders'
equity of the Borrower and its Subsidiaries on a consolidated basis at
such time, as determined in accordance with GAAP (but excluding in any
event foreign currency translation adjustments); provided, however,
that for the purpose of determining compliance with the financial
covenants contained in Sections 7.11(a), 7.11(d) and 7.11(h),
Consolidated Net Worth shall be adjusted upward (i) if the Borrower is
required by its auditors to establish allowances for its deferred tax
asset, to reflect the non-cash charges in connection with such
allowances and (ii) after July 3, 2000, to reflect up to $1,739,000 in
non-cash charges incurred during the fourth fiscal quarter of 1997 in
connection with the acquisition of certain assets of the printer
division of Digital Equipment Corporation.
"Eligible Assignees" means (i) any Lender or any Affiliate or
Subsidiary of a Lender, and (ii) any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) approved by the Agent.
"Eligible Inventory" means, as of any date of determination and
without duplication, the lower of the aggregate book value (based on a
FIFO or a moving average cost valuation, consistently applied) or fair
market value of all raw materials, work in process and finished goods
inventory owned by the Borrower less appropriate reserves determined in
accordance with GAAP but excluding in any event (i) inventory which is
(a) not subject to a perfected, first priority Lien in favor of the
Agent to secure the Borrower's Obligations or (b) subject to any other
Lien that is not a Permitted Lien, (ii) inventory which is not in good
condition or fails to meet standards for sale or use imposed by
governmental agencies, departments or divisions having regulatory
authority over such goods, (iii) inventory which is not useable or
saleable at prices approximating their cost in the ordinary course of
the Borrower's or Guarantor's business (including without duplication
the amount of any reserves for obsolescence, unsalability or decline in
value), (iv) inventory located outside of the United States, other than
inventory of the Borrower or any Guarantor in an aggregate amount not
to exceed $15,000,000 located in the Genicom International Distribution
Center in Colchester, Essex, England, or at such other locations in
U.S. territories and Western European countries as shall be acceptable
to the Agent in its sole discretion, (v) inventory located at a
location leased by the Borrower or Guarantor (including without
limitation the inventory located in Colchester, Essex, England
described in clause (iv) above) with respect to which the Agent or the
Required Lenders shall have requested and the Agent shall not have
received a landlord's waiver satisfactory to the Agent, (vi) inventory
which is leased or on consignment and (vii) inventory which fails to
meet such other specifications and requirements as may from time to
time be established by the Agent in its reasonable discretion.
"Loan or "Loans" means the Revolving Loans, the Tranche A Term
Loan, the Tranche B Term Loan, the Liquidity Loans (or any Revolving
Loan, any portion of the Tranche A Loan, any portion of the Tranche B
Loan or any Liquidity Loan bearing interest at the Base Rate or the
Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar
Loan), and/or the Swingline Loans, individually or collectively, as
appropriate.
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"Maturity Date" means (i) as to Revolving Loans, Letters of
Credit (and the related LOC Obligations), and the Tranche A Term Loan,
September 5, 2002, (ii) as to the Tranche B Term Loan, September 5,
2004, and (iii) as to the Liquidity Loans, September 30, 1999 or the
last day of the then applicable Liquidity Loan Extension Period, if
any, as provided in Section 2.7(f).
"Note" or "Notes" means any Revolving Note, the Swingline Note,
the Tranche A Term Note, the Tranche B Term Note, or any Liquidity
Note, as the context may require.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i), Section 2.5(b)(i), Section 2.6(b) or Section 2.7(b)(i).
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made by the Borrower or any of its Subsidiaries in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms; (iii) Investments consisting of stock,
obligations, securities or other property received by the Borrower or
any of its Subsidiaries in settlement of accounts receivable (created
in the ordinary course of business) from bankrupt obligors; (iv)
Investments existing as of the Closing Date and set forth in Schedule
1.1A, (v) additional Investments in any Subsidiary of the Borrower
which is a Guarantor; (vi) subject to the terms of Section 7.15(b),
Investments in Subsidiaries of the Borrower which are not Guarantors
existing as of June 15, 1998 and additional Investments in all such
Subsidiaries not to exceed an aggregate amount of $1,000,000 per year;
(vii) Guaranty Obligations permitted by Section 8.1; (viii)
acquisitions permitted by Section 8.4(c); (ix) transactions permitted
by Section 8.8; and (x) loans for borrowed for money to directors,
officers, employees, agents, customers or suppliers that do not exceed
an aggregate principal amount of $500,000 at any one time outstanding.
2. Addition to Section 1.1. The following new definitions are added
to Section 1.1 of the Existing Credit Agreement in the appropriate
alphabetical order to read as follows:
"Additional C1/Vantive Amount" shall have the meaning assigned to
such term in Section 7.11(f).
"Additional PP&E and Spares Amount" shall have the meaning
assigned to such term in Section 7.11(f).
"Amendment Fee" shall have the meaning assigned to such term in
Section 3.5(d).
"C1/Vantive Capital Expenditures" means, for any period, all
expenditures of the Borrower and its Subsidiaries on a consolidated
basis for such period, made in connection with the Oracle and Vantive
software system, associated hardware and associated costs for
implementation, as determined in accordance with GAAP.
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"Continuation Fee" shall have the meaning assigned to such term
in Section 3.5(e).
"Liquidity Continuation Amount" shall have the meaning assigned
to such term in Section 2.7(f).
"Liquidity Loans" shall have the meaning assigned to such term in
Section 2.7(a).
"Liquidity Loan Commitment" means, with respect to each Lender,
the commitment of each Lender to make its portion of the Liquidity Loan
in a principal amount equal to such Lender's Liquidity Loan Commitment
Percentage of the Liquidity Loan Committed Amount; provided, however,
to the extent the Borrower has elected an extension pursuant to Section
2.7(f), the portion of the Liquidity Loan Commitments in excess of the
Liquidity Continuation Amount shall be deemed to be canceled and the
Liquidity Loan Commitments shall be reduced to an amount equal to the
Liquidity Continuation Amount.
"Liquidity Loan Commitment Percentage" means, for any Lender, the
percentage identified as its Liquidity Loan Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.
"Liquidity Loan Committed Amount" shall have the meaning assigned
to such term in Section 2.7(a).
"Liquidity Loan Continuation Fee" shall have the meaning assigned
to such term in Section 3.5(c).
"Liquidity Loan Extension Period" shall have the meaning assigned
to such term in Section 2.7(f).
"Liquidity Note" means a promissory note of the Borrower in favor
of a Lender delivered pursuant to Section 2.7(e), and evidencing such
Lender's portion of the Liquidity Loan, as such promissory note may be
amended, modified, restated or replaced from time to time.
"PP&E and Spares Capital Expenditures" means, for any period, all
expenditures of the Borrower and its Subsidiaries on a consolidated
basis for such period, made in connection with the acquisition of
plant, property and equipment or comparable items and made in
connection with the acquisition and capitalization of spare parts
inventory, as determined in accordance with GAAP.
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3. Amendments to Section 2.1(a).
(a) Clause (a) of Section 2.1(a) of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
(a) the Revolving Committed Amount (hereinafter defined) (as
such aggregate maximum amount may be increased or reduced from
time to time as provided in Section 3.4),
(b) Section 2.1(a) of the Existing Credit Agreement is hereby
amended to add the following sentence to the end of such Section to
read as follows:
As used herein, "Revolving Committed Amount" means $62,000,000;
provided, however, the Revolving Commitment Amount shall decrease
to the following amounts on the date the Borrowing Base Report is
due for each of the following fiscal months:
<TABLE>
<CAPTION>
==================================================================
REVOLVING COMMITTED AMOUNT DATE
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<S> <C>
$61,000,000 June, 1999
------------------------------------------------------------------
$55,000,000 September, 1999
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$52,000,000 December, 1999
==================================================================
</TABLE>
4. New Section 2.7. A new Section 2.7 is hereby added to the
Existing Credit Agreement immediately following Section 2.6 thereof which
shall read as follows:
2.7 Liquidity Loan.
(a) Liquidity Loan Commitment. Subject to and upon the
terms and conditions hereof and in reliance upon the
representations and warranties set forth herein, each Lender
agrees, severally and not jointly, to make available to the
Borrower such Lender's Liquidity Loan Commitment Percentage of
loans in Dollars ("Liquidity Loans") from time to time beginning
on Amendment No. 7 Effective Date until the Maturity Date, or
such earlier date as the Liquidity Loan Commitments shall have
been terminated as provided herein for the purposes hereinafter
set forth; provided, however, that the sum of the aggregate
principal amount of outstanding Liquidity Loans shall not exceed
TEN MILLION DOLLARS ($10,000,000.00) (the "Liquidity Loan
Committed Amount"); provided, further, with regard to each
Lender, individually, such Lender's outstanding Liquidity Loans
shall not exceed such Lender's Liquidity Loan Commitment
Percentage of the Liquidity Loan Committed Amount. Liquidity
Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be
repaid but not reborrowed in
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accordance with the provisions hereof; provided, however, that no
more than 10 Eurodollar Loans shall be outstanding hereunder at any
time. For purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans, even if
they begin on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a new
Eurodollar Loan with a single Interest Period.
(b) Liquidity Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Liquidity Loan borrowing by written notice (or
telephone notice promptly confirmed in writing) to the
Agent not later than 11:00 A.M. (Dallas, Texas time) on the
Business Day prior to the date of the requested borrowing
in the case of Base Rate Loans, and on the third Business
Day prior to the date of the requested borrowing in the
case of Eurodollar Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Liquidity
Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate
principal amount to be borrowed and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the
Borrower shall fail to specify in any such Notice of
Borrowing (I) an applicable Interest Period in the case of
a Eurodollar Loan, then such notice shall be deemed to be a
request for an Interest Period of one month or (II) the
type of Liquidity Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The
Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this
Section 2.7(b), the contents thereof and each such Lender's
share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base
Rate Loan that is a Liquidity Loan shall be in a minimum
aggregate principal amount of $1,000,000 and integral
multiples of $100,000 in excess thereof (or the remaining
amount of the Liquidity Loan Committed Amount, if less).
(iii) Advances. Each Lender will make its Liquidity
Loan Commitment Percentage of each Liquidity Loan borrowing
available to the Agent for the account of the Borrower as
specified in Section 3.15(b), or in such other manner as
the Agent may specify in writing, by 1:00 P.M. (Dallas,
Texas time) on the date specified in the applicable Notice
of Borrowing in Dollars and in funds immediately available
to the Agent. Such borrowing will then be made available
to the Borrower by the Agent by crediting the account of
the Borrower on the books of such office with
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the aggregate of the amounts made available to the Agent by
the Lenders in like funds as received by the Agent.
(c) Repayment. The principal amount of all Liquidity
Loans shall be due and payable in full on the Maturity Date.
(d) Interest. Subject to the provisions of Section 3.1,
Liquidity Loans shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as
Liquidity Loans shall be comprised of Base Rate Loans, the
Base Rate plus the Applicable Percentage; or
(ii) Eurodollar Loans. During such periods as
Liquidity Loans shall be comprised of Eurodollar Loans, the
Eurodollar Rate plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may
be specified herein).
(e) Liquidity Notes. The Liquidity Loans made by each
Lender shall be evidenced by a duly executed promissory note of
the Borrower to each Lender in the form of Schedule 2.7(e).
(f) Liquidity Loan Extension Period. So long as no
Default or Event of Default then exists or would result from any
extension provided for herein, upon (i) prior written notice to
the Agent not less than 10 Business Days before the then
applicable Maturity Date of the Liquidity Loans, which notice
shall indicate the amount of the Liquidity Loan Commitments the
Borrower elects to maintain past the current Maturity Date (the
"Liquidity Continuation Amount") and shall contain a
certification by the Borrower that no Default or Event of Default
has occurred or would result from any extension provided for
herein, and (ii) payment to the Agent for the account of each
Lender the Liquidity Loan Continuation Fee on or before the then
applicable Maturity Date of the Liquidity Loans, the Borrower may
extend the Maturity Date of the Liquidity Loans for an additional
fiscal quarter to the last day of the next succeeding fiscal
quarter of the Borrower, but in any event not later than
September 5, 2002 ("Liquidity Loan Extension Period"). Upon
election by the Borrower of a Liquidity Loan Extension Period,
the amount equal to the outstanding principal amount of the
Liquidity Loans in excess of the Liquidity Continuation Amount
shall be immediately due and payable.
5. Amendment to Section 3.3(b)(iii). Section 3.3(b)(iii) of the
Existing Credit Agreement is hereby amended in its entirety to read as
follows:
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(iii) Immediately upon the occurrence of any Asset Disposition
Prepayment Event, the Borrower shall prepay the Loans in an aggregate
amount equal to the Net Proceeds of the related Asset Disposition. In
addition, immediately upon receipt by the Borrower or any of its
Subsidiaries of any United States federal and state income tax refunds,
the Borrower shall prepay the Loans in an aggregate amount equal to
100% of such income tax refunds (such prepayment to be applied as set
forth in clause (vii) below).
6. Amendment to Section 3.3(b)(vii). Section 3.3(b)(vii) of the
Existing Credit Agreement is hereby amended in its entirety to read as
follows:
(vii) All prepayments made pursuant to this Section 3.3(b) shall
(i) be subject to Section 3.12, (ii) in the case of prepayments made
pursuant to Section 3.3(b)(iii), (iv), (v) or (vi), be applied first to
the Liquidity Loans (with a corresponding reduction in the Liquidity
Loan Committed Amount), second pro rata to the Tranche A Term Loan and
the Tranche B Term Loan (ratably according to the remaining principal
amounts of the Tranche A Term Loan and the Tranche B Term Loan
outstanding at the time of such prepayment, and to installments in
inverse order of maturity) and then to the Revolving Loans (with a
corresponding reduction in the Revolving Committed Amount), (iii)
subject to the terms of clause (ii) above, be applied first to the Base
Rate Loans, if any, and then to the Eurodollar Loans in inverse order
beginning with the latest Interest Period maturity and (iv) be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
7. Amendment to Section 3.4(b). Section 3.4(b) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(b) Intentionally deleted.
8. Amendment to Section 3.5. New subsections (c), (d) and (e) are
added to Section 3.5 of the Existing Credit Agreement to read as follows:
(c) Liquidity Loan Continuation Fee. In consideration of the
election by Borrower of a Liquidity Loan Extension Period hereunder,
the Borrower agrees to pay to the Agent for the account of each Lender
a fee (the "Liquidity Loan Continuation Fee") equal to 0.5% times the
Liquidity Continuation Amount, which fee shall be earned on the day of
the Borrower's election of a Liquidity Loan Extension Period, and shall
be due and payable beginning September 30, 1999 and thereafter, each
time the election is exercised, on the last day of the then current
Liquidity Loan Extension Period. The Liquidity Loan Continuation Fee
shall be allocated pro rata among the Lenders in accordance with their
respective Liquidity Loan Commitment Percentages determined as of the
day of the Borrower's election of a Liquidity Loan Extension Period.
(d) Amendment Fee. In consideration of the agreement of the
Lenders hereunder, the Borrower agrees to pay to the Agent for the
account of each Lender a fee (the "Amendment Fee") in an amount equal
to $1,220,000, which shall be earned as of
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Amendment No. 7 Effective Date but shall be due and payable upon the
earlier of (x) the acceleration of the Borrower's Obligations hereunder or
(y) upon the payment in full of the Borrower's Obligations and
cancellation of all Commitments. The Amendment Fee shall be allocated pro
rata among the Lenders in accordance with their respective Revolving
Commitment Percentages, Liquidity Loan Commitment Percentages, Tranche A
Term Loan Commitment Percentages and Tranche B Term Loan Commitment
Percentages as of the Amendment No. 7 Effective Date.
(e) Continuation Fee. In consideration of the Commitments of
the Lenders hereunder, the Borrower agrees to pay to the Agent for the
account of each Lender a fee (the "Continuation Fee"), which shall be
earned, due and payable on the last day of each fiscal quarter of the
Borrower if the Borrower's Obligations have not been repaid in full and
cancellation of all Commitments has not occurred during such fiscal
quarter, beginning on the last day of the fourth fiscal quarter in the
year 1999. The Continuation Fee shall be 0.5% times the sum of (1)
Revolving Commitments on the last day of such fiscal quarter, plus (2)
the aggregate outstanding principal amount of the Tranche A Term Loan
on the last day of such fiscal quarter, plus (3) the outstanding
principal amount of the Tranche B Term Loan on the last day of such
fiscal quarter. The Continuation Fee shall be allocated pro rata among
the Lenders in accordance with Revolving Loans, Tranche A Term Loans,
and Tranche B Term Loans outstanding as of the last day of such fiscal
quarter.
9. Amendment to Section 3.13(a). Section 3.13(a) of the Existing
Credit Agreement is amended in its entirety to read as follows:
(a) Loans. Each Loan (other than Swingline Loans), each
payment or prepayment of principal of any Loan (other than Swingline
Loans) or reimbursement obligations arising from drawings under Letters
of Credit, each payment of interest on the Loans (other than Swingline
Loans) or reimbursement obligations arising from drawings under Letters
of Credit, each payment of Unused Fees, each payment of the Standby
Letter of Credit Fee, each payment of the Trade Letter of Credit Fee,
each payment of the Liquidity Loan Continuation Fee, each payment of
the Amendment Fee, each payment of the Continuation Fee, each reduction
of the Revolving Committed Amount, and each conversion or extension of
any Loan (other than Swingline Loans), shall be allocated pro rata
among the Lenders in accordance with their respective Revolving
Commitment Percentages, Liquidity Loan Commitment Percentages, Tranche
A Term Loan Commitment Percentages or Tranche B Term Loan Commitment
Percentages, as applicable.
10. Amendment to Section 3.15(c). Section 3.15(c) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(c) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default, all amounts collected or received by the Agent or any
Lender on account of the Borrower's Obligations or any other amounts
outstanding under
10
<PAGE> 11
any of the Credit Documents or in respect of the Collateral shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys'
fees) of the Agent in connection with enforcing the rights of the
Lenders under the Credit Documents and any protective advances
made by the Agent with respect to the Collateral under or
pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Agent or the
Issuing Lender;
THIRD, to the payment of all reasonable out-of pocket
costs and expenses, (including without limitation, reasonable
attorneys' fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise with
respect to the Borrower's Obligations owing to such Lender;
FOURTH, to the payment of the aggregate outstanding
principal amount of the Liquidity Loans and all accrued and
unpaid interest thereon;
FIFTH, to the payment of all of the then remaining
Borrower's Obligations consisting of accrued fees and interest;
SIXTH, to the payment of the outstanding principal amount
of the then remaining Borrower's Obligations (including the
payment or cash collateralization of the outstanding LOC
Obligations);
SEVENTH, to all other Borrower's Obligations and other
obligations which shall have become due and payable under the
Credit Documents or otherwise and not repaid pursuant to clauses
"FIRST" through "SIXTH" above; and
EIGHTH, to the payment of the surplus, if any, to whoever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH",
"SIXTH", and "SEVENTH" above; and (iii) to the extent that any amounts
available for distribution pursuant to clause "SIXTH" above are
attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Agent in a cash collateral
account and applied (A) first, to reimburse the Issuing Lender from
time to time for any
11
<PAGE> 12
drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "SIXTH" and "SEVENTH" above in the manner provided in
this Section 3.15(c).
