SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Vanstar Corporation
(Name of Issuer)
Common Stock, $.001 Per Share Par Value
(Title of Class of Securities)
92208M108
(CUSIP Number)
David C. Guenthner
Executive Vice President and Chief Financial Officer
InaCom Corp.
10810 Farnam Drive
Omaha, Nebraska 68154 (402) 758-3900
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 8, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D/A, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) the
following box [ ].
<PAGE>
CUSIP No. 92208M108 Page 2 of 4
1) Names of Reporting Persons
I.R.S. Identification No. of Above Persons:
InaCom Corp. 47-0681813
2) Check the Appropriate Box if a Member of a Group:
(a)
(b)
3) SEC Use Only:
4) Source of Funds:
WC
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e):
6) Citizenship or Place of Organization:
Delaware
Number of Shares (7) Sole Voting Power: 8,871,623
Beneficially (8) Shared Voting Power: 18,544,095
Owned by Each (9) Sole Dispositive Power: 8,871,623
Reporting Person (10) Shared Dispositive Power: 0
With
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
27,415,718
12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares*:
13) Percent of Class Represented by Amount in Row (11)
52.2%
14) Type of Reporting Person (See Instructions):
CO
<PAGE>
CUSIP No. 92208M108 Page 3 of 4
This Amendment No. 1 to Schedule 13D is filed solely to add as Exhibit 5
thereto, the Registration Rights Agreement dated October 8, 1998 between InaCom
Corp. and Warburg, Pincus Capital Company, L.P.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
5. Registration Rights Agreement dated October 8, 1998 between InaCom
Corp. and Warburg, Pincus Capital Company, L.P.
<PAGE>
CUSIP No. 92208M108 Page 4 of 4
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the above information set forth in this Statement is
true, complete and correct.
DATED this 20th day of October, 1998.
INACOM CORP.
/s/ David C. Guenthner
By:_____________________________
David C. Guenthner
Executive Vice President and
Chief Financial Officer
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of October 8, 1998 by and among InaCom Corp., a Delaware corporation
(the "Company"), Warburg, Pincus Capital Company, L.P. ("Stockholder") and
William Y. Tauscher ("Tauscher").
RECITALS
The Stockholder and Tauscher may acquire shares of common stock of the
Company pursuant to a certain Agreement and Plan of Merger dated October 8, 1998
by and between the Company and Vanstar Corporation (the "Merger Agreement").
The parties desire to provide for certain registration rights with respect
to such shares of common stock.
AGREEMENT
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
Common Stock: Common stock $.10 par value, of the Company
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Prospectus: The prospectus included in the Registration Statement, as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
Registration Statement: Any registration statement of the Company which
covers resales of the Shares pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC: The Securities and Exchange Commission.
<PAGE>
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shares: (i) shares of Common Stock acquired by the Stockholder pursuant to
the Merger Agreement and (ii) securities of the Company issued or issuable with
respect to the shares referred to in (i) received by the Stockholder by way of a
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Tauscher Shares: shares of Common Stock acquired by Tauscher pursuant to
the Merger Agreement.
2. Registration.
2.1 Request for Demand Registration. If the Company shall receive from the
Stockholder at any time, a written request (with a copy delivered by the Company
to Tauscher) that the Company file a registration statement ("Registration
Statement") to effect any registration with respect to all or a part of the
Shares in an underwritten public offering of the Shares, the Company will:
(A) as soon as practicable, use its diligent best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations
issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Shares; provided that the Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to
this Section 2.1(A):
(1) In any particular jurisdiction in which
the Company would be required to execute a general consent to service
of process in effecting such registration, qualification or compliance,
unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable rules
or regulations thereunder;
(2) After the Company has effected two (2)
such registrations pursuant to this Section 2.1 (A) and such
registrations have been declared or ordered effective and the sales of
all such Shares shall have closed;
(3) If the Shares requested by the
Stockholder to be registered pursuant to such request are less than 18%
of the Shares acquired by the Stockholder pursuant to the Merger
Agreement;
(4) Prior to the later of (i) the date which
is three months following the date of the closing of the Merger, or
(ii) the date on which the Company has published (within the meaning of
Accounting Series Release No. 135, as amended,
2
<PAGE>
of the SEC) financial results covering at least 30 days of combined
operations of the Company and Vanstar Corporation.
(5) More than once during (i) the first
twelve months following the date of the closing of the Merger, or (ii)
the second twelve months following the date of the closing of the
Merger;
(6) If the Company shall furnish to the
Stockholder a certificate signed by the Chief Executive Officer of the
Company, stating that in the good faith judgment of the Board of
Directors of the Company it would be significantly detrimental to the
Company and its shareholders for such Registration Statement to be
filed and it is therefore essential to defer the filing of such
Registration Statement, the Company shall have the right to defer such
filing for a period of not more than four months after receipt of the
request of the Stockholder; provided, however, that the Company may not
exercise this right more than once in any six-month period; or
(7) If at the time of the Stockholder's
request, the Company is engaged, or has fixed plans to engage within 60
days of the time of such request, in an underwritten public offering of
securities of the Company, if the underwriter advises the Company that
the registration of the Shares for resale pursuant to this Agreement
would interfere with the successful marketing (including pricing) of
the securities of the Company proposed to be sold in such underwritten
offering.
The Registration Statement filed pursuant to the request of
the Stockholder may include the Tauscher Shares if Tauscher elects to
participate as provided in Section 2.2 below.
The Company may elect to use Form S-3, if available to the
Company, to satisfy the registration pursuant to this Section 2.1 if the
managing underwriter of the offering does not believe that the use of such form
will impair the pricing or marketing of the securities to be underwritten.
2.2 Tauscher Participation. Tauscher may elect to include no
less than 50% of the Tauscher Shares in an underwritten offering of the Shares
provided under Section 2.1 above by delivering written notice to the Company and
Stockholder no later than three business days following delivery of the written
request by Stockholder to the Company.
The Tauscher Shares may only be included in the underwriting
to the extent the holder or holders thereof accept the further applicable
provisions of this Section 2.2. Notwithstanding any other provision of this
Section 2.2, if the underwriter advises the Stockholder in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the Shares and the Tauscher Shares shall be excluded on a pro rata
basis from the registration to the extent so required by such limitation.
2.3 Piggyback Registration. If the Company at any time
proposes to register Common Stock under the Securities Act either for its own
account or for the account of other stockholders, other than (A) a registration
relating solely to employee benefit plans, (B) a
3
<PAGE>
registration relating solely to a Commission Rule 145 transaction, (C) a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Shares, or (D) a
"shelf" registration statement pursuant to Rule 415 under the Securities Act
that is filed in accordance with agreements entered into by the Company with
other holders of its equity securities in connection with the Company's
acquisition (by any manner) of any business or any corporation, partnership,
association or other business organization or division thereof, it shall
promptly give written notice to the Stockholder and Tauscher of its intention
and, upon the written request of the Stockholder and/or Tauscher, given within
15 days after delivery of any such notice by the Company to include in such
registration Shares or Tauscher Shares (which requests shall specify the number
of Shares and Tauscher Shares, respectively, proposed to be included in such
registration), the Company shall use its best efforts to cause all such Shares
and/or Tauscher Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, the Company may exclude from registration some or all of the
Shares and Tauscher Shares to the extent the managing underwriter advises the
Company that the inclusion of all of the shares proposed to be included in such
registration would interfere with the successful marketing (including pricing)
of the Common Stock proposed to be registered by the Company. The Company shall
so advise Stockholder and Tauscher of such exclusion of shares and the number of
Shares and Tauscher Shares proposed to be included in such registration shall be
allocated in the following manner: the Common Stock held by officers and
directors shall be excluded from such registration and underwriting to the
extent required by such limitation, and, if a limitation on the number of Shares
and Tauscher Shares is still required, the number of shares that may be included
in the registration and underwriting by the Stockholder, Tauscher and other
stockholders shall be reduced on a pro rata basis, (other than securities held
by other stockholders who by contractual right demanded such registration).