11. Amendment to Section 5.2(a)(A). Section 5.2(a)(A) of the
Existing Credit Agreement is hereby amended in its entirety to read as
follows:
(A) in the case of any Revolving Loan, the Tranche A Term Loan, the
Tranche B Term Loan, or any Liquidity Loan, an appropriate Notice of
Borrowing or Notice of Extension/Conversion,
12. Amendment to Section 5.2(f). Section 5.2(f) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(f) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (A) the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Swingline Loans plus LOC Obligations
outstanding shall not exceed the lesser of (i) the Revolving Committed
Amount and (2) the Borrowing Base, (B) the LOC Obligations shall not
exceed the LOC Committed Amount, and (C) the sum of aggregate principal
amount of outstanding Liquidity Loans shall not exceed the Liquidity
Loan Committed Amount.
13. Amendment to Section 7.1(e). Section 7.1(e) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(e) Borrowing Base/Original Borrowing Base Reports. (i) Within
15 days after the end of each fiscal month, a Borrowing Base Report and
an Original Borrowing Base Report, each as of the end of the
immediately preceding fiscal month and (ii) as soon as available after
the request of the Required Lenders, a Borrowing Base Report as of the
date of such request. Each Borrowing Base Report and the Original
Borrowing Base Report shall be substantially in the form of Schedule
7.1(e) and certified by the chief financial officer or treasurer of the
Borrower to be true and correct as of the date thereof.
14. Amendment to Section 7.11. Section 7.11 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
12
<PAGE> 13
7.11 Financial Covenants.
(a) Consolidated Tangible Net Worth. Consolidated Tangible Net
Worth at all times beginning on the last day of the third fiscal
quarter in the year 2000 and the last day of each fiscal quarter
thereafter shall be no less than the sum of $12,500,000 increased by an
amount equal to (A) 50% of the Consolidated Net Income (without
deduction for any losses) for each fiscal quarter commencing with the
fourth fiscal quarter for the fiscal year 1997 through and including
the fiscal quarter then ended, plus (B) 100% of the proceeds received
from all Equity Transactions occurring after the Closing Date.
(b) Consolidated Funded Debt Coverage Ratio. Consolidated
Funded Debt Coverage Ratio at each Calculation Date beginning on the
last day of the third fiscal quarter in the year 2000 and as of the
last day of each fiscal quarter thereafter shall be no greater than
3.00 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. Consolidated
Fixed Charge Coverage Ratio at each Calculation Date beginning on the
first day of the third fiscal quarter in the year 2000 and thereafter
shall be no less than 1.75 to 1.00.
(d) Consolidated Debt to Capitalization Ratio. Consolidated
Debt to Capitalization at each Calculation Date beginning on the first
day of the third fiscal quarter in the year 2000 and thereafter shall
be no greater than 0.60 to 1.00.
(e) Consolidated Capital Expenditures. Consolidated Capital
Expenditures for the four fiscal quarter periods ending at each
Calculation Date beginning on the last day of the third fiscal quarter
in the year 2000 and thereafter shall not exceed $17,000,000.
(f) Consolidated Capital Expenditures, PP&E and Spares Capital
Expenditures and C1/Vantive Capital Expenditures. Consolidated Capital
Expenditures, PP&E and Spares Capital Expenditures and C1/Vantive
Capital Expenditures for each of the following periods shall not exceed
the following amounts:
<TABLE>
<CAPTION>
==========================================================================================
CONSOLIDATED PP&E AND SPARES C1/VANTIVE CUMULATIVE
CAPITAL CAPITAL CAPITAL ADDITIONAL
PERIOD EXPENDITURES EXPENDITURES EXPENDITURES AMOUNT
<S> <C> <C> <C> <C>
Beginning on the first $6,334,000 $3,184,000 plus $2,700,000 $450,000
day of the fiscal year Additional PP&E plus
1999 through the end and Spares Additional
of the fiscal month Amount C1/Vantive
March 1999 (hereinafter Amount
defined) (hereinafter
defined)
Beginning on the first $11,436,000 $5,486,000 plus $5,000,000 $950,000
day of the fiscal year Additional PP&E plus
1999 through the end and Spares Additional
of the fiscal month Amount C1/Vantive
June 1999 Amount
</TABLE>
13
<PAGE> 14
<TABLE>
<S> <C> <C> <C> <C>
Beginning on the first $14,860,000 $8,385,000 plus $5,000,000 $1,475,000
day of the fiscal year Additional PP&E plus
1999 through the end and Spares Additional
of the fiscal month Amount C1/Vantive
September 1999 Amount
Beginning on the first $19,672,000 $12,672,000 $5,000,000 $2,000,000
day of the fiscal year plus Additional plus
1999 through the end PP&E and Spares Additional
of the fiscal month Amount C1/Vantive
December 1999 Amount
Beginning on the first $4,237,000 N/A $0 $0
day of the fiscal year
2000 through the end
of the fiscal month
March 2000
--------------------------------------------------------------------------------------------
Beginning on the first $8,524,000 N/A $0 $0
day of the fiscal year
2000 through the end
of the fiscal month
June 2000
==========================================================================================
</TABLE>
As used herein, "Additional PP&E and Spares Amount" means, during
any period, the additional amount of PP&E and Spares Capital
Expenditures made by the Borrower and its Subsidiaries during such
period in excess of the specified Dollar Amount listed for such
period. As used herein, "Additional C1/Vantive Amount" means, during
any period, the additional amount of C1/Vantive Capital Expenditures
made by the Borrower and its Subsidiaries during such period in excess
of the specified Dollar Amount listed for such period. Notwithstanding
anything contained herein to the contrary, for any specified period,
the sum of the Additional PP&E and Spares Amount and the Additional
C1/Vantive Amount shall not exceed the Cumulative Additional Amount
(defined herein as the amount specified above).
(g) Consolidated EBITDA
(1) Consolidated EBITDA for the period beginning on the
first day of the fiscal year 1999 through the end of the
following fiscal months shall not be less than the following
amounts:
<TABLE>
<CAPTION>
==================================================================
FISCAL MONTH MINIMUM CONSOLIDATED EBITDA
------------------------------------------------------------------
<S> <C>
March 1999 $ 3,656,000
------------------------------------------------------------------
April 1999 $ 4,839,000
------------------------------------------------------------------
May 1999 $ 6,313,000
------------------------------------------------------------------
June 1999 $11,032,000
------------------------------------------------------------------
July 1999 $12,756,000
------------------------------------------------------------------
</TABLE>
14
<PAGE> 15
<TABLE>
<S> <C>
------------------------------------------------------------------
August 1999 $14,008,000
------------------------------------------------------------------
September 1999 $18,638,000
------------------------------------------------------------------
October 1999 $20,806,000
------------------------------------------------------------------
November 1999 $22,987,000
------------------------------------------------------------------
December 1999 $28,311,000
==================================================================
</TABLE>
(2) The Consolidated EBITDA as of the end of the
following fiscal months for the prior twelve month period then
ended shall not be less than the following amounts:
<TABLE>
<CAPTION>
==================================================================
FISCAL MONTH MINIMUM CONSOLIDATED EBITDA
<S> <C>
- -------------------------------------------------------------------
January 2000 $32,330,000
- -------------------------------------------------------------------
February 2000 $33,924,000
- -------------------------------------------------------------------
March 2000 $35,411,000
- -------------------------------------------------------------------
April 2000 $36,927,000
- -------------------------------------------------------------------
May 2000 $38,014,000
- -------------------------------------------------------------------
June 2000 $38,283,000
==================================================================
</TABLE>
(h) Consolidated Net Worth. The Consolidated Net Worth
at all times as of the last day of the following fiscal months
shall be not less than the following amounts:
<TABLE>
<CAPTION>
=====================================================================
FISCAL MONTH MINIMUM CONSOLIDATED NET WORTH
<S> <C>
- ---------------------------------------------------------------------
March 1999 $25,650,000
- ---------------------------------------------------------------------
April 1999 $24,345,000
- ---------------------------------------------------------------------
May 1999 $23,590,000
- ---------------------------------------------------------------------
June 1999 $25,106,000
- ---------------------------------------------------------------------
July 1999 $24,183,000
- ---------------------------------------------------------------------
August 1999 $23,276,000
- ---------------------------------------------------------------------
September 1999 $24,732,000
- ---------------------------------------------------------------------
October 1999 $24,147,000
- ---------------------------------------------------------------------
November 1999 $23,923,000
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
</TABLE>
15
<PAGE> 16
<TABLE>
<S> <C>
- -------------------------------------------------------------------
December 1999 $25,900,000
- -------------------------------------------------------------------
January 2000 $27,149,000
- -------------------------------------------------------------------
February 2000 $27,746,000
- -------------------------------------------------------------------
March 2000 $29,778,000
- -------------------------------------------------------------------
April 2000 $30,010,000
- -------------------------------------------------------------------
May 2000 $30,607,000
- -------------------------------------------------------------------
June 2000 $32,639,000
==================================================================
</TABLE>
15 Amendment to Section 7. Section 7.16 titled "Borrower Deposit
Accounts" is renumbered to read "Section 7.17". Section 7.17 titled
"Meetings Regarding Flash Reports; Review Plan" is renumbered to read
"Section 7.18". Section 7.18 titled "Collateral Review" is renumbered to
read "Section 7.19".
16 Addition to Section 7. A new Section 7.20 is added to Section 7
to read as follows:
7.20 Monthly Conference Calls and Quarterly Bank Meetings. The
Borrower and its consultants shall participate (a) within 20 days after
the end of each fiscal month, in a conference call with the Lenders and
(b) within 46 days after the close of each fiscal quarter of the
Borrower, in bank meetings with the Lenders and the Borrower's
accountants in each fiscal quarter of the Borrower to discuss the
current business situation of the Borrower and its Subsidiaries and any
other matters requested by any Lender.
17 Amendment to Section 8.1(h). Section 8.1(h) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(h) other Indebtedness of any Foreign Subsidiary of the
Borrower not exceeding in aggregate principal amount at any time
outstanding the Foreign Currency Equivalent of $8,000,000 for all such
Persons taken together.
18 Amendment to Section 8.4(a). Section 8.4(a) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(a) dissolve, liquidate or wind up their affairs, or enter into
any transaction of merger or consolidation; provided, however, that, so
long as no Default or Event of Default would be directly or indirectly
caused as a result thereof, (i) the Borrower may merge or consolidate
with any of its Subsidiaries provided that the Borrower is the
surviving corporation; and (ii) any Credit Party (other than the
Borrower) may merge or consolidate with any other Credit Party (other
than the Borrower);
16
<PAGE> 17
19 Amendment to Section 8.4(b). Section 8.4(b) of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(b) sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale leaseback
transaction) other than (i) the sale of inventory in the ordinary
course of business for fair consideration, (ii) the sale or disposition
of machinery and equipment no longer used or useful in the conduct of
such Person's business, (iii) the sale or other disposition of the TIWP
Assets on terms and conditions reasonably satisfactory to the Agent,
(iv) other Asset Dispositions provided that the aggregate amount of the
Net Proceeds of all such Asset Dispositions during any fiscal year of
the Borrower and its Subsidiaries does not exceed $100,000 and (v)
subject to the terms of Section 8.8, any other Asset Disposition,
provided that, no later than 14 days prior to such Asset Disposition,
the Agent and the Lenders shall have received a certificate of the
chief financial officer or treasurer of the Borrower (A) providing
facts or computations in reasonable detail demonstrating that (1) the
aggregate cumulative book value of assets disposed of in all the Asset
Dispositions occurring on or after the Closing Date does not exceed 20%
of Consolidated Total Assets as of the most recent Calculation Date
with respect to which the Agent and the Lenders shall have received the
Required Financial Information, (2) the aggregate cumulative book value
of assets disposed of in all the Asset Dispositions occurring during
the then current fiscal year of the Borrower does not exceed 10% of
Consolidated Total Assets as of the most recent Calculation Date with
respect to which the Agent and the Lenders shall have received the
Required Financial Information and (3) after giving effect on a Pro
Forma Basis to such Asset Disposition, no Default or Event of Default
would exist hereunder and (B) specifying the anticipated or actual date
of such Asset Disposition, briefly describing the assets sold or
otherwise disposed of or to be sold or otherwise disposed of and
setting forth the net book value of such assets and the aggregate
consideration and Net Proceeds to be received for such assets in
connection with such Asset Disposition, and thereafter the Borrower
shall prepay the Loans in connection with such Asset Disposition to the
extent required by Section 3.3(b)(iii); or
20 Amendment to Section 8.6. Section 8.6 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
8.6 RESTRICTED PAYMENTS.
The Borrower will not, nor will it permit any of its Subsidiaries
to, directly or indirectly declare, order, make or set apart any sum
for or pay any Restricted Payment, except (i) to make dividends payable
solely in the same class of capital stock of such Person, (ii) to make
dividends payable to any Credit Party, (iii) as permitted by Section
8.7, and (iv) provided that no Default or Event of Default has occurred
and is continuing at such time or would be directly or indirectly
caused as a result thereof, to make interest payments on Intercompany
Indebtedness.
17
<PAGE> 18
21 Amendment to Section 8.14. Section 8.14 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
8.14 OPERATING LEASE OBLIGATIONS.
The Borrower will not, nor will it permit any of its Subsidiaries
to, enter into, assume or permit to exist any obligations for the
payment of rental under Operating Leases which in the aggregate for all
such Persons would exceed $10,000,000 in any fiscal year.
22 Addition to Section 10. A new Section 10.10 is added to Section
10 of the Existing Credit Agreement to read as follows:
10.10 Treatment of Liquidity Facility in Bankruptcy. So long as
any amounts remain outstanding in respect of the Liquidity Facility, no
Lender shall offer or make available to any Credit Party, or
participate in, any loan, credit facility, financial accommodation or
other Indebtedness proposed to be provided as a debtor-in-possession
financing pursuant to 11 U.S.C. Section 364 in connection with a
proceeding under the Bankruptcy Code (a "DIP Financing"), unless the
Liquidity Facility shall (unless not approved by the Bankruptcy Court)
be added to, and included as part of, such DIP Financing (on a ratable
basis as if such loans were a single loan, pari passu in all respects
with all other extensions of credit under such DIP Financing).
23 Termination of the Foreign Currency Commitment. The Borrower
agrees and acknowledges that the Foreign Currency Commitments have been
terminated.
24 Amendment to Schedule 2.1(a). All references in the Existing
Credit Agreement to "Schedule 2.1(a)" are hereby deemed to refer to the
"Schedule 2.1(a)" attached hereto as Annex A.
25 Addition of Schedule 2.7(e). All references in the Amended
Credit Agreement to "Schedule 2.7(e)" are hereby deemed to refer to the
"Schedule 2.7(e)" attached hereto as Exhibit A.
PART III
CONDITIONS TO EFFECTIVENESS
1 Amendment No. 7 Effective Date. This Amendment shall be and
become effective as of the date hereof (the "Amendment No. 7 Effective Date")
when all of the conditions set forth in this Part III shall have been
satisfied, and thereafter this Amendment shall be known, and may be referred
to, as "Amendment No. 7."
2 Execution of Counterparts of Amendment. The Agent shall have
received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the
18
<PAGE> 19
Agent) of this Amendment, which collectively shall have been duly executed on
behalf of each of the Borrower, the Guarantors and the Lenders.
3 Execution of Liquidity Notes. The Agent shall have received the
Liquidity Notes in the form attached hereto as Exhibit A, each duly executed
on behalf of the Borrower and payable to the order of each Lender.
4 Officer's Certificate. The Agent shall have received a
certificate executed by the chief financial officer of the Borrower as of the
Amendment No. 7 Effective Date stating that, immediately after giving effect
to this Amendment and the transactions contemplated hereby, (i) each of the
Credit Parties is Solvent, (ii) no Default or Event of Default exists and
(iii) the representations and warranties set forth in the Existing Credit
Agreement are true and correct in all material respects.
5 Execution of Warrant Agreement. The Agent shall have received a
Warrant Agreement for the purchase of warrants for 1,000,000 shares of common
stock of the Borrower for the benefit of the Lenders pro rata, in the form
attached hereto as Exhibit B, the warrants issued pursuant thereto, and all
other documents, agreements and instruments related thereto, duly executed on
behalf of the Borrower.
6 Auditors' Opinion. The Agent shall have received an opinion of
PricewaterhouseCoopers, accountants for the Credit Parties, with respect to
the fiscal year 1998 audited consolidated financial statements of the
Borrower, which shall not be limited as to the scope of the audit or
qualified as to the status of the Borrower and its Subsidiaries as a going
concern, in form and substance reasonably satisfactory to the Agent.
7 Legal Opinion. The Agent shall have received a legal opinion of
McGuire, Woods, Battle & Boothe, counsel for the Credit Parties in form and
substance reasonably satisfactory to the Agent.
8 Material Adverse Change. Except as otherwise previously
disclosed in writing to the Lenders, no material adverse change shall have
occurred since December 29, 1996 in the condition (financial or otherwise),
business or management of the Borrower or of the Borrower and its
Subsidiaries taken as a whole.
9 Fees and Expenses. All out-of-pocket fees and expenses of Agent
or any Lender in connection with the Credit Documents, including this
Amendment, including legal and other professional fees and expenses incurred
on or prior to the date of this Amendment, including, without limitation, the
fees and expenses of Winstead Sechrest & Minick PC, shall have been paid.
10 Other Items. The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the Agent.
PART IV
19
<PAGE> 20
ADDITIONAL EVENTS OF DEFAULT
The Borrower will deliver, or cause to be delivered, each of the
following items within the time period indicated and if any of such items is
not delivered to the Agent on or before its due date, such failure will
constitute an Event of Default:
(a) Canadian Note. Within 45 days after the Amendment No. 7
Effective Date, (i) an original promissory note in the original
principal amount of not less than $14,000,000, executed by Genicom
Canada Inc. and payable to the order of the Borrower (the "Canadian
Note"); provided however, (1) the Canadian Note shall contain such
terms and conditions satisfactory to the Agent in its sole discretion,
(2) the Canadian Note shall be endorsed in favor of the Agent for the
benefit of the Lenders, and the Borrower shall take any other action as
is necessary, in the Agent's sole discretion, to perfect the Agent's
security interest in the Canadian Note, and (3) the Canadian Note shall
be secured by a first priority perfected security interest in all
personal property of Genicom Canada Inc., evidence of which shall be in
form and substance satisfactory to the Agent in its sole discretion,
and (ii) all other documents, instruments and agreements related
thereto, each in form and substance satisfactory to the Agent in its
sole discretion.
(b) Netherlands Security Agreement. Within 90 days after the
Amendment No. 7 Effective Date, a Security Agreement duly executed by
each Domestic Subsidiary of the Borrower which owns any personal
property in the Netherlands (the "New Company") and all other
documents, agreements and instruments as are necessary, in the Agent's
sole discretion, to perfect the Agent's security interest in all of the
personal property of the New Company.
(c) Pledge Agreement; Pledged Shares. Within 60 days after the
Amendment No. 7 Effective Date, (i) a Pledge Agreement duly executed by
Genicom International Holdings Corporation, ("GIHC") pursuant to which
GIHC shall pledge 65% of all of the issued and outstanding shares of
capital stock of the Foreign Subsidiaries of GIHC (the "GIHC Pledged
Shares"), and (ii) original stock certificates of the GIHC Pledged
Shares, along with stock powers executed in blank.
(d) UCC-1 Financing Statements Within 90 days after the
Amendment No. 7 Effective Date, (i) duly executed UCC financing
statements for each appropriate jurisdiction as is necessary, in the
Agent's sole discretion, to perfect the Agent's security interest in
the Collateral, and (ii) applicable filings or other documents
evidencing the security interest of the Agent, for the benefit of
itself and the Lenders, in the personal property of the New Company.
(e) Joinder Agreement. A Joinder Agreement duly executed by
the New Company within 90 days after the Amendment No. 7 Effective Date.
(f) Legal Opinion. (i) Within 90 days after the Amendment No.
7 Effective Date, a legal opinion of McGuire, Woods, Battle & Boothe,
counsel for the Credit Parties
20
<PAGE> 21
with respect to the New Company, in form and substance reasonably
satisfactory to the Agent, (ii) within 45 days after the Amendment No. 7
Effective Date, a legal opinion of Canadian legal counsel to Borrower,
addressed to the Borrower and the Agent with respect to Genicom Canada
Inc. and the security interest granted to the Borrower, in form and
substance reasonably satisfactory to the Agent, and (iii) within 90 days
after the Amendment No. 7 Effective Date, a legal opinion of the
Netherlands legal counsel to Borrower with respect to the New Company and
the security interest granted to the Agent for the benefit of the Lenders,
such opinion to be addressed to the Agents and the Lenders, in form and
substance reasonably satisfactory to the Agent.
PART V
MISCELLANEOUS
1 Representations and Warranties. Borrower hereby represents and
warrants to the Agent and the Lenders that, after giving effect to this
Amendment, (a) no Default or Event of Default exists under the Amended Credit
Agreement or any of the other Credit Documents which has not been waived and
(b) the representations and warranties set forth in Section 6 of the Existing
Credit Agreement are, subject to the limitations set forth therein, true and
correct in all material respects as of the date hereof (except for those
which expressly relate to an earlier date).
2 Releases. In consideration of Lenders' agreements herein and
certain other good and valuable consideration, the Borrower and each
Guarantor hereby expressly acknowledge and agree that none of them has any
setoffs, counterclaims, adjustments, recoupments, defenses, claims or actions
of any character, whether contingent, non-contingent, liquidated,
unliquidated, fixed, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured, known or unknown, against any Lender or the
Agent or any grounds or cause for reduction, modification or subordination of
the obligations of Borrower or any Guarantor under the Credit Documents or
any liens or security interests of any Lender or the Agent in each case which
arose on or prior to the date hereof. To the extent Borrower or any
Guarantor may possess any such setoffs, counterclaims, adjustments,
recoupments, claims, actions, grounds or causes, each of the Borrower and
Guarantors hereby waives, and hereby releases each Lender and Agent from, any
and all of such setoffs, counterclaims, adjustments, recoupments, claims,
actions, grounds and causes, such waiver and release being with full
knowledge and understanding of the circumstances and effects of such waiver
and release and after having consulted counsel with respect thereto.
3 Cross-References. References in this Amendment to any Part are,
unless otherwise specified, to such Part of this Amendment.
4 Instrument Pursuant to Existing Credit Agreement. This Amendment
is a Credit Document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
5 References in Other Credit Documents. At such time as this
Amendment No. 7 shall become effective pursuant to the terms of Part III, all
references in the Credit Documents to
21
<PAGE> 22
the "Credit Agreement" shall be deemed to refer to the Credit Agreement as
amended by this Amendment No. 7.
6 Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Facsimile signatures shall be effective for all purposes
regardless of whether the Agent receives an originally executed copy of this
Amendment.
7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF VIRGINIA
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
8 Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
[Remainder of Page Intentionally Left Blank]
22
<PAGE> 23
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
duly executed on the date first above written.
BORROWER:
GENICOM CORPORATION
By /s/ James Gale
-----------------------------------------
Title: Senior Vice President
GUARANTORS:
GENICOM INTERNATIONAL HOLDINGS
CORPORATION
By /s/ James Gale
-----------------------------------------
Title: President
GENICOM INTERNATIONAL SALES
CORPORATION
By /s/ James Gale
-----------------------------------------
Title: President
RASTEK CORPORATION
By /s/ James Gale
-----------------------------------------
Title: President and Treasurer
ENTERPRISING SERVICE SOLUTIONS
CORPORATION
By /s/ James Gale
-----------------------------------------
Title: Vice President
<PAGE> 24
PRINTER SYSTEMS CORPORATION
By /s/ James Gale
- -----------------------------------------
Title: Vice President
THE PRINTER CONNECTION, INC.
By /s/ James Gale
- -----------------------------------------
Title: Vice President
PRINTER SYSTEMS INTERNATIONAL, LTD.
By /s/ James Gale
- -----------------------------------------
Title: Vice President
LENDERS:
NATIONSBANK, N.A. (formerly NationsBank
of Texas, N.A.), individually as a Leader
and in its capacity as Agent
By /s/ Jay T. Wampler
- -----------------------------------------
Title: Senior Vice President
<PAGE> 25
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
(as successor in interest to
CREDITANSTALT CORPORATE FINANCE, INC.)
By /s/ Andrew J. Russell
-----------------------------------------
Title: Vice President
By /s/ Jane Orndahl
-----------------------------------------
Title: Vice President
EATON VANCE INSTITUTIONAL
SENIOR LOAN FUND
By: Eaton Vance Management, as
Investment Advisor
By /s/ Scott H. Page
-----------------------------------------
Title: Vice President
CRESTAR BANK
By /s/ Jo M. Stewart
-----------------------------------------
Title: Senior Vice President
THE RIGGS NATIONAL BANK OF
WASHINGTON, D.C.
By /s/ Alfred J. Serafino
-----------------------------------------
Title: Executive Vice President
FLOATING RATE PORTFOLIO
By: Invesco Senior Secured Management,
Inc., as
attorney-in-fact
By /s/ Anne M. McCarthy
-----------------------------------------
<PAGE> 26
Title: Authorized Signatory
KZH III LLC
By /s/ Dennis Kildea
- -----------------------------------------
Title: Authorized Agent
TORONTO DOMINION (TEXAS), INC.
By /s/ Sonja R. Jordan
- -----------------------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Scott H. Page
- -----------------------------------------
Title: Vice President
CERES FINANCE LTD.
By /s/ John H. Cullihane
- -----------------------------------------
Title: Director
AERIES FINANCE LTD.
By /s/ Andrew Ian Wignall
- -----------------------------------------
Title: Director
BANK OF SCOTLAND
<PAGE> 27
By /s/ Janet Taffe
-----------------------------------------
Title: Assistant Vice President
NATIONAL CITY BANK OF KENTUCKY
By s/s Jerrol Z. Miles
-----------------------------------------
Title: Senior Vice President
<PAGE> 28
ANNEX A
SCHEDULE 2.1(a) TO AMENDED CREDIT AGREEMENT
[See Attached]
<PAGE> 29
<TABLE>
<CAPTION>
Tranche
Revolving Tranche A Term Tranche
Revolving Commitment A Term Loan B Term
NAME AND ADDRESS OF LENDERS Commitment Percentage Loan Commitment Loan
Commitment Percentage Commitment
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NationsBank, N.A.
901 Main Street, 66th Floor
Dallas, Texas 75202 $13,177,791.77 21.254502855% $841,386.00 7.478986667% $0.00
Attn: Jay T. Wampler
Facsimile No.: (214) 508-3533
- ---------------------------------------------------------------------------------------------------------------------------------
Bank Austria Creditanstalt
Corporate Finance, Inc.
Two Greenwich Plaza $10,438,775.26 16.836734290% $2,410,714.50 21.428573333% $0.00
Greenwich, Connecticut 06830
Attn: Jane Orndahl
Facsimile No.: (203) 861-6413
- ---------------------------------------------------------------------------------------------------------------------------------
Crestar Bank
1445 New York Avenue, N.W.,
3rd Floor $10,438,775.26 16.836734290% $2,410,714.50 21.428573333% $0.00
Washington, D.C. 20005
Attn: C.B. "Joe" Bohannon
Facsimile No.: (202) 879-6690
- ---------------------------------------------------------------------------------------------------------------------------------
The Riggs National Bank of
Washington, D.C.
808 17th Street N.W. $10,438,775.26 16.836734290% $2,410,714.50 21.428573333% $0.00
Washington, D.C. 20006
Attn: J. Jordan O'Neill
Facsimile No.: (202) 835-5977
- ---------------------------------------------------------------------------------------------------------------------------------
National City Bank of Kentucky
101 S. 5th Street
Louisville, Kentucky 40202 $8,752,941.23 14.117647145% $1,588,235.25 14.117646667% $0.00
Attn: Jerrol Z. Miles
Facsimile No.: (502) 581-5203
- ---------------------------------------------------------------------------------------------------------------------------------
Bank of Scotland
111 Riverside Avenue,
Suite 230 $8,752,941.23 14.117647145% $1,588,235.25 14.117646667% $0.00
Haskell Building
Jacksonville, Florida 32202
Attn: Hugh Van Seaton
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Tranche B
Term Loan Liquidity
Commitment Liquidity Loan
NAME AND ADDRESS OF LENDERS Percentage Loan Commitment
Commitment Percentage
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NationsBank, N.A.
901 Main Street, 66th Floor
Dallas, Texas 75202 0 % $1,251,712.30 12.517123010%
Attn: Jay T. Wampler
Facsimile No.: (214) 508-3533
- ----------------------------------------------------------------------------------------------
Bank Austria Creditanstalt
Corporate Finance, Inc.
Two Greenwich Plaza 0 % $1,147,275.87 11.472758712%
Greenwich, Connecticut 06830
Attn: Jane Orndahl
Facsimile No.: (203) 861-6413
- ----------------------------------------------------------------------------------------------
Crestar Bank
1445 New York Avenue, N.W.,
3rd Floor 0 % $1,147,275.87 11.472758712%
Washington, D.C. 20005
Attn: C.B. "Joe" Bohannon
Facsimile No.: (202) 879-6690
- ----------------------------------------------------------------------------------------------
The Riggs National Bank of
Washington, D.C.
808 17th Street N.W. 0 % $1,147,275.87 11.472758712%
Washington, D.C. 20006
Attn: J. Jordan O'Neill
Facsimile No.: (202) 835-5977
- ----------------------------------------------------------------------------------------------
National City Bank of Kentucky
101 S. 5th Street
Louisville, Kentucky 40202 0 % $923,319.33 9.233193284%
Attn: Jerrol Z. Miles
Facsimile No.: (502) 581-5203
- ----------------------------------------------------------------------------------------------
Bank of Scotland
111 Riverside Avenue,
Suite 230 0 % $923,319.33 9.233193284%
Haskell Building
Jacksonville, Florida 32202
Attn: Hugh Van Seaton
- ----------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
Tranche
Revolving Tranche A Term Tranche
Revolving Commitment A Term Loan B Term
NAME AND ADDRESS OF LENDERS Commitment Percentage Loan Commitment Loan
Commitment Percentage Commitment
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Facsimile No.: (904) 353-7833
- ---------------------------------------------------------------------------------------------------------------------------------
Floating Rate Portfolio
c/o INVESCO Senior Secured
Management, Inc. $0.00 0 % $0.00 0 % $4,843,750.00
1166 Avenue of the Americas
New York, New York 10036-2789
Attn: Anne McCarthy
Facsimile No.: (212) 278-9619
- ---------------------------------------------------------------------------------------------------------------------------------
Aeries Finance Ltd.
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor $0.00 0 % $0.00 0 % $4,843,750.00
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ---------------------------------------------------------------------------------------------------------------------------------
Ceres Finance Ltd.
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor $0.00 0 % $0.00 0 % $4,843,750.00
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ---------------------------------------------------------------------------------------------------------------------------------
KZH III LLC
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor $0.00 0 % $0.00 0 % $4,843,750.00
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ---------------------------------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010 $0.00 0 % $0.00 0 % $4,843,750.00
Attn: David G. Parker
Facsimile No.: (713) 652-0914
- ---------------------------------------------------------------------------------------------------------------------------------
Senior Debt Portfolio
c/o Eaton Vance Management
24 Federal Street, 6th Floor $0.00 0 % $0.00 0 % $13,078,125.00
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Tranche B
Term Loan Liquidity
Commitment Liquidity Loan
NAME AND ADDRESS OF LENDERS Percentage Loan Commitment
Commitment Percentage
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Facsimile No.: (904) 353-7833
- ----------------------------------------------------------------------------------------------
Floating Rate Portfolio
c/o INVESCO Senior Secured
Management, Inc. 12.500000000% $432,477.68 4.324776786%
1166 Avenue of the Americas
New York, New York 10036-2789
Attn: Anne McCarthy
Facsimile No.: (212) 278-9619
- ----------------------------------------------------------------------------------------------
Aeries Finance Ltd.
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor 12.500000000% $0 0%
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ----------------------------------------------------------------------------------------------
Ceres Finance Ltd.
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor 12.500000000% $0 0%
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ----------------------------------------------------------------------------------------------
KZH III LLC
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor 12.500000000% $1,297,433.04 12.974330358%
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
- ----------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010 12.500000000% $432,477.68 4.324776786%
Attn: David G. Parker
Facsimile No.: (713) 652-0914
- ----------------------------------------------------------------------------------------------
Senior Debt Portfolio
c/o Eaton Vance Management
24 Federal Street, 6th Floor 33.750000000% $1,167,689.73 11.676897321%
- ----------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 31
<TABLE>
<CAPTION>
Tranche
Revolving Tranche A Term Tranche
Revolving Commitment A Term Loan B Term
NAME AND ADDRESS OF LENDERS Commitment Percentage Loan Commitment Loan
Commitment Percentage Commitment
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594
- ---------------------------------------------------------------------------------------------------------------------------------
Eaton Vance Institutional
Senior Loan Fund
c/o Eaton Vance Management $0.00 0 % $0.00 0 % $1,453,125.00
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL $62,000,000.00 100.00% $11,250,000.00 100.00% $38,750,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Tranche B
Term Loan Liquidity
Commitment Liquidity Loan
NAME AND ADDRESS OF LENDERS Percentage Loan Commitment
Commitment Percentage
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594
- ----------------------------------------------------------------------------------------------
Eaton Vance Institutional
Senior Loan Fund
c/o Eaton Vance Management 3.750000000% $129,743.30 1.297433036%
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594
- ----------------------------------------------------------------------------------------------
TOTAL 100.00% $10,000,000.00 100.00%
- ----------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 32
EXHIBIT A
Form of Liquidity Note
[See Attached]
<PAGE> 33
EXHIBIT B
Form of Warrant Agreement
[See Attached]
<PAGE> 34
LIQUIDITY NOTE
$________________ April 2, 1999
FOR VALUE RECEIVED, GENICOM CORPORATION, a Delaware corporation (the
"Borrower"), hereby, promises to pay to the order of
_____________________________, its successors and registered assigns (the
"Lender"), at the office of NationsBank of Texas, N.A., as Agent (the
"Agent"), at 901 Main Street, Dallas, Texas 75202 (or at such other place or
places as the holder hereof may designate), at the times set forth in the
Amended and Restated Credit Agreement dated as of September 5, 1997 among the
Borrower, the Lenders and the Agent (as it has been or may be amended,
modified, extended or restated from time to time, the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set
forth in the Credit Agreement), but in no event later than the Maturity Date,
in Dollars and in immediately available funds, the principal amount of
______________________________________ DOLLARS ($____________) or , if less
than such principal amount, the aggregate unpaid principal amount of all
Liquidity Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Section 2.7(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section
3.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of the Borrower to the Lender shall become
immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable
attorneys' fees.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure
to endorse such information on such schedule or continuation thereof shall
not in any manner affect the obligation of the Borrower to make payments of
principal and interest in accordance with the terms of this Note.
This Note and the Loans evidenced may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or
on behalf of the Borrower as provided in Section 11.3(c) of the Credit
Agreement.
<PAGE> 35
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
GENICOM CORPORATION
By:
-------------------------------
Name:
Title:
2
<PAGE> 36
SCHEDULE A TO THE
LIQUIDITY NOTE
OF
--------------------------
DATED APRIL 2, 1999
<TABLE>
<S> <C> <C> <C> <C> <C>
UNPAID NAME OF
TYPE PRINCIPAL PERSON
OF INTEREST PAYMENTS BALANCE MAKING
DATE LOAN PERIOD PRINCIPAL INTEREST OF NOTE NOTATION
---- ---- -------- --------- --------- --------- ---------
</TABLE>
<PAGE> 37
WARRANT AGREEMENT
BETWEEN
GENICOM CORPORATION
AND
THE WARRANTHOLDERS
-----------------------------------------
DATED AS OF APRIL 2, 1999
<PAGE> 38
WARRANT AGREEMENT
WARRANT AGREEMENT (the "Agreement") dated as of April 2, 1999, between
Genicom Corporation, a Delaware corporation (the Company"), and each of the
Persons listed on the signature pages hereto (the "Warrantholders").
RECITALS:
The Company proposes to issue and deliver its warrant certificates (the
"Warrant Certificates") to the Warrantholders evidencing Warrants to purchase up
to an aggregate of 1,000,000 shares, subject to adjustment as provided herein,
of its Common Stock, in the percentage as to each Warrantholder set forth on
Schedule I attached hereto. Each such Warrant will entitle the registered owner
thereof to purchase one Stock Unit, subject to adjustment as provided herein.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder of the Company and the record holders of the Warrants, the Company
and each of the Warrantholders hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
Additional Shares of Common Stock: All shares of Common Stock issued by
the Company after the date of this Agreement other than Underlying Common Stock
and Common Stock issued by the Company under or pursuant to any Company Plan.
Affiliate: Of any Person, any person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent: The meaning as set forth in the Credit Agreement.
Business Day: Any day excluding Saturday, Sunday and any day on which
the principal market through or exchange on which the Common Stock is traded
is closed.
Call Option: The Company's option to purchase the Warrants as
described in Section 8 hereof.
Commitments: The meaning as set forth in the Credit Agreement.
<PAGE> 39
Common Stock: The Common Stock, par value $0.01 per share, of the Company
and any other capital stock of the Company into which such Common Stock may be
converted or reclassified or that may be issued in respect of, in exchange for,
or in substitution of, such Common Stock by reason of any stock splits, stock
dividends, distributions, mergers, consolidations or other like events.
Company: Genicom Corporation, a Delaware corporation, and its
successors and assigns.
Company Plan: Any of the following plans as currently written on the date
hereof, without any amendments thereto and without any increase in the grants of
options to acquire Common Stock: (i) Genicom Corporation Stock Option Plan as
amended and restated February 7, 1991 and further amended December 17, 1996,
(ii) the Genicom Corporation 1997 Stock Option Plan, (iii) the Genicom
Corporation 1998 Non-Employee Directors Stock Option Plan, (iv) the Genicom
Corporation 1998 Employee Ownership Participation Plan and (v) individual
options to acquire a total of 20,000 shares of Common Stock granted prior to the
date hereof to certain directors of the Company outside of such plans; provided,
however, that the Genicom 1997 Stock Option Plan may be amended to provide for
the grant of options to acquire an additional 600,000 shares of Common Stock.
Convertible Securities: Evidences of indebtedness, shares of stock or
other securities that are convertible into or exchangeable, with or without
payment of additional consideration in cash or property, for Additional Shares
of Common Stock, either immediately or upon the arrival of a specified date or
the happening of a specified event.
Credit Agreement: That certain Amended and Restated Credit Agreement dated
as of September 5, 1997, by and among the Company, the Guarantors, the Lenders
and NationsBank, N.A., successor by merger to NationsBank of Texas, N.A., as
Agent, as amended by (i) that First Amendment to Amended and Restated Credit
Agreement dated as of October 31, 1997, (ii) that Second Amendment to Amended
and Restated Credit Agreement dated as of March 12, 1998; (iii) that letter
agreement dated May 5, 1998, (iv) that Fourth Amendment to Amended and Restated
Credit Agreement and Waiver dated as of July 2, 1998, (v) that Fifth Amendment
to Amended and Restated Credit Agreement dated as of October 30, 1998, (vi) that
Sixth Amendment to Amended and Restated Credit Agreement dated as of February
11, 1999, and (vii) that Seventh Amendment to Amended and Restated Credit
Agreement of even date herewith, as the same may be amended, restated or
modified from time to time.
Credit Documents: The meaning as set forth in the Credit Agreement.
Current Market Price: Per share of Common Stock, on any date herein
specified, shall be deemed to be (i) the average of the daily market prices
(determined as set forth in the next sentence), if any, for 20 consecutive
Business Days commencing 35 Business Days before such date; or (ii) in the event
that there is not a public market in the Common Stock and a Majority of Holders
shall, at their option, request such appraisal, the appraised value thereof as
determined by
-2-
<PAGE> 40
an investment banking firm selected by the Company and acceptable to such
Holders. The market price for each such Business Day shall be (a) the average of
the last sale prices on such day on all domestic stock exchanges on which the
Common Stock may then be listed; or (b) if no sales take place on such day on
any such exchange, the average of the closing bid and asked prices on such as
officially quoted on such exchanges; or (c) if the Common Stock is not then
listed or admitted to trading on any domestic stock exchange, the average of the
reported bid and asked prices on such day as reported by the Nasdaq National
Market or if not traded on the Nasdaq National Market, in the over-the-counter
market, as furnished by the National Quotation Bureau, Inc. or, if such firm at
the time is not engaged in the business of reporting such prices, as furnished
by any similar firm then engaged in such business and selected by the Company
or, if there is no such firm, as furnished by any member of the National
Association of Securities Dealers, Inc. selected by the Company.
Current Warrant Price: Per share of Common Stock, at any date herein
specified, the amount equal to the quotient resulting from dividing the
applicable purchase price per Stock Unit provided for in this Agreement, as in
effect on such date, by the number of shares (including any fractional share) of
Common Stock comprising a Stock Unit on such date, but in no event shall the
Current Warrant Price be less than the par value of the Common Stock.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expiration Date: The earlier of (a) March 31, 2010 or (b) ten (10)
years after the Obligations are paid in full and the Commitments terminated.
Guarantors: The meaning as set forth in the Credit Agreement.
Holders: From time to time, the registered holders of the Warrants.
Initial Holders: The Holders of the Warrants as of the date hereof.
Issuing Lender: The meaning as set forth in the Credit Agreement.
Lenders: The meaning as set forth in the Credit Agreement.
Liquidity Facility: $10,000,000 Liquidity Loans from Lenders to the
Company maturing on the Maturity Date.
Liquidity Loans: The meaning as set forth in the Credit Agreement.
Majority of Holders: Holders of Warrants representing at least 50.1%
in the aggregate of the Underlying Common Stock.
Maturity Date: The meaning as set forth in the Credit Agreement.
-3-
<PAGE> 41
New Common Stock: Shares of Common Stock newly issued by the Company.
Notes: The meaning as set forth in the Credit Agreement.
Obligations: (i) All of the obligations of the Company to the Lenders
(including the Issuing Lender and the Swingline Lender) and the Agent, whenever
arising, under the Credit Agreement, the Notes or any of the other Credit
Documents and (ii) all liabilities and obligations, whenever arising, owing from
the Company to any Lender or any affiliate of a Lender arising under interest
rate protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements.
Other Securities: Any stock and other securities of the Company (other
than the Common Stock) or of any other Person that the Holder of a Warrant shall
become entitled to receive upon exercise of a Warrant.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
SEC: The U.S. Securities and Exchange Commission, or any successor
agency.
Seventh Amendment Effective Date: The meaning as set forth in the
Credit Agreement for the following term: "Amendment No. 7 Effective Date".
Stockholders: The holders of all outstanding shares of Common Stock.
Stock Unit: Shall mean with respect to the Warrants, one share of Common
Stock, as such stock was constituted on the date hereof, and thereafter shall
mean such number of shares (including any fractional share) of such stock as
shall result from the adjustments specified in Section 5 hereof.
Swingline Lender: The meaning as set forth in the Credit Agreement.
Underlying Common Stock: The shares of Common Stock issuable or
issued upon the exercise of the Warrants.
Vesting Date: The earlier of (a) March 31, 2000 or (b) ten (10) days
after the Obligations are paid in full and the Commitments terminated.
Warrant Certificates: The meaning set forth in the preamble to this
Agreement.
-4-
<PAGE> 42
Warrants: Those certain Warrants to purchase initially up to an aggregate
of 1,000,000 shares of Common Stock, subject to adjustment, substantially in the
form of Exhibit A attached hereto.
2. ORIGINAL ISSUE OF WARRANTS.
2.1 Form of Warrant Certificates. The Warrant Certificates representing
Warrants shall be in registered form only and substantially in the forms
attached hereto as Exhibit A, shall be dated the date on which signed by the
Company and may have such legends and endorsements typed, stamped, printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation pursuant thereto or with any
rule or regulation of any securities exchange on or market through which the
Warrants may be listed or traded, or to conform to usage, including, without
limitation, the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED TO THE
REGISTERED OWNER IN RELIANCE UPON WRITTEN REPRESENTATION THAT THESE
SECURITIES HAVE BEEN TAKEN FOR INVESTMENT. THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES OR BLUE SKY LAWS AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY SHALL HAVE BEEN
RECEIVED BY THE COMPANY TO THE EFFECT THAT SUCH SALE, TRANSFER OR
ASSIGNMENT WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, AND OTHER APPLICABLE
STATE SECURITIES LAWS.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, and which will be substantially
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Company, without charge
to the Holder. Until so exchanged, the temporary Warrant Certificates shall in
all respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
2.2 Execution and Delivery of Warrant Certificates. Warrant Certificates
evidencing Warrants to purchase initially an aggregate of up to 1,000,000 shares
of New Common Stock shall be executed, on the date of this Agreement, by the
Company, and the Company shall
-5-
<PAGE> 43
thereupon deliver such Warrant Certificates to the respective Persons entitled
thereto. The Warrant Certificates shall be executed on behalf of the Company by
its Chairman of the Board, Chief Executive Officer or President or by any of its
Vice Presidents, either manually or by facsimile signature printed thereon. In
case any officer of the Company whose signature shall have been placed upon any
of the Warrant Certificates shall cease to be such officer of the Company before
issue and delivery thereof, such Warrant Certificates may, nevertheless, be
issued and delivered with the same force and effect as though such person had
not ceased to be such officer of the Company.
3. EXERCISE PRICE; EXERCISE OF WARRANTS GENERALLY.
3.1 Exercise Price. Each Warrant Certificate shall entitle the Holder
thereof, subject to the provisions of this Agreement, to receive one Stock Unit
for each Warrant represented thereby at the price of $1.9375 per Stock Unit (the
"Exercise Price").
3.2 Exercise of Warrants. Subject to the terms and conditions set forth
herein, the Warrants shall be exercisable at any time or from time to time
commencing on the Vesting Date and ending on the Expiration Date.
3.3 Expiration of Warrants. The Warrants shall terminate and become void
as of the close of business on the Expiration Date.
3.4 Method of Exercise. In order to exercise a Warrant or to sell a
Warrant to the Company, the Holder thereof must surrender the Warrant
Certificate evidencing such Warrant to the Company, with one of the forms on the
reverse of or attached to the Warrant Certificate duly executed.
If fewer than all the Warrants represented by a Warrant Certificate are
surrendered, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants that were not
surrendered shall be executed by the Company. The Company shall sign the new
Warrant Certificate, register it in such name or names as may be directed in
writing by the Holder and deliver the new Warrant Certificate to the Person or
Persons entitled to receive the same.
Upon surrender of a Warrant Certificate in conformity with the foregoing
provisions, the Company shall transfer to the Holder of such Warrant Certificate
appropriate evidence of ownership of any shares of Underlying Common Stock, or
other securities or property (including any money) to which the Holder is
entitled, registered or otherwise placed in, or payable to the order of, such
name or names as may be directed in writing by the Holder, and shall deliver
such evidence of ownership and any other securities or property (including any
money) to the Person or Persons entitled to receive the same, together with an
amount in cash in lieu of any fraction of a share as provided in Section 5.3
hereof.
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4. DISSOLUTION, LIQUIDATION OR WINDING UP.
If, prior to the Expiration Date, the Company or any other Person shall
propose a voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Company, the Company shall give written notice thereof to the
Holders of Warrants, at the earliest practicable time, but in no event less than
30 days prior to the date on which such transaction is expected to become
effective or, if earlier, the record date for such transaction.
5. ADJUSTMENTS AND DISTRIBUTIONS WITH RESPECT TO THE WARRANTS.
5.1 Antidilution Provisions. The Exercise Price and the number of shares
of New Common Stock constituting a Stock Unit shall be subject to adjustment
from time to time as set forth below:
(a) Adjustment For Stock Dividends, Subdivisions and Combinations.
If at any time, or from time to time after the date hereof, the holders of
Common Stock (or Other Securities) shall have received, or (on or after
the record date fixed for determination of Stockholders eligible to
receive same) shall have become entitled to receive, without payment
therefor:
(i) other or additional stock or other securities or property
(other than cash) by way of dividends; or
(ii) other or additional stock or other securities or property
by way of stock split, spin-off, split-up, recapitalization,
reclassification, combination of shares, or similar corporate
rearrangement, other than additional shares of Common Stock (or
Other Securities) or Convertible Securities or any rights or options
to acquire any of the foregoing, adjustments in respect of which are
provided for in paragraph (d) of this Section 5,
then in each such case the holder of this Warrant, upon the exercise
hereof, shall be entitled to receive the amount of stock and other
securities and property which such Holder would hold on the date of such
exercise if on the date of this Warrant (the "Original Issue Date") it had
been the holder of record of the number of shares of Common Stock called
for on the face of this Warrant and had thereafter, during the period from
the Original Issue Date to and including the date of such exercise,
retained such shares and all other or additional stock and other
securities and properties receivable by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
subparagraphs (c) and (d) of this Section 5.
(b) Adjustment For Cash Dividends or Distributions. If at any
time, or from time to time, after the date hereof, the Holders of the
Common Stock (or Other Securities) shall have received, or (on or after
the record date fixed for determination of Stockholders
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eligible to receive same) shall have become entitled to receive, any cash
paid or payable (including, without limitation, by way of dividends) then,
in each such case, the Current Warrant Price of each Warrant shall be
reduced by an amount equal to the amount of cash each Holder would receive
or would be entitled to receive if such Warrant had been exercised
immediately prior to the date of such cash distribution (or immediately
prior to the record date fixed for determination of Stockholders eligible
to receive the same).
(c) Adjustment For Reorganization, Consolidation, Merger, etc. In
case of any reorganization of the Company (or any other issuer of Other
Securities) after the Original Issue Date, or in case, after such date,
the Company (or such other issuer) shall transfer all or substantially all
of its properties or assets to or consolidate with or merge into any other
person (corporate or otherwise), then and in each such case the Holder of
this Warrant, upon the exercise hereof, at any time after the consummation
of such reorganization, conveyance, consolidation or merger, shall be
entitled to receive, in lieu of the Common Stock (or Other Securities)
issuable upon such exercise prior to such consummation, the stock and
Other Securities or properties (including cash) to which such Holder would
have been entitled upon such consummation, if such Holder had so exercised
this Warrant immediately prior thereto, all subject to further adjustments
thereafter as provided in subparagraphs (a) and (d); in each such case,
the terms of this Warrant shall be applicable to the shares of Common
Stock and Other Securities receivable upon the exercise of this Warrant
after such consummation, and shall be binding upon the issuer thereof.
(d) Adjustment For Issue or Sale of Common Stock at Less Than Fair
Value.
(i) Adjustment of Exercise Price. In the event the Company
shall issue or sell any shares of Common Stock or Other Securities
for a consideration per share less than the Current Market Price in
effect immediately prior to the time of such issue or sale, the
Exercise Price shall be reduced by multiplying the then existing
Exercise Price by a fraction the numerator of which is (A) the sum
of (x) the number of shares of Common Stock outstanding immediately
prior to such issue or sale multiplied by the applicable Current
Market Price immediately prior to such issue or sale plus (y)
consideration received by the Company upon such issue or sale,
divided by (B) the total number of shares of Common Stock
outstanding immediately after such issue or sale, and the
denominator of which shall be the Current Market Price immediately
prior to such issue or sale. For purposes of this subparagraph, the
date as of which the Current Market Price shall be computed shall be
the earlier of the date upon which the Company shall either enter
into a firm contract for the issuance of such shares, or issue such
shares.
(ii) Adjustment of Number of Shares Purchasable. Upon any
adjustment of the Exercise Price as provided in subparagraph (d)(i)
above, the Holder shall thereafter be entitled to purchase, at the
Exercise Price resulting from
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such adjustment, the number of shares of Common Stock which shall
thereafter constitute a Stock Unit (calculated to the nearest
1/100th of a share) obtained by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of shares
of Common Stock purchasable hereunder immediately prior to such
adjustment, and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(iii) Issuance of Rights, Options or Warrants. In case at any
time the Company shall grant (whether directly or by assumption in a
merger or otherwise) or issue any rights to subscribe for or to
purchase, or any option for the purchase of, Common Stock or
Convertible Securities, whether or not such rights or options or
warrants or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such rights or
options or warrants or upon conversion or exchange of such
Convertible Securities (determined by dividing (a) the total amount,
if any, received or receivable by the Company as consideration for
the granting of such rights or options or warrants, plus the minimum
aggregate amount of additional consideration payable to the Company
upon the exercise of such rights or options or warrants, plus in the
case of such rights or options or warrants which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof,
by (b) the total maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or warrants or upon the
conversion or exchange of all such rights or options or warrants)
shall be less than the Current Market Price existing immediately
prior to the time of the granting thereof, then the number of shares
of Common Stock constituting a Stock Unit and the respective
Exercise Price shall be adjusted as provided in subsections (d)(i)
and (d)(ii) above, on the basis that the maximum number of shares of
Common Stock issuable upon the exercise of such rights or options or
upon conversion or exchange at the maximum amount of such
Convertible Securities issuable upon the exercise of such rights or
options shall be deemed to be outstanding and to have been issued
for such price per share. Adjustments of the Exercise Price shall be
made upon the actual issue of such Common Stock or, with respect to
Convertible Securities, upon exercise of such rights or options or
warrants or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities. For purposes
of this subparagraph (iii), the date on which the Current Market
Price shall be computed shall be the earlier of the date upon which
the Company shall either enter into a firm contract for the issuance
of such rights or other options, or issue such rights or other
options.
(iv) Issuance of Convertible Securities. In case the Company
shall in any manner issue or sell (whether directly or by assumption
in a merger or
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otherwise) any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the
price per share for which shares of Common Stock are issuable upon
such conversion or exchange shall be less than the Current Market
Price existing immediately prior to the time of such issue or sale,
then the number of shares of Common Stock constituting a Stock Unit
and the respective Exercise Price shall be adjusted as provided in
subsections (d)(i) and (d)(ii) above on the basis that the maximum
number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall (as of the date
for the determination of the Current Market Price as hereinafter
provided) be deemed to be outstanding and to have been issued for
such price per share; provided, however (1) no further adjustments
of the Exercise Price or the number of shares of Common Stock for
which this Warrant is exercisable shall be made upon the actual
issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and (2) if any such issue or sale of such
Convertible Securities is made upon exercise of any rights to
subscribe for or to purchase or any option to purchase any such
Convertible Securities for which adjustments of the Exercise Price
have been or are to be made pursuant to other provisions of this
Section 5, no further adjustment of the Exercise Price or the number
of shares of Common Stock for which the Warrant is exercisable shall
be made by reason of such issue or sale. The price per share for
which shares of Common Stock are issuable upon conversion or
exchange shall be determined by dividing (x) the total amount
received or receivable by the Company as consideration for the issue
or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company
upon the conversion or exchange thereof, by (y) the total maximum
number of shares of Common Stock, issuable upon the conversion or
exchange of all Convertible Securities. For purposes hereof, the
date on which the Current Market Price of Common Stock shall be
computed shall be the earlier of the date upon which either the
Company shall enter into a firm contract for the issuance of such
Convertible Securities, or the date such Convertible Securities are
actually issued.
(e) Rights Offerings. In the event the Company shall effect an
offering of Common Stock or Other Securities pro rata among its
Stockholders, the Holder shall be entitled, at its option, to elect to
participate in each and every offering as though this Warrant had been
exercised and the Holder were, at the time of any such rights offering,
then a holder of that number of shares of Common Stock to which the Holder
is then entitled on the exercise hereof.
(f) Distributions to Holders. In the event the Company shall make
any distribution of its assets (other than cash) or any debt securities or
any rights, options or warrants to purchase assets (other than cash) or
debt securities of the Company, the Holder of each Warrant shall be
entitled to receive, at the time of such distribution, such
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non-cash assets or debt securities as such Holder would have been entitled
to receive if such Warrant had been exercised immediately prior to such
distribution (or immediately prior to the record date fixed for
determination of Stockholders eligible to receive the same).
(g Other Provisions Applicable to Adjustments.
(i0 Adjustments Not Required. In the event any adjustment of
the Exercise Price pursuant to this Section 5 shall result in an
adjustment of less than one percent (1%) of the Exercise Price in
effect immediately preceding such adjustment, no adjustment shall be
made, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent
adjustment, subject to the provisions of this subsection (g)(i).
(ii0 Determination of Consideration. Any stock dividends or
distributions of securities shall be deemed to have been issued or
sold without consideration. If any shares of Common Stock, or
Convertible Securities or any rights or options to purchase same
shall be issued for a consideration other than cash, the amount of
the consideration other than cash shall be deemed to be the fair
market value on the date of issuance of the securities, as
determined in good faith by the board of directors of the Company.
Any securities issued in connection with any merger and
consolidation in which the Company is a surviving corporation shall
be valued at the fair market value thereof on the date of issue, as
determined in good faith by the board of directors of the Company.
In the event of any merger or consolidation of the Company in which
the Company is not the surviving corporation or in the event of the
sale of all or substantially all the assets of the Company, stock or
other securities of any other corporation, the Company shall be
deemed to have issued a number of shares of its Common Stock for
stock or securities of the other corporation, computed on the basis
of the actual exchange ratio on which the transaction was
predicated, for a consideration equal to the fair market value on
the date of such transaction of such stock or securities of the
other corporation.
(iii0 Certificate of Adjustment. Upon any adjustment of the
Exercise Price or the number of shares of Common Stock constituting
a Stock Unit, a certificate signed by the President or any Vice
President of the Company setting forth in reasonable detail the
event requiring the adjustment and the method by which such
adjustment was calculated, shall be mailed (by certified mail,
return receipt requested, postage prepaid) to the Holder specifying
the adjusted Exercise Price and the number of shares of Common Stock
purchasable on exercise of this Warrant after giving effect of the
adjustment of such number of shares pursuant to Section 5 hereof.
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(h Other Action Affecting Common Stock. If at any time or from time
to time the Company shall take any action affecting its Common Stock,
other than an action described in any of the foregoing subsections (a)
through (g) and in this Section 5, then, unless in the opinion of the
board of directors of the Company such action will not have a materially
adverse effect upon the rights of the Holders of the Warrants, the number
of shares of New Common Stock, constituting a Stock Unit, or the purchase
price thereof, shall be adjusted in such manner and at such time as the
board of directors of the Company may in good faith determine to be
equitable in the circumstances.
(i Certain Adjustment Events. Anything herein to the contrary
notwithstanding, the Company agrees not to enter into any transaction that
would cause an adjustment of the Current Warrant Price per share to an
amount that is less than the par value per share of the Common Stock.
(j) Anything herein to the contrary notwithstanding, no adjustment
in the Exercise Price, the Stock Unit or the number of shares of Common Stock
that any Holder may be entitled to purchase hereunder shall be made as a
consequence or result of any transaction under or pursuant to a Company Plan.
5.2 Statement on Warrants. Irrespective of any adjustment in the number or
kind of shares issuable upon the exercise of the Warrants, Warrants theretofore
or thereafter issued may continue to express the same price and number and kind
of shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
5.3 Fractional Interest. The Company may, but shall not be required to
issue fractional shares of Common Stock on the exercise of Warrants. If more
than one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full shares of Common Stock which shall be issuable
upon such exercise thereof shall be computed on the basis of the aggregate
number of shares of Common Stock purchasable on exercise of the Warrants so
presented. If any fraction of a share of Common Stock would, except for the
provisions of this Section 5.3, be issuable on the exercise of any Warrant (or
specified portion thereof), the Company may, in lieu of issuing fractional
shares, at its option, but it shall have no obligation to do so, pay an amount
in cash calculated by it to be equal to the then Current Market Value per share
of Common Stock multiplied by such fraction computed to the nearest whole cent.
6. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form only. The
Company shall cause to be kept a register in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Warrant Certificates and of transfers or exchanges of Warrant Certificates as
herein provided. Such register may be maintained by the Company or any other
person selected by the Company at any of the Company's offices or at such other
location as the Company may determine.
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At the option of the Holder, Warrant Certificates may be exchanged at such
office, upon payment of the charges hereinafter provided. Whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute and
deliver the Warrant Certificates that the Holder making the exchange is entitled
to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, duly executed by the Holder thereof or his attorney duly authorized in
writing. Before any disposition is made of any Warrant, or any part thereof, by
sale, gift, pledge or otherwise, the Holder thereof shall deliver to the Company
written notice describing briefly the manner of such proposed disposition. No
such disposition shall be made unless and until (i) the Holder shall have
furnished to the Company an opinion of counsel in form and substance
satisfactory to the Company to the effect that such proposed disposition does
not require registration pursuant to the Securities Act of 1933, as amended, and
the Company shall have advised the holder in writing that such opinion of
counsel is satisfactory to the Company, or (ii) an appropriate registration
statement with respect to the Warrants shall have been declared effective by the
SEC. Any attempted transfer of any Warrants without compliance with the
foregoing requirement shall be null and void.
No service charge shall be made for any registration of transfer or
exchange of Warrant Certificates. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Warrant
Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and when a Warrant Certificate shall have been so endorsed, the
Holder thereof may be treated by the Company and all other persons dealing
therewith as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented thereby, or to the transfer thereof
on the register of the Company, any notice to the contrary notwithstanding; but
until such transfer on such register, the Company may treat the registered
Holder thereof as the owner for all purposes.
7. WARRANT HOLDERS.
7.1 Voting Rights. Prior to the exercise of the Warrants, no Holder of a
Warrant Certificate, as such, shall be entitled to any rights as a stockholder
of the Company, including, without limitation, the right to vote, to consent or
to exercise any preemptive right, except as may be specifically provided for
herein.
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7.2 Right of Action. All rights of action in respect of this Agreement are
vested in the Holders of the Warrants, and any Holder of any Warrant, without
the consent of the Holder of any other Warrant, may, in such Holder's own behalf
and for such Holder's own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, such Holder's right to exercise such Holder's Warrants in the
manner provided in this Agreement.
8. CALL OPTION.
Notwithstanding anything herein to the contrary, during the ten (10)
Business Day period commencing on the repayment of the Obligations and the
termination of the Commitments, the Company shall be entitled to purchase all,
but not less than all, of the outstanding Warrants from the Holders of the
Warrants at the purchase price set forth below (the "Call Option"); provided;
however, that the Call Option shall not extend beyond March 31, 2000. In the
event that the Company wishes to exercise the Call Option, the Company shall
deliver to each Holder notice of the Company's exercise of the Call Option
specifying (a) the purchase price at which the Company shall purchase the
Warrants and (b) a date, which is not later than thirty (30) days from the date
the notice is given for the closing of such purchase. At the closing of such
purchase of the Warrants, the Company shall pay to each Holder by wire transfer
or certified or official bank check, at each Holder's option, an amount that
would provide all of the Holders with an annual rate of return of at least
twenty percent (20%) on a notional amount of $10,000,000 from the Seventh
Amendment Effective Date until the Obligations are paid in full and all
Commitments are terminated, minus interest received by the Holders on the
Liquidity Loans.
9. COVENANTS OF THE COMPANY.
9.1 Reservation of Stock for Issuance on Exercise of Warrants. The Company
covenants that it will at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock solely for
the purpose of issuance upon exercise of Warrants as herein provided, such
number of shares of Common Stock as shall then be issuable upon the exercise of
all outstanding Warrants. The Company covenants that all shares of Common Stock
which shall be so issuable shall, upon such issuance, be duly and validly issued
and fully paid and nonassessable.
9.2 Notices to Holders. If the Company shall propose (a) to pay any
dividend payable in stock of any class to the holders of its Common Stock or to
make any other distribution to the holders of its Common Stock; (b) to offer to
the holders of its Common Stock rights to subscribe for or to purchase any
Convertible Securities or Additional Shares of Common Stock, Other Securities or
shares of stock of any class or any other securities, rights or options; (c) to
effect any reclassification of its Common Stock; (d) to effect any capital
reorganization; (e) to effect any consolidation, merger or sale, transfer or
other disposition of all or substantially all its property, assets or business;
(f) to effect the liquidation, dissolution or winding up of the Company; or
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(g) to hold a special meeting of the holders of its Common Stock (a
"Stockholders' Meeting"), then in each such case, the Company shall give to each
Holder of a Warrant, in accordance with Section 10.5 hereof, a notice of such
proposed action. Such notice (i) shall specify the date on which a record is to
be taken for the purposes of such stock dividend, distribution or rights or the
date on which such reclassification, reorganization, consolidation, merger,
sale, transfer, disposition, liquidation, dissolution or winding up is to take
place and the date of participation therein by the holders of Common Stock, if
any such date is to be fixed, and (ii) shall set forth such facts as shall be
reasonably necessary to indicate the effect of such action on the Common Stock,
the number and kind of any other shares of stock that will constitute a Stock
Unit and the purchase price or prices thereof after giving effect to any
adjustment that will be required as a result of such action. Such notice shall
be given, in the case of any action covered by clause (a) or (b) above, at least
30 days prior to the record date for determining holders of the Common Stock for
purposes of such action and, in the case of any action covered by clauses (c)
through (g), at least 30 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Common Stock,
whichever shall be the earlier. The Company will allow each Holder of Warrants
to attend any Stockholders' Meeting held during the terms of this Agreement.
9.3 Reports to Holders.
(a The Company will supply without cost to each Holder within 15
days after the Company is required to file the same with the SEC, copies
of the annual reports and quarterly reports which the Company may be
required to file with the SEC pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act.
(b If the Company is not required to file with the SEC such reports
and other information and documents referred to in Section 9.3(a) hereof,
the Company shall supply without cost to each Holder of the Warrants (i)
within 90 days after the end of each fiscal year, annual reports
containing substantially the information required to be contained in Form
10-K promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form, (ii) within 45
days after the end of each of the first three fiscal quarters of each
fiscal year, quarterly reports containing substantially the information
required to be contained in Form 10-Q promulgated under the Exchange Act,
or substantially the same information required to be contained in any
successor form, and (iii) promptly from time to time after the occurrence
of an event required to be therein reported, such other reports containing
information required to be contained in Form 8-K promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form. The Company shall also make such reports
available to Holders upon their request.
10. MISCELLANEOUS.
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10.1 Money and Other Property. Any moneys, securities or other property
which at any time shall be held by the Company pursuant to this Agreement shall
be set over in trust for the purpose for which such moneys, securities or other
property shall have been held; but such moneys, securities or other property
need not be segregated from other funds, securities or other property, except to
the extent required by law. The Company shall distribute any money held by it
for payment and distribution to the Holders by mailing by first-class mail a
check in such amount as is appropriate, to each such Holder at the address shown
on the Warrant register of the Company, or as it may be otherwise directed in
writing by such Holder, upon surrender of such Holder's Warrants or shares of
Underlying Common Stock, as the case may be.
10.2 Payment of Taxes. The Company shall pay all taxes and other
governmental charges that may be imposed on the Company or on the Warrants or on
any securities deliverable upon exercise of Warrants with respect thereto. The
Company shall not be required, however, to pay any tax or other charge imposed
in connection with any transfer involved in the issue of any certificate for
shares of Common Stock or other securities underlying the Warrants or payment of
cash to any Person other than the Holder of a Warrant Certificate surrendered
upon the exercise of a Warrant, and in case of such transfer, the Company shall
not be required to issue any stock certificate or pay any cash until such tax or
charge has been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
10.3 Surrender of Certificates. Any Warrant Certificate surrendered for
exercise shall be surrendered to the Company and all Warrant Certificates
surrendered shall be promptly cancelled by the Company and shall not be reissued
by the Company.
10.4 Mutilated, Destroyed, Lost and Stolen Warrant Certificates. If (a)
any mutilated Warrant Certificate is surrendered to the Company or (b) the
Company receives evidence to its satisfaction of the destruction, loss or theft
of any Warrant Certificate, and there is delivered to the Company such security
or indemnity as may be required by it to save it harmless, then, in the absence
of notice to the Company that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver, in exchange for any
such mutilated Warrant Certificate or in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Warrant Certificate of like tenor and for a
like aggregate number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section 10.4,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and other
expenses (including the reasonable fees and expenses of counsel to the Company)
in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 10.4 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement
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equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder.
The provisions of this Section 10.4 are exclusive and shall preclude (to
the extent lawful) all other rights or remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Warrant Certificates.
10.5 Notices. Any notice, demand or delivery authorized by this Agreement
shall be sufficiently given or made when mailed if sent by first-class mail,
postage prepaid, addressed to any Holder of a Warrant at such Holder's address
shown on the register of the Company and to the Company as follows:
If to the Company: Genicom Corporation
14800 Conference Center Drive, Suite 400
Chantilly, Virginia 20151
Attn: President
With a copy to: McGuire, Woods, Battle & Boothe, L.L.P.
8280 Greensboro Drive, Suite 900, Tysons Center
McLean, Virginia 22102-3892
Attn: Michael D. Flemming
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
10.6 Applicable Law. This Agreement and each Warrant issued hereunder and
all rights arising hereunder shall be governed by the laws of the State of
Delaware.
10.7 Persons Benefitting. This Agreement shall be binding upon and inure
to the benefit of the Company and its successors, assigns, beneficiaries,
executors and administrators, and the Holders from time to time of the Warrants
and their respective successors, assigns, beneficiaries, executors and
administrators. Nothing in this Agreement is intended or shall be construed to
confer upon any Person, other than the Company and the Holders of the Warrants,
any right, remedy or claim under or by reason of this Agreement or any part
hereof.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
10.9 Amendments. The Company may, without the consent of the Holders of
the Warrants, by supplemental agreement or otherwise, make any changes or
corrections in this Agreement that it shall have been advised by counsel (a) are
required to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other
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<PAGE> 55
provision herein or (b) add to the covenants and agreements of the Company for
the benefit of the Holders, or surrender any rights or power reserved to or
conferred upon the Company in this Agreement; provided, that, in each case, such
changes or corrections shall not adversely affect the interests of the Holders
in any material respect.
10.10 Headings. The descriptive headings of the several Sections of this
Agreement are inserted for convenience and shall not control or affect the
meaning or construction of any of the provisions hereof.
10.11 Entire Agreement. This Agreement, together with the Warrant
Certificates and the Registration Rights Agreement referenced herein, shall
constitute the entire agreement of the Company and the Holders with respect to
the subject matter hereof.
11. AGREEMENT REGARDING REGISTRATION RIGHTS.
Concurrently with the original issuance of the Warrants to the Initial
Holders thereof, the Company and the Initial Holders have entered into a
Registration Rights Agreement (the "Registration Rights Agreement") granting the
Initial Holders (and certain of their permitted successors and assigns) certain
registration rights with respect to the Warrants and the Underlying Common
Stock. The terms of the Registration Rights Agreement are incorporated by
reference in this Agreement as fully as if the same were set forth herein. A
copy of the Registration Rights Agreement is on file and available for
inspection at the principal offices of the Company, and a copy of the
Registration Rights Agreement will be furnished, free of charge, to any Holder
hereof upon written request to the Company.
IN WITNESS WHEREOF the parties hereto have caused this Warrant Agreement
to be duly executed on the date first above written.
GENICOM CORPORATION
By /s/ James Gale
----------------------------------------
Title: Senior Vice President
NATIONSBANK, N.A.
By /s/ Jay T. Wampler
----------------------------------------
Title: Senior Vice President
-18-
<PAGE> 56
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
(as successor in interest to
CREDITANSTALT CORPORATE FINANCE, INC.)
By /s/ Andrew J. Russell
----------------------------------------
Title: Vice President
By /s/ Jane Orndahl
----------------------------------------
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management, as Investment
Advisor
By /s/ Scott H. Page
----------------------------------------
Title: Vice President
CRESTAR BANK
By /s/ Jo M. Stewart
----------------------------------------
Title: Senior Vice President
THE RIGGS NATIONAL BANK OF
WASHINGTON, D.C.
By /s/ Alfred J. Serafino
----------------------------------------
Title: Executive Vice President
<PAGE> 57
FLOATING RATE PORTFOLIO
By: Invesco Senior Secured Management,
Inc., as attorney-in-fact
By /s/ Anne M. McCarthy
----------------------------------------
Title: Authorized Signatory
KZH III LLC
By /s/ Shari Goldstein
----------------------------------------
Title: Authorized Agent
TORONTO DOMINION (TEXAS), INC.
By /s/ Sonja R. Jordan
----------------------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Scott H. Page
----------------------------------------
Title: Vice President
BANK OF SCOTLAND
By /s/ Janet Taffe
----------------------------------------
Title: Asst. Vice President
NATIONAL CITY BANK OF KENTUCKY
By /s/ Jerrol Z. Miles
----------------------------------------
Title: Senior Vice President
<PAGE> 58
SCHEDULE I
<TABLE>
<CAPTION>
WARRANTHOLDER PERCENTAGE
------------- ----------
<S> <C>
NationsBank, N.A.
901 Main Street, 66th Floor
Dallas, Texas 75202
Attn: Jay T. Wampler
Facsimile No.: (214) 508-3533 12.517123010%
Bank Austria Creditanstalt Corporate Finance,
Inc.
Two Greenwich Plaza
Greenwich, Connecticut 06830
Attn: Jane Orndahl
Facsimile No.: (203) 861-6413 11.472758712%
Crestar Bank
1445 New York Avenue, N.W., 3rd Floor
Washington, D.C. 20005
Attn: C.B. "Joe" Bohannon
Facsimile No.: (202) 879-6690 11.472758712%
The Riggs National Bank of Washington, D.C.
808 17th Street N.W.
Washington, D.C. 20006
Attn: J. Jordan O'Neill
Facsimile No.: (202) 835-5977 11.472758712%
National City Bank of Kentucky
101 S. 5th Street
Louisville, Kentucky 40202
Attn: Jerrol Z. Miles
Facsimile No.: (502) 581-5203 9.233193284%
Bank of Scotland
111 Riverside Avenue,
Suite 230
Haskell Building
Jacksonville, Florida 32202
Attn: Hugh Van Seaton
Facsimile No.: (904) 353-7833 9.233193284%
Floating Rate Portfolio
c/o INVESCO Senior Secured Management, Inc.
1166 Avenue of the Americas
New York, New York 10036-2789
Attn: Anne McCarthy
Facsimile No.: (212) 278-9619 4.324776786%
KZH III LLC
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320 12.974330358%
</TABLE>
<PAGE> 59
<TABLE>
<CAPTION>
WARRANTHOLDER PERCENTAGE
------------- ----------
<S> <C>
Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attn: David G. Parker
Facsimile No.: (713) 652-0914 4.324776786%
Senior Debt Portfolio
c/o Eaton Vance Management
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594 11.676897321%
Eaton Vance Institutional Senior Loan Fund
c/o Eaton Vance Management
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594 1.297433036%
TOTAL 100.00%
</TABLE>
<PAGE> 60
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED TO THE
REGISTERED OWNER IN RELIANCE UPON WRITTEN REPRESENTATION THAT THESE SECURITIES
HAVE BEEN TAKEN FOR INVESTMENT. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE OR BLUE SKY LAWS AND MAY
NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY SHALL HAVE BEEN RECEIVED BY THE COMPANY TO THE EFFECT THAT SUCH
SALE, TRANSFER OR ASSIGNMENT WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, AND OTHER APPLICABLE
STATE SECURITIES LAWS.
THE STOCK ISSUABLE UPON EXERCISE OF THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED UNLESS AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY SHALL HAVE
BEEN RECEIVED BY THE COMPANY TO THE EFFECT THAT SUCH SALE, TRANSFER OR
ASSIGNMENT WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND THE RULES AND REGULATIONS THEREUNDER AND OTHER APPLICABLE SECURITIES LAWS.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE STOCK UNITS
OF GENICOM CORPORATION
No. _____ Certificate for _______Warrants
This certifies that _________________, or registered assigns, is the
registered holder of the number of warrants set forth above. Each Warrant
entitles the holder thereof (a "Holder"), subject to the provisions contained
herein and in the Warrant Agreement referred to below, to receive from Genicom
Corporation, a Delaware corporation (the "Company"), one Stock Unit of the
Company at the exercise price of $____ per Stock Unit. This Warrant Certificate
shall terminate and become void as of the close of business on the earlier of
(a) March 31, 2010 or (b) ten (10) years after the Obligations are paid in full
and the Commitments terminated (the "Expiration Date").
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of March __, 1999 (the "Warrant Agreement"), between
the Company and the Warrantholders (as such term is defined in the Warrant
Agreement) and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is hereby
made to the Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company and the Holders of the Warrants.
<PAGE> 61
As provided in the Warrant Agreement and subject to the terms and
conditions therein set forth, the Warrants shall be exercisable on or prior to
the Expiration Date at any time or from time to time on or after the date
hereof.
The number of shares of Common Stock constituting a Stock Unit is subject
to adjustment as provided in the Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise of
Warrants shall, upon such issuance, be duly and validly issued and fully paid
and nonassessable.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified.
The Company shall pay all taxes and other governmental charges that may be
imposed on the Company or on the Warrants or on any securities deliverable upon
exercise of Warrants. The Company shall not be required, however, to pay any tax
or other charge imposed in connection with any transfer involved in the issue of
any certificate for shares of Common Stock or other securities underlying the
Warrants or payment of cash to any person other than the Holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and in case of such
transfer, the Company shall not be required to issue any stock certificate or
pay any cash until such tax or other charge has been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
This Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Company,
upon surrender of this Warrant Certificate for registration of transfer at the
office of the Company duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, duly executed by the Holder
hereof or his attorney duly authorized in writing, with signature guaranteed as
specified in the attached Form of Assignment. Upon any partial transfer, the
Company will issue and deliver to such holder a new Warrant Certificate or
Certificates with respect to any portion not so transferred.
No service charge shall be made for any registration of transfer or
exchange of the Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Each taker and holder of this Warrant Certificate by taking or holding the
same, consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the holder hereof may be treated by the Company and all
other persons dealing with this Warrant Certificate as the absolute owner hereof
for any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the register of the Company, any notice to
the contrary notwithstanding, but until such transfer on such register, the
Company may treat the registered Holder hereof as the owner for all purposes.
<PAGE> 62
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate that are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
Copies of the Warrant Agreement are on file at the office of the
Company and may be obtained by writing to the Company at the following
address:__________________________________________________________________
____________________________________________________, Attention: Secretary.
This Warrant Certificate shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
Dated: _____________________, 199_.
GENICOM CORPORATION
By:
----------------------------------------------------------------------------
Name:
--------------------------------------------------------------------------
Title:
-------------------------------------------------------------------------
A-3
<PAGE> 63
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: _________________________
The undersigned irrevocably exercises ___________________ of the Warrants
for the purchase of one Stock Unit of Genicom Corporation for each Warrant
represented by the Warrant Certificate, on the terms and conditions specified in
the within Warrant Certificate and the Warrant Agreement therein referred to,
surrenders this Warrant Certificate and all right, title and interest therein to
_____________________ and directs that the shares of New Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date: ________________, ____.
(1)
---------------------------------------------
(Signature of Owner)
---------------------------------------------
(Street Address)
---------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
---------------------------------------------
- -------------------
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national
bank or trust company or by a member firm of any national securities
exchange.
A-4
<PAGE> 64
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-5
<PAGE> 65
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the within Warrant
Certificate hereby sells, assigns, and transfers unto the Assignee(s) named
below (including the undersigned with respect to any Warrants constituting a
part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below.
<TABLE>
<CAPTION>
Social Security
or other
identifying
Names of number of Number of
Assignee(s) Address Assignee(s) Warrants
- ----------- ------- ----------- --------
<S> <C> <C> <C>
</TABLE>
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of Genicom Corporation
maintained for that purpose, with full power of substitution in the premises.
Date: _________________, _____.
(1)
---------------------------------------------
(Signature of Owner)
---------------------------------------------
(Street Address)
---------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
---------------------------------------------
- -------------------
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a national
bank or trust company or by a member firm of any national securities
exchange.
A-6
<PAGE> 66
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. DEFINITIONS............................................................1
Additional Shares of Common Stock......................................1
Affiliate..............................................................1
Agent..................................................................1
Business Day...........................................................1
Call Option............................................................1
Commitments............................................................1
Common Stock...........................................................1
Company................................................................2
Convertible Securities.................................................2
Credit Agreement.......................................................2
Credit Documents.......................................................2
Current Market Price...................................................2
Current Warrant Price..................................................3
Exchange Act...........................................................3
Expiration Date........................................................3
Guarantors.............................................................3
Holders................................................................3
Initial Holders........................................................3
Issuing Lender.........................................................3
Lenders................................................................3
Liquidity Facility.....................................................3
Liquidity Loans........................................................3
Majority of Holders....................................................3
Maturity Date..........................................................3
New Common Stock.......................................................3
Notes..................................................................3
Obligations............................................................4
Other Securities.......................................................4
Person.................................................................4
SEC....................................................................4
Seventh Amendment Effective Date.......................................4
Stockholders...........................................................4
Stock Unit.............................................................4
Swingline Lender.......................................................4
Underlying Common Stock................................................4
Warrant Certificates...................................................4
Warrants...............................................................4
2. ORIGINAL ISSUE OF WARRANTS.............................................5
2.1 Form of Warrant Certificates.....................................5
2.2 Execution and Delivery of Warrant Certificates...................5
</TABLE>
<PAGE> 67
<TABLE>
<S> <C> <C>
3. EXERCISE PRICE; EXERCISE OF WARRANTS GENERALLY.........................6
3.1 Exercise Price...................................................6
3.2 Exercise of Warrants.............................................6
3.3 Expiration of Warrants...........................................6
3.4 Method of Exercise...............................................6
4. DISSOLUTION, LIQUIDATION OR WINDING UP.................................6
5. ADJUSTMENTS AND DISTRIBUTIONS WITH RESPECT TO THE WARRANTS ............7
5.1 Antidilution Provisions..........................................7
(a) Adjustment For Stock Dividends, Subdivisions and
Combinations...............................................7
(b) Adjustment For Cash Dividends or Distributions.............7
(c) Adjustment For Reorganization, Consolidation, Merger, etc..8
(d) Adjustment For Issue or Sale of Common Stock at Less Than
Fair Value.................................................8
(e) Rights Offerings..........................................10
(f) Distributions to Holders..................................10
(g) Other Provisions Applicable to Adjustments................11
(h) Other Action Affecting Common Stock.......................11
(i) Certain Adjustment Events.................................12
5.2 Statement on Warrants. .........................................12
5.3 Fractional Interest.............................................12
6. WARRANT TRANSFER BOOKS................................................12
7. WARRANT HOLDERS.......................................................13
7.1 Voting Rights...................................................13
7.2 Right of Action.................................................13
8. CALL OPTION...........................................................14
9. COVENANTS OF THE COMPANY..............................................14
9.1 Reservation of Stock for Issuance on Exercise of Warrants.......14
9.2 Notices to Holders..............................................14
9.3 Reports to Holders..............................................15
10. MISCELLANEOUS.........................................................15
10.1 Money and Other Property........................................15
10.2 Payment of Taxes................................................16
10.3 Surrender of Certificates.......................................16
10.4 Mutilated, Destroyed, Lost and Stolen Warrant Certificates......16
10.5 Notices.........................................................16
10.6 Applicable Law..................................................17
10.7 Persons Benefitting.............................................17
10.8 Counterparts....................................................17
10.9 Amendments......................................................17
10.10 Headings........................................................17
</TABLE>
<PAGE> 68
<TABLE>
<S> <C> <C>
10.11 Entire Agreement................................................18
11. AGREEMENT REGARDING REGISTRATION RIGHTS...............................18
</TABLE>
<PAGE> 69
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C>
EXHIBIT A - Form of Warrant Certificate A-1
</TABLE>
iv
<PAGE> 70
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of April 2, 1999, by and between Genicom Corporation, a Delaware corporation
(the "Company"), and each of Warrantholders (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant certain registration rights to
the Warrantholders with respect to the Registrable Securities (as hereinafter
defined).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1 Definitions.
"Agreement" will be deemed to have the meaning set forth in the
preamble to this document.
"Commission" means the U.S. Securities and Exchange Commission or
any other Federal agency administering the Securities Act at the time in
question.
"Common Stock" means shares of the Company's common stock, par value
$0.01 per share.
"Company" will be deemed to have the meaning set forth in the
preamble to this Agreement.
"Demand Notice" will be deemed to have the meaning set forth in
Subsection 2(a).
"Demand Registration" means the registration of Registrable
Securities pursuant to the terms and conditions of Subsection 2(a).
"Demanding Holder(s)" will be deemed to have the meaning set
forth in Subsection 2(f).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar or successor Federal statute, and the rules and
regulations of the Commission thereunder, all as in effect at the time in
question. Reference to a particular section of the Exchange Act will include a
reference to the comparable section, if any, of any such similar or successor
Federal statute.
"Holder" means any Warrantholder, and, subject to Subsection 10(f),
any permitted assignee or transferee of Warrants and/or a Registrable Security,
which assignee or
<PAGE> 71
transferee expressly is granted rights as a Holder under this Agreement at the
time of such transfer.
"Indemnified Party" means a party who is to be indemnified
pursuant to Section 7.
"Indemnifying Party" means a party who will indemnify an Indemnified
Party pursuant to Section 7.
"Inspectors" will be deemed to have the meaning set forth in
Subsection 5(h).
"Losses" will be deemed to have the meaning set forth in
Subsection 7(a).
"Majority Demanding Holders" will be deemed to have the meaning set
forth in Subsection 2(f).
"Material Adverse Effect" will be deemed to have the meaning set
forth in Subsection 2(e).
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
"Piggy-back Registration" means the registration of Registrable
Securities pursuant to the terms and conditions of Subsection 3(a).
"Pro Rata Basis" means a pro rata allocation based on the number of
Registrable Securities held by each Holder requesting that Registrable
Securities be included in a Registration Statement offering pursuant to this
Agreement.
"Records" will be deemed to have the meaning set forth in
Subsection 5(h).
"Registrable Securities" means the shares of Common Stock issued or
issuable pursuant to the Warrants, and any and all securities of the Company
issued or issuable with respect to such shares by way of a dividend,
reclassification, stock split, or other distribution or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. For purposes of computing the number of Registrable
Securities held by a Holder, each Warrant held by such Holder will be deemed to
represent the number of shares of Common Stock issuable upon exercise of such
Warrant. Any Registrable Security will cease to be a Registrable Security when
(i) a Registration Statement covering such Registrable Security has been
declared effective by the Commission and the Registrable Security has been
disposed of pursuant to such effective Registration Statement, (ii) the
Registrable Security is sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act are met, (iii) the Registrable Security has been otherwise
transferred, the Company has delivered a new certificate or other evidence of
ownership with respect to such Registrable Security not bearing a legend
restricting further transfer, and such Registrable Security may be resold
without subsequent registration under the Securities Act, (iv) the Registrable
Security is eligible for sale pursuant to Rule 144(k) (or any
<PAGE> 72
successor provision) under the Securities Act or (v) the Registrable Security is
transferred by any Holder to any transferee who is not entitled to the benefits
of this Agreement as contemplated by Subsection 10(f).
"Registration Expenses" means those expenses associated with any
Registration Statement filed hereunder, as described in Section 6.
"Registration Statement" means a form of registration statement
promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as in effect at the time in question. Reference to a
particular section of the Securities Act will include a reference to the
comparable section, if any, of any such similar or successor Federal statute.
"Selling Demand Holders" will be deemed to have the meaning set
forth in Subsection 2(c).
"Selling Piggy-back Holders" will be deemed to have the meaning set
forth in Subsection 3(b).
"Shelf Registration" means a "shelf" registration pursuant to Rule
415 (or any successor thereto) under the Securities Act.
"Term" will be deemed to have the meaning set forth in Subsection
10(b).
"Warrant" means one of the warrants to purchase shares of Common
Stock issued pursuant to the Warrant Agreement.
"Warrantholder" means each of NationsBank, N.A.; Bank Austria
Creditanstalt Corporate Finance, Inc.; Eaton Vance Institutional Senior Loan
Fund; Crestar Bank; The Riggs National Bank of Washington, D.C.; Floating Rate
Portfolio; KZH III LLC; Toronto Dominion (Texas), Inc.; Senior Debt Portfolio;
Bank of Scotland; and National City Bank of Kentucky.
"Warrant Agreement " means that certain Warrant Agreement of even date
herewith, by and between the Company and the Warrantholders.
2 Demand Registration.
(a) Request for Registration. At any time subsequent to the date on
which the Warrants become exercisable for Registrable Securities pursuant to the
terms of the Warrant Agreement, any Holder who owns or group of Holders who own
in the aggregate, twenty five percent (25%) or more of the Registrable
Securities then issued and outstanding may make a written request ("Demand
Notice") for registration under the Securities Act (a "Demand
-3-
<PAGE> 73
Registration") of all or any portion of the then issued and outstanding
Registrable Securities owned by such Holder or Holders, but not less than twenty
five percent (25%) of the then issued and outstanding Registrable Securities,
subject to the terms and conditions of this Agreement and in no event less than
250,000 shares. Each Demand Notice will specify the number of shares of
Registrable Securities proposed to be sold and will also specify the intended
method(s) of disposition thereof. Within ten (10) days after receipt of each
Demand Notice, the Company will give written notice of the Company's receipt of
such Demand Notice to all other Holders at least twenty (20) days before the
anticipated filing date of such Registration Statement, and such Holders will be
given the opportunity to participate in such Demand Registration and will be
deemed a Demanding Holder (as hereinafter defined) for purposes of this
Agreement. Subject to Subsection 2(d), the Company will include in such Demand
Registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten (10) days after the
delivery to the applicable Holders of the Company's notice of receipt of a
Demand Notice. Each such Holder's request to participate in such Demand
Registration must also specify the number of Registrable Securities to be
registered and, subject to Subsection 2(f) and Section 8, the intended method(s)
of disposition thereof. Demand Registrations will be on such appropriate
registration form of the Commission as the Company will determine.
(b) Limitation on Demand Registration. The Company will not be
obligated to effect any Demand Registrations at any time during the Term when
the Company is not eligible to use a Form S-3 or Form S-2 Registration Statement
(or, in each case, any successor or similar forms promulgated under the
Securities Act that may be in effect and under which the Company is eligible to
register the Registrable Securities for offer and sale under the Securities
Act). The Company will not be obligated to effect more than four (4) Demand
Registrations at any time during the Term when the Company is eligible to use a
Form S-3 or Form S-2 Registration Statement (or, in each case, any successor or
similar forms promulgated under the Securities Act that may be in effect and
under which the Company is eligible to register the Registrable Securities for
offer and sale under the Securities Act). Notwithstanding any provision of this
Agreement to the contrary, the Company will not be obligated to honor any Demand
Notice requesting a Demand Registration, or otherwise cause a Demand
Registration to become effective, hereunder if the Demand Notice is delivered to
the Company during the period beginning ninety (90) days before the anticipated
effective date of a Demand Registration that is being effected pursuant to a
previously delivered Demand Notice and ending ninety (90) days after the closing
date of any such offering.
(c) Effective Registration and Expenses. Upon receipt of a written
request for a Demand Registration, the Company will (i) take appropriate action,
on a reasonable, timely basis, to prepare and file a Registration Statement
covering the Registrable Shares requested to be included in such Demand
Registration (subject to Subsection 2(e)) and (ii) use commercially reasonable
efforts to cause each Demand Registration to become effective under the
Securities Act and thereafter to keep it effective under the Securities Act for
a period of one hundred eighty (180) days (subject to extension pursuant to
Section 5). A registration will not count as a Demand Registration (i) unless a
Registration Statement with respect thereto has become effective, or (ii) if
after it has become effective, such registration is interfered with by any stop
-4-
<PAGE> 74
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Holders
whose Registrable Securities are included in such Demand Registration ("Selling
Demand Holders"). The Company will pay all Registration Expenses in connection
with any Demand Registration as set forth in Section 6, whether or not it
becomes effective.
(d) No Third-Party Piggy-back on Demand Registrations. Neither the
Company nor any of its respective securityholders (other than the Holders of
Registrable Securities in such capacity pursuant to Section 3 hereof) may
include securities of the Company in any Demand Registration without the prior
written consent of the Demanding Holder or, if more than one (1) Demanding
Holder, the Majority Demanding Holders.
3 Piggy-back Registration.
(a) Request for Registration. At any time, if the Company proposes
to file a Registration Statement under the Securities Act (other than a
Registration Statement on Form S-4 or S-8 (or any successor or similar forms
promulgated under the Securities Act that may be in effect and under which the
Company is eligible to register securities for offer and sale under the
Securities Act) or a Registration Statement filed in connection with an exchange
offer or offering of securities or debt solely to the Company's existing
security or debt holders) with respect to an offering of any class of equity
securities by the Company for its own account or for the account of any of its
security holders and such Registration Statement is capable of being used to
register Registrable Securities, then the Company will give written notice of
such proposed filing to each Holder as soon as practicable (but in no event less
than twenty (20) days before the anticipated filing date). Such notice will
offer each Holder the opportunity to have all or any of the Registrable
Securities held by such Holder included in the Registration Statement proposed
to be filed or, at the Company's option, in a separate Registration Statement to
be filed concurrently with such Registration Statement (the "Piggy-back
Registration"). Within ten (10) days after receiving such notice, each Holder
may make a written request to the Company that any or all of such Holder's
Registrable Securities be included in the Piggy-back Registration, which notice
will specify the number of shares to be so included and, subject to Section 8,
the intended method(s) of disposition thereof. Subject to Subsection 3(b) and
Section 8, the Company will include in the Piggy-back Registration (or in a
separate Registration Statement filed concurrently therewith) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten (10) days after the receipt by each Holder of the
Company's notice. The Company may in its discretion withdraw any Registration
Statement filed pursuant to this Subsection 3(a) subsequent to its filing
without liability to the Holders except with respect to Registration Expenses.
Any Holder will be permitted to withdraw all or part of such Holder's
Registrable Securities requested to be included in a Piggy-back Registration at
any time prior to the effective date of such Piggy-back Registration without any
liability for any Registration Expenses. The Company will be obligated to effect
no more than three (3) Piggy-back Registrations pursuant hereto.
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(b) Priority on Piggy-back Registration. If any Piggy-back
Registration is to be an underwritten offering, the Company will use
commercially reasonable efforts to cause the managing Underwriter or
Underwriters to permit the shares of Registrable Securities requested by the
Holders of Registrable Securities ("Selling Piggy-back Holders") to be included
in the Piggy-back Registration (on the same terms and conditions as similar
securities of the Company included therein to the extent appropriate).
Notwithstanding the foregoing, if the managing Underwriter or Underwriters of
such offering advise the Company in writing that, in their good faith judgment,
the number of Registrable Securities and any other securities requested to be
included in such offering is sufficiently large to have Material Adverse Effect,
then if such Piggy-back Registration is incident to a primary registration on
behalf of the Company, the amount of securities to be included in the Piggy-back
Registration for all persons (other than the Company) will first be reduced,
subject to any written agreement among the Selling Piggy-back Holders and other
participants, on a Pro Rata Basis so that the total number of securities to be
included in the offering will be the total number of securities recommended by
such managing Underwriter or Underwriters, unless any of the Selling Piggy-back
Holders or other participants desires to sell a number of Registrable Securities
that is less than the total pro rata amount that such Selling Piggy-back Holder
or other participants is entitled to sell, in which event the number of
Registrable Securities not so elected to be sold will be allocated among the
other Selling Piggy-back Holders and other participants on a Pro Rata Basis.
4 Holdback Agreements.
(a) Restrictions on Public Sale by Holder of Registrable Securities.
Upon inclusion by the Company of any Holder's Registrable Securities in a
Registration Statement filed pursuant to Sections 2 or 3, all Holders agree not
to effect any public sale or distribution of the issue of securities being
registered or a similar security of the Company or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act, during the fourteen
(14) days prior to, and during the one hundred eighty (180) day period beginning
on, the effective date of such Registration Statement (except as part of such
registration), if and to the extent requested by the Company in the case of a
non-underwritten public offering or if and to the extent requested by the
managing Underwriter or Underwriters in the case of an underwritten public
offering.
(b) Restrictions on Public Sale by the Company. The Company agrees
that it will not effect any public or private sale or distribution of the
Registrable Securities or a similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities (except
pursuant to a Registration Statement on Form S-4 or S-8 or any successor or
similar forms promulgated under the Securities Act that may be in effect and
under which the Company is eligible to register securities for offer and sale
under the Securities Act), during the fourteen (14) days prior to, and during
the one hundred eighty (180) day period beginning on, the effective date of any
Demand Registration Statement other than a Shelf Registration.
5 Registration Procedures.
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Subject to the other provisions and limitations contained in this
Agreement, whenever any Holder has requested that any Registrable Securities be
registered pursuant to Sections 2 or 3, the Company will use commercially
reasonable efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method(s) of disposition thereof as
quickly as practicable, and in connection with any such request, the Company
will as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement on
any form of Registration Statement for which the Company then qualifies
and which counsel for the Company deems appropriate and which form is
available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution
thereof, and use its best efforts to cause such filed Registration
Statement to become effective under the Securities Act; provided, however,
that, (i) at least five (5) days before filing a Registration Statement or
prospectus or as promptly as practicable prior to filing any amendments or
supplements thereto, the Company will furnish to one counsel selected by
the Holder or Holders of the Registrable Securities covered by such
Registration Statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel, and (ii)
after the filing of the Registration Statement, the Company will promptly
notify each such Holder and such counsel of comments received from, or any
stop order issued or threatened by, the Commission and take all
commercially reasonable actions required to respond to such comments or,
as the case may be, prevent the entry of such stop order or to remove it
if it has been entered;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the applicable period required by the terms of
this Agreement, which will terminate when all Registrable Securities
covered by such Registration Statement have been sold or, in the case of
Piggy-back Registrations pursuant to Section 3, for such time period as
the Company will determine in its sole discretion (but not before the
expiration of the ninety (90) day period referred to in subsection 4(3) of
the Securities Act and Rule 174 thereunder, if applicable);
(c) furnish to each Holder of Registrable Securities covered by such
Registration Statement, prior to filing the Registration Statement, if
requested, copies of such Registration Statement as proposed to be filed,
and thereafter furnish to each such Holder such number of copies of such
Registration Statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated or deemed
to be incorporated therein by reference), the prospectus included in such
Registration Statement (including each preliminary prospectus and
supplement), and such other documents as each such Holder may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by each such Holder and covered by such Registration
Statement in accordance with the intended method(s) of disposition as set
forth in such Registration Statement;
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(d) use commercially reasonable efforts to register or qualify such
Registrable Securities under such other securities/blue sky laws of such
jurisdictions as each Holder of Registrable Securities covered by such
Registration Statement reasonably (in light of each such Holder's intended
plan of distribution) requests and do any and all other acts and things
which are reasonably necessary to enable each such Holder to consummate
the disposition in such jurisdictions of the Registrable Securities owned
by each such Holder and covered by such Registration Statement and keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is effective; provided,
however, that the Company will not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required
to qualify but for this Subsection 5(d), (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process
in any such jurisdiction;
(e) use commercially reasonable efforts to 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 to enable each Holder of Registrable Securities
covered by the Registration Statement to consummate the disposition of
such Registrable Securities in accordance with the intended method(s) of
disposition as set forth in such Registration Statement; provided,
however, that the Company will not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required
to qualify but for this Subsection 5(e), (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process
in any such jurisdiction;
(f) at any time when a prospectus relating to Registrable Securities
is required to be delivered under the Securities Act, (i) notify each
Holder of Registrable Securities covered by the Registration Statement of
the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus, (ii) prepare and file such supplement,
amendment or any other required document 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 (iii) promptly make available to
each such Holder any such supplement, amendment or other document;
(g) use commercially reasonable efforts to obtain any necessary
consents in connection with any proposed registration and sale of
Registrable Securities in accordance with the intended method(s) of
disposition as set forth in such Registration Statement, and take such
other actions as are reasonably required in order to expedite or
facilitate the disposition, other than through an underwritten offering,
of such Registrable Securities in accordance with the intended method(s)
of disposition as set forth in such Registration Statement;
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(h) make available to each Holder of Registrable Securities covered
by the Registration Statement all information as may be reasonably
requested by such Holder in conncection with such registration;
(i) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders as soon as reasonably practicable, an earnings
statement covering a period of twelve (12) months, beginning within three
(3) months after the effective date of the Registration Statement, which
earnings statement will satisfy the provisions of section 11(a) of the
Securities Act;
(j) if requested by the managing Underwriter or Underwriters, if
any, or any Holder of Registrable Securities covered by the Registration
Statement in connection with an underwritten offering pursuant to Section
3 hereof, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing Underwriter or
Underwriters, if any, and/or any such Holder reasonably requests to be
included therein, as may be required by applicable laws and (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the
Company will not be required to take any actions pursuant to this
Subsection 5(k) that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law;
(k) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement filed
in connection herewith, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment;
(l) cooperate with each Holder of Registrable Securities covered by
the Registration Statement and the managing Underwriter or Underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates will
not bear any restrictive legends and will be in a form eligible for
deposit with the transfer agent for the Common Stock; and enable such
Registrable Securities to be in such denominations and registered in such
names as the managing Underwriter or Underwriters, if any, or Holders of
Registrable Securities covered by the Registration Statement may request
at least two (2) business days prior to any sale of such Registrable
Securities;
(m) comply (during the effectiveness of any Registration Statement
filed hereunder) with the provisions of all applicable securities/blue sky
laws, including, without limitation, the Securities Act, with respect to
the disposition of Registrable Securities covered by such Registration
Statement in accordance with the intended method(s) of distribution as set
forth in such Registration Statement;
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(n) cause all Registrable Securities included in a Registration
Statement filed hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed and, if not
so listed, to be listed on the automated quotation system of the NASD and,
if listed on the automated quotation system of the NASD, use commercially
reasonable efforts to secure designation of all such Registrable
Securities covered by such Registration Statement as a NASDAQ "national
market system security" within the meaning of Rule 11Aa2-1 of the Exchange
Act or, failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, use
commercially reasonable efforts to arrange for at least two market makers
to register as such with respect to such Registrable Securities with the
NASD;
(o) to provide, in accordance with the requirements of applicable
law, a transfer agent and registrar for all Registrable Securities covered
by a Registration Statement filed hereunder not later than the effective
date of such Registration Statement; and
(p) take all such other actions as the managing Underwriter or
Underwriters (or if there is no managing Underwriter or Underwriters, the
Majority Demanding Holders), reasonably request to expedite or facilitate
the disposition of Registrable Securities covered by a Registration
Statement filed hereunder in connection with an underwritten offering in
which any Holder participates pursuant to Section 3 hereof in accordance
with the intended method(s) of distribution as set forth in such
Registration Statement.
Notwithstanding the provisions of this Section 5, the Company will be entitled
to postpone, for a reasonable period of time, the filing or effectiveness of any
Registration Statement under Sections 2 or 3 if (i) the Company determines, in
the good faith exercise of its reasonable business judgment, that such
registration and offering could materially interfere with or adversely affect
bona fide financing, acquisition, or other material business plans of the
Company (including a proposed primary offering by the Company of its own
securities) at the time the right to delay is exercised or would require
disclosure of non-public information, the premature disclosure of which could
materially and adversely affect the business, properties, operations or
financial results of the Company; provided, however, that the Company will not
be required to disclose to the Holders requesting registration any such
transaction, plan or non-public information and, provided further, the Company
may delay such registration or effectiveness for no more than six (6) months and
may not exercise such right more than once in any eighteen (18) month period or
(ii) at any time prior to the effectiveness of any Demand Registration or
Piggy-back Registration the Company determines that it is unable to comply with
the provisions of Article 3 or Article 11 of Regulation S-X under the Securities
Act, to the extent then applicable to the Company. If the Company postpones
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the filing or effectiveness of a Registration Statement pursuant hereto, it will
promptly notify in writing the Holders of Registrable Securities requesting such
registration when the events or circumstances permitting such postponement have
ended and at such time will proceed with the filing of the Registration
Statement if so requested. If the Company postpones the filing or effectiveness
of a Registration Statement filed pursuant hereto, then the Holders of
Registrable Securities demanding such registration will have the right to
withdraw their request for registration by giving written notice to the Company
at any time within five (5) days after the date the Company notifies such
Holders of Registrable Securities of its willingness to proceed with the filing
of the Registration Statement and, if such registration was to be made pursuant
to a Demand Registration, upon such withdrawal the withdrawn demand will not
count as a Demand Registration. The Company may require each Holder of
Registrable Securities covered by the Registration Statement to promptly furnish
in writing to the Company such information regarding the distribution of such
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
registration. Each Holder requesting registration of Registrable Securities
pursuant to Sections 2 or 3 will cooperate with the Company and, if applicable,
the managing Underwriter or Underwriters in providing such information and
executing and delivering such documents as the Company or the managing
Underwriter or Underwriters reasonably request in connection with any such
registration, and the Company will not be obligated to include in any such
registration any Registrable Securities of any Holder who does not so comply.
Each Holder of Registrable Securities covered by a Registration Statement agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Subsection 5(f), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Subsection 5(f), and,
if so directed by the Company, such Holder will deliver to the Company all
copies, other than permanent file copies then in such Holder's possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. If the Company gives such notice, the Company will
extend the period during which such Registration Statement will be maintained
effective (including the period referred to in Subsection 5(b)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Subsection 5(f) to the date when the Company makes available to such
Holder a prospectus supplemented or amended to conform with the requirements of
Subsection 5(f).
6. Registration Expenses.
In connection with any Registration Statement required to be filed
hereunder, the Company will pay the following registration expenses (the
"Registration Expenses"): (i) all registration and filing fees; (ii) fees and
expenses of compliance with securities/blue sky laws (including reasonable fees
and disbursements of counsel in connection with blue sky qualifications (or
exemptions from qualifications of the Registrable Securities); (iii) printing
expenses (including expenses of printing certificates for Registrable
Securities); (iv) internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties); (v) any fees and expenses incurred in connection with the listing of
the Registrable Securities in accordance with the requirements of Subsection
5(o); (vi) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including the costs associated with the delivery by
independent certified public accountants of the comfort letter or comfort
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letters requested pursuant to Subsection 5(i)); (vii) the reasonable fees and
expenses of any special experts or other persons retained by the Company in
connection with such registration; (viii) the expenses associated with obtaining
liability insurance and (ix) messenger, delivery and telephone expenses related
to any registration contemplated hereunder. The Company will not have any
obligation to pay any underwriting fees, discounts, or commissions attributable
to the sale of Registrable Securities, or any out-of-pocket expenses of any
Holder (or the agents who manage such Holder's accounts), which amounts will be
the responsibility of the selling Holder or Holders.
7. Indemnification; Contribution.
(a0 Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder of Registrable Securities covered by a
Registration Statement filed pursuant to this Agreement and, if applicable, such
Holder's directors and officers and each person who controls such Holder within
the meaning of either section 15 of the Securities Act or section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable attorney's fees and legal and other costs of
investigation and defense) (collectively, "Losses") arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or prospectus relating to the Registrable
Securities or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such Losses arise out
of, or are based upon, any such untrue statement or omission or allegation
thereof based upon information furnished in writing to the Company by such
Holder or on such Holder's behalf expressly for use therein; provided, however,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary or final prospectus, the indemnity
agreement contained in this Subsection 7(a) will not apply to the extent that
any such Losses result from the fact that a current copy of the prospectus was
not sent or given to the person asserting any such Losses at or prior to the
written confirmation of the sale of the applicable Registrable Securities to
such person if it is determined that it was the responsibility of such Holder to
provide such person with a current copy of the prospectus and such current copy
of the prospectus would have cured the defect giving rise to such Losses.
(b0 Indemnification by Holders. Each Holder agrees to indemnify and
hold harmless the Company, its directors and officers, and each person, if any,
who controls the Company within the meaning of either section 15 of the
Securities Act or section 20 of the Exchange Act (other than such Holder), from
and against any and all Losses arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus relating to the Registrable Securities of such Holder or
in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only insofar as such Losses arise out of, or are
based upon, any such untrue statement or omission or allegation thereof based
upon information furnished in writing to the Company by such Holder or on such
Holder's behalf, in
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such Holder's capacity as a Holder and not in his capacity as a director or
officer of the Company, if applicable, expressly for use therein; provided,
however, that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary or final prospectus, the indemnity
agreement contained in this Subsection 7(b) will not apply to the extent that
any such Losses result from the fact that a current copy of the prospectus was
not sent or given to the person asserting any such Losses at or prior to the
written confirmation of the sale of the applicable Registrable Securities to
such person if it is determined that it was the responsibility of the Company or
any other person or entity (other than such Holder or such Holder's agent) to
provide such person with a current copy of the prospectus and such current copy
of the prospectus would have cured the defect giving rise to such Losses.
(c0 Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) is brought or asserted
against any person entitled to indemnification under Subsections 7(a) or (b) (an
"Indemnified Party") in respect of which indemnity may be sought from any party
who has agreed to provide such indemnification (an "Indemnifying Party"), the
Indemnified Party will promptly notify the Indemnifying Party in writing, and
the Indemnifying Party will assume the defense thereof, including the employment
of counsel reasonably satisfactory to such Indemnified Party, and will assume
the payment of all expenses related thereto. The Indemnified Party will have the
right to employ separate legal counsel reasonably satisfactory to the
Indemnifying Party in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel will be at the expense of such
Indemnified Party unless (i) the Indemnifying Party agrees to pay such fees and
expenses, (ii) the Indemnifying Party fails to promptly assume the defense of
such action or proceeding and to employ counsel reasonably satisfactory to the
Indemnified Party, (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party has been advised by legal counsel
that there is a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party, or (iv) the Indemnified
Party's counsel has advised the Indemnified Party that there may be defenses
available to the Indemnified Party that are different from or in addition to
those available to the Indemnifying Party and that the Indemnifying Party is not
able to assert on behalf of or in the name of the Indemnified Party (in which
case of either (iii) or (iv), if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate legal counsel at
the expense of the Indemnifying Party, the Indemnifying Party will not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Party); it being understood, however, that the Indemnifying Party
will not, in connection with any one (1) such action or proceeding or separate
but substantially similar or related actions or proceedings arising out of the
same general allegations or circumstances, be liable for the fees and expenses
of more than one (1) separate firm of attorneys (together with any appropriate
local counsel) at any time for all such Indemnified Parties, which firm will be
designated in writing by such Indemnified Parties. The Indemnifying Party will
not be liable for any settlement of any such action or proceeding effected
without its written consent, which consent will not be unreasonably withheld,
but if settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party will
indemnify and hold harmless such
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Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment.
(d0 Contribution. If the indemnification provided for in this
Section 7 is unavailable to the Indemnified Parties in respect of any Losses
(other than by reason of exceptions provided in Subsections 7(a) or (b)) or is
inadequate to hold harmless each Indemnified Party, then each Indemnifying
Party, in lieu of indemnifying such Indemnified Party, will contribute to the
amount paid or payable by such Indemnified Party as a result of such Losses (i)
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, with respect to the statements or omissions which resulted in such Losses,
or action in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as will be appropriate to
reflect the relative benefits received by the Indemnifying Party, on the one
hand, and the Indemnified Party, on the other hand, from the offering of the
securities covered by such Registration Statement. The relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
will be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such party, and such
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The relative benefits received by
the Indemnifying Party on the one hand and the Indemnified Party on the other
will be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions and after deducting
expenses) received by the Indemnifying Party bears to the total proceeds (net of
underwriting discounts and commissions and after deducting expenses) received by
the Indemnified Party. The Indemnifying Party and the Indemnified Party agree
that it would not be just and equitable if contribution pursuant to this
Subsection 7(d) were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in this Subsection 7(d). Notwithstanding the provisions of this
Subsection 7(d), no Holder will be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities of
such Holder were offered to the public pursuant to the applicable Registration
Statement exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of subsection 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e0 Survival. The indemnity and contribution agreements contained in
this Section 7 will remain operative and in full force and effect regardless of
(i) any termination of this Agreement or any underwriting agreement, (ii) any
investigation made by or on behalf of any Indemnified Party, and (iii) the
consummation of the sale or successive resale of the Registrable Securities.
8. Participation in Underwritten Registrations.
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No Holder may participate in any underwritten registration hereunder
unless such Holder (i) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the persons or entities
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
and other documents reasonably required under the terms of such underwriting
arrangements and this Agreement; provided, however, that no such Holder will be
required to make any representations or warranties in connection with any such
registration other than representations and warranties as to (i) such Holder's
ownership of such Holder's Registrable Securities to be sold or transferred free
and clear of all liens, claims and encumbrances, (ii) such Holder's power and
authority to effect such transfer, (iii) such matters pertaining to compliance
by such Holder with securities/blue sky laws as may be reasonably requested and
(iv) any transaction between the Company and the Holder.
9. Special Covenants.
(a0 Rule 144. The Company covenants that it will use its reasonable
best efforts file any reports required to be filed by it under the Securities
Act and the Exchange Act, and it will take such further commercially reasonable
action that any Holder may reasonably request to enable such Holder to sell
Registrable Securities, from time to time, without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
(b0 Form S-3/Form S-2 Availability. The Company covenants that it
will use its reasonable best efforts to timely file all reports required to be
filed by it under the Securities Act and the Exchange Act, and it will take such
other commercially reasonable action as may be necessary and within its control,
to cause the Company to become and/or remain eligible to register on Form S-3 or
Form S-2 (or any successor or similar form that may hereafter be adopted by the
Commission) securities of the same class or series as the Registrable
Securities.
(c0 Limits Regarding Warrants. Notwithstanding anything in this
Agreement to the contrary, (i) no Holder may request registration of any
Registrable Security unless the Warrant pursuant to which such Registrable
Securities are issuable, is exercisable for the number of Registrable Securities
for which registration is requested at, or within 60 days after, the date the
request for registration (or inclusion in a Piggy-back Registration) is
delivered to the Company and (ii) in the event any Holder requests to have any
unissued Registrable Securities which are issuable pursuant to any Warrant
included in a Registration Statement pursuant to this Agreement as permitted
under clause (i) above, the Warrant pursuant to which such Registrable
Securities are issuable must be exercised by such Holder for the number of
Registrable Securities requested to be included in such Registration Statement
upon the later to occur of (A) the effective date of the Registration Statement
in which such Registrable Securities are included or (B) the first date the
Warrant may be exercised for such Registrable Securities.
-15-
<PAGE> 85
10. Miscellaneous.
(a0 Remedies. In addition to being entitled to exercise all rights
provided herein and granted by law, including recovery of damages, each Holder
will be entitled to specific performance of such Holder's rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive that defense in any action for
specific performance.
(b0 Term. The term of this Agreement will terminate on the earlier
to occur of (i) the fifth anniversary of the date hereof or (ii) the first date
on which there are no longer any Registrable Securities issued and outstanding
(the "Term").
(c0 No Inconsistent Agreements. The Company represents and warrants
that has not previously entered into any agreement with respect to its
securities which grants any existing registration rights to any other person or
entity.
(d0 Amendments and Waivers. The provisions of this Agreement may not
be amended, modified, or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of a majority of the then issued and outstanding
Registrable Securities.
(e0 Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to this
Agreement to any other party to this Agreement must be in writing and must be
mailed by first-class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by hand delivery, telegram or facsimile
transmission addressed as follows:
(i0 if to any Warrantholder, at the most current address given
to the Company and thereafter at such other address as may be designated
from time to time by notice given in accordance with the provisions of
this Subsection 10(e), which address initially is set forth on Schedule
10(e)(i) to this Agreement.
(ii0 if to the Company, at its most current address and
thereafter at such other address as may be designated from time to time by
notice given in accordance with the provisions of this Subsection 10(e),
which address initially is:
Genicom Corporation
14800 Conference Center Drive, Suite 400
Chantilly, Virginia 20151
Attention: Secretary
Telecopier: (703) 802-8618
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<PAGE> 86
(iii0 if to any other Holder, at such address set forth on the
Addendum to this Agreement executed and delivered by such Holder pursuant
to Subsection 10(f) or at such other address as may be designated from
time to time by notice given in accordance with the provisions of this
Subsection 10(e).
Any party to this Agreement may designate by written notice a new address to
which any notice, demand, request or communication will thereafter be given,
served or sent. Each notice, demand, request or communication that is mailed,
delivered or transmitted in the manner described above will be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee with the return receipt, the delivery receipt,
the affidavit of messenger or (with respect to a facsimile transmission) the
answer back being deemed conclusive evidence of such delivery or at such time as
delivery is refused by the addressee upon presentation.
(f0 Successors and Assigns. The Company will not assign its rights
or obligations hereunder without the prior written consent of the Holders of a
majority of the then issued and outstanding Registrable Securities. Each Holder
may assign such Holder's respective rights and obligations hereunder to persons
to whom such Holder transfers or otherwise assigns Warrants and/or Registrable
Securities. In the event of any such assignment, such assignees will be entitled
to the rights of the assignor under this Agreement only to the extent such
rights expressly are assigned to such assignee. Any assignment of rights under
this Agreement in violation of the foregoing will be null and void. Subject to
the foregoing, this Agreement will inure to the benefit of and be binding upon
the successors and assigns of the Company and each Holder; provided, however,
that any assignee or transferee of Registrable Securities that is deemed a
Holder under this Agreement will be entitled to the rights and benefits afforded
such person by this Agreement only upon such person's execution and delivery of
an addendum to this Agreement, in form and substance acceptable to the Company,
agreeing to be bound by the duties and obligations of a Holder under this
Agreement. Upon disposition of all Warrants and/or Registrable Securities, a
Holder will no longer be deemed to be a party to this Agreement; provided,
however, such Holder's rights and obligations under Section 7 will continue for
two years following the date of such disposition.
(g0 Counterparts. This Agreement may be executed in a number of
identical counterparts and it will not be necessary for the Company and each
Holder to execute each of such counterparts, but when all parties have executed
and delivered one or more of such counterparts, the several parts, when taken
together, will be deemed to constitute one and the same instrument, enforceable
against each party in accordance with its terms. In making proof of this
Agreement, it will not be necessary to produce or account for more than one such
counterpart executed by the party against whom enforcement of this Agreement is
sought.
(h0 Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(i0 Governing Law. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS
AND DOCUMENTS CONTEMPLATED HEREBY WILL BE
-17-
<PAGE> 87
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
(EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT
PRACTICABLE, BE DEEMED TO CALL FOR PERFORMANCE IN MECKLENBURG COUNTY, NORTH
CAROLINA. COURTS WITHIN THE STATE OF NORTH CAROLINA WILL HAVE JURISDICTION OVER
ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE
JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH DISPUTE, WHETHER IN FEDERAL OR
STATE COURT, WILL BE LAID IN MECKLENBURG COUNTY, NORTH CAROLINA. EACH OF THE
PARTIES HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (II) SUCH PARTY AND/OR
SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR
(III) ANY LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT
FORUM.
(j0 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the Term, such provision will be fully severable; this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement; and the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid, and enforceable.
(k0 Entire Agreement. This Agreement is intended by the Company and
the Holders as a final expression of their agreement and is intended to be a
complete and exclusive statement of their agreement and understanding in respect
of the subject matter contained herein. This agreement supersedes all prior
agreements and understandings between the Company and the Holders with respect
to such subject matter.
(l0 Third Party Beneficiaries. Subject to the terms of Section 7 and
Subsection 10(f) hereof, this Agreement is intended for the benefit of the
Company and the Holders and their respective successors and assigns and is not
for the benefit of, nor may any provision hereof be enforced by, any other
person or entity.
(m0 Attorneys' Fees. In any proceeding brought to enforce any
provision of this Agreement, the successful party will be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
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<PAGE> 88
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 89
IN WITNESS WHEREOF the parties hereto have caused this Registration Rights
Agreement to be duly executed on the date first above written.
GENICOM CORPORATION
By /s/ James Gale
------------------------------------------
Title: Senior Vice President
NATIONSBANK, N.A.
By /s/ Jay T. Wampler
------------------------------------------
Title: Senior Vice President
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
(as successor in interest to
CREDITANSTALT CORPORATE FINANCE, INC.)
By /s/ Andrew J. Russell
------------------------------------------
Title: Vice President
By /s/ Jane Orndahl
------------------------------------------
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management, as Investment
Advisor
By /s/ Scott H. Page
------------------------------------------
Title: Vice President
<PAGE> 90
CRESTAR BANK
By /s/ Jo M. Stewart
------------------------------------------
Title: Senior Vice President
THE RIGGS NATIONAL BANK OF
WASHINGTON, D.C.
By /s/ Alfred J. Serafino
------------------------------------------
Title: Executive Vice President
FLOATING RATE PORTFOLIO
By: Invesco Senior Secured Management,
Inc., as
attorney-in-fact
By /s/ Anne M. McCarthy
------------------------------------------
Title: Authorized Signatory
KZH III LLC
By /s/ James Westerhaus
------------------------------------------
Title: Authorized Agent
TORONTO DOMINION (TEXAS), INC.
By /s/ Sonja R. Jordan
------------------------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Scott H. Page
------------------------------------------
Title: Vice President
<PAGE> 91
BANK OF SCOTLAND
By /s/ Janet Taffe
------------------------------------------
Title: Asst. Vice President
NATIONAL CITY BANK OF KENTUCKY
By /s/ Jerrol Z. Miles
------------------------------------------
Title: Senior Vice President
SCHEDULE 10(e)(i)
INITIAL WARRANTHOLDERS
and
NOTICE ADDRESSES
NationsBank, N.A.
901 Main Street, 66th Floor
Dallas, Texas 75202
Attn: Jay T. Wampler
Facsimile No.: (214) 508-3533
Bank Austria Creditanstalt Corporate Finance, Inc.
Two Greenwich Plaza
Greenwich, Connecticut 06830
Attn: Jane Orndahl
Facsimile No.: (203) 861-6413
Crestar Bank
1445 New York Avenue, N.W., 3rd Floor
Washington, D.C. 20005
Attn: C.B. "Joe" Bohannon
Facsimile No.: (202) 879-6690
Bank of Scotland
111 Riverside Avenue,
Suite 230
Haskell Building
Jacksonville, Florida 32202
Attn: Hugh Van Seaton
Facsimile No.: (904) 353-7833
Floating Rate Portfolio
<PAGE> 92
c/o INVESCO Senior Secured Management, Inc.
1166 Avenue of the Americas
New York, New York 10036-2789
Attn: Anne McCarthy
Facsimile No.: (212) 278-9619
National City Bank of Kentucky
101 S. 5th Street
Louisville, Kentucky 40202
Attn: Jerrol Z. Miles
Facsimile No.: (502) 581-5203
KZH III LLC
c/o Stanfield Capital Partners
330 Madison Ave., 27th Floor
New York, New York 10017
Attn: Timothy Daileader
Facsimile No.: (212) 284-4320
The Riggs National Bank of
Washington, D.C.
808 17th Street N.W.
Washington, D.C. 20006
Attn: J. Jordan O'Neill
Facsimile No.: (202) 835-5977
Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attn: David G. Parker
Facsimile No.: (713) 652-0914
Senior Debt Portfolio
c/o Eaton Vance Management
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
Craig P. Russ
Facsimile No.: (617) 695-9594
Eaton Vance Institutional Senior Loan Fund
c/o Eaton Vance Management
24 Federal Street, 6th Floor
Boston, Massachusetts 02110
Attn: Prime Rate Reserves
<PAGE> 93
Craig P. Russ
Facsimile No.: (617) 695-9594
<PAGE> 1
Exhibit 10.2
AMENDMENT NO. 1 TO COOPERATIVE MARKETING, SUPPORT AND DEVELOPMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Cooperative Marketing,
Support and Development Agreement (the "Cooperative Marketing Agreement") dated
as of August 10, 1997 between Digital Equipment Corporation, a Massachusetts
corporation ("Seller"), and Genicom Corporation, a Delaware corporation
("Purchaser"), is made as of February 27, 1998 between Seller and Purchaser
pursuant to Section 18(a) of the Cooperative Marketing Agreement. All
capitalized terms used herein but not defined herein have the meaning given such
terms in the Cooperative Marketing Agreement.
SECTION 1. Amendment to Cooperative Marketing Agreement. The parties
hereto hereby agree to amend the Cooperative Marketing Agreement as follows:
(a) The first sentence of Section 3(c) shall be deleted in its entirety
and replaced with the following: "Digital acknowledges that during the term of
this Agreement it desires to exclusively source from Genicom Digital Branded
Printers, accessories and consumables pursuant to the terms and conditions
hereof and a Basic Order Agreement of even date herewith between the parties
hereto. The foregoing acknowledgment does not apply to Dual Sourced Products as
defined below."
(b) A new section 3(d) shall be added as follows:
(d) "Dual Sourced Products" are defined as items that are required
to be sold and distributed with printer products, but are also used
in other areas of Digital in addition to the former Digital Printing
Systems Business. Dual Sourced Products include, but are not limited
to, the products listed below:
BC19M-06 Parallel Cable, 6 foot
BC19M-10 Parallel Cable, 10 foot
BN19A-2E Power Cord UK/Ireland
BN19C-2E Power Cord Aust/Belg/Braz/Fin
BN19*-2E Power Cord. Letter in * field indicates type/country
H8575-D Adapter, 25-Pos Male w/EOS/ESD
H8575-E Adapter, 25-PIN X MMJ w/EOS/ESD
H8671-A Adapter, 25 Pin to 6 Pin MMP
H8571-J Adapter, 9 Pin to MMJ Adapter
H8571-L Adapter, 25 Pin to 6 Pin MMJ
LNXXM-AA 4MB Memory Option
LNXXM-AB 8MB Memory Option
LNXXM-AC 16MB Memory Option
LNXXM-AD 32MB Memory Option
<PAGE> 2
Both Digital and Genicom will have full rights to procure, modify,
substitute, market and sell Dual Sourced Products. Both Digital and
Genicom will have independent arrangements with the suppliers of
Dual Sourced Products. They may also, at their option, purchase Dual
Sourced Products from each other. Either party, at its option, may
use alternative items in lieu of selected Dual Sourced Products."
(b) The first sentence of Section 5(xii) shall be deleted in its
entirety and replaced with the following: "Digital shall provide Genicom, at no
cost, office space for Genicom=s sales representatives selling Digital Branded
Printers in those cities in Europe in which Genicom does not have a physical
presence and in which Digital does and has office space available on terms and
conditions similar to those set forth in the Occupancy Agreement of even date
herewith, provided, however, that Digital shall not be obligated to provide such
office space to more than five (5) sales representatives in any city."
SECTION 2. Effect of Amendment. Except for the amendments specifically
provided for herein, which amendments shall be effective as of the original
effective date of the Cooperative Marketing Agreement, the Cooperative Marketing
Agreement is in all respects ratified and confirmed, and all the terms,
conditions and provisions thereof shall be and remain in full force and effect.
For any and all purposes, from and after the date of this Amendment, any and all
references hereafter to the Cooperative Marketing Agreement shall refer to the
Cooperative Marketing Agreement as hereby amended.
SECTION 3. Entire Agreement. The Cooperative Marketing Agreement, as
amended hereby, together with the Asset Purchase Agreement, the Ancillary
Agreements and Schedules and Exhibits thereto, as amended to date, contain the
entire understanding of the parties relating to the subject matter thereof, and
the foregoing cannot be changed or terminated orally and supersede all prior
agreements and understandings relating to the subject matter thereof.
SECTION 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to principles of conflicts of laws.
SECTION 5. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
[The remainder of this page left intentionally blank.]
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the date first above written.
DIGITAL EQUIPMENT CORPORATION
By: /s/ Cindy A. Lewis
----------------------------------------
Title: Senior Attorney
-----------------------------------
GENICOM CORPORATION
By: /s/ Arthur D. Gallo
----------------------------------------
Title: Vice President & General Manager
-------------------------------------