2.4 Shelf Registration. If the Company shall receive a written
request from the Stockholder for the Company to file a registration statement
(the Company may elect to use Form S-3, if available to the Company) for a shelf
registration with respect to a distribution of Shares by the Stockholder to its
limited partners and general partner and resales of the Shares by such limited
partners and general partner pursuant to Rule 415 of the Securities Act, then
the Company shall take reasonable actions to effect one such registration, as
soon as practicable, subject to the reasonable cooperation of the Stockholder,
and its limited partners and general partner. The effectiveness of such
registration statement, if filed, shall be maintained until the first
anniversary of the closing of the Merger. The Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to this
Section 2.4:
(1) In any particular jurisdiction in which the
Company would be required to execute a general consent to
service of process in effecting such registration,
qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or
regulations thereunder; and
(2) Prior to the later of (i) the date which is three
months following the date of the closing of the Merger, or
(ii) the date on which the Company has
4
<PAGE>
published (within the meaning of Accounting Series Release No.
135, as amended, of the SEC) financial results covering at
least 30 days of combined operations of the Company and
Vanstar Corporation.
2.5 Expiration. The Stockholder's registration rights under
Sections 2.1 and 2.3 and Tauscher's registration rights under Sections 2.2 and
2.3 shall expire if, in the opinion of counsel to the Company, all of the Shares
may be sold by the Stockholder under Rule 144 (without giving effect to the
provisions of 144(k)) during any 90-day period.
3. Registration Procedures. If and whenever the Company is
under an obligation pursuant to the provisions of this Agreement to effect the
registration of the Shares, the Company shall:
(a) Before filing the Registration Statement or
Prospectus pursuant to Section 2.1 or any amendments or supplements thereto
(other than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable securities
laws or stock exchange requirements to file) the Company shall furnish to the
Stockholder and Tauscher (if he has elected to participate pursuant to Section
2.2) and their respective counsel, copies of all such documents proposed to be
filed, which documents will be subject to the review of the Stockholder and
Tauscher (if he has elected to participate pursuant to Section 2.2) and their
respective counsel, and the Company shall not file the Registration Statement to
which the Stockholder and Tauscher (if he has elected to participate in the
offering) and their respective counsel shall reasonably object in writing within
two full Business Days. The underwriter who will administer any underwritten
offering of the Shares (and if included, the Tauscher Shares) shall be selected
by InaCom, and for registrations pursuant to Section 2.1 and 2.4, shall be
subject to the consent of the Stockholder (which shall not be unreasonably
withheld).
(b) Use its best efforts to prepare and file with the
SEC such amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement continuously effective
for the applicable period specified in Section 2; cause the related Prospectus
to be supplemented by any required supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of the Shares during the applicable period.
(c) Notify the Stockholder (and Tauscher, if he has
elected to participate pursuant to Section 2.2) (i) when the Prospectus or the
Registration Statement has been filed with the SEC, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Shares for sale in any
jurisdiction or
5
<PAGE>
the initiation or threatening of any proceeding for such purpose, (v) of the
existence of any fact or happening of any event which makes any statement of a
material fact in the Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue or which
would require the making of any changes in the Registration Statement or
Prospectus in order that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi) of the
Company's determination that a post-effective amendment to the Registration
Statement would be appropriate.
(d) Make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement , or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Shares for sale in any jurisdiction, as
promptly as practicable.
(e) Furnish to the Stockholder and its counsel (and
Tauscher and his counsel, if he has elected to participate pursuant to Section
2.2), without charge, and when filed one conformed copy each of the Registration
Statement and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by the
Stockholder or Tauscher).
(f) Deliver to the Stockholder and underwriter (and
Tauscher, if he has elected to participate in the underwritten offering),
without charge, as many copies of the Prospectus (including a preliminary
prospectus, if any) and any amendment or supplement thereto as reasonably
requested; and the Company hereby consents to the use of such Prospectus or each
amendment or supplement thereto by the Stockholder and the underwriter in
connection with the offering and sale of the Shares in the manner described in
the Prospectus.
(g) Prior to any public offering of Shares or the
Tauscher Shares, use its best efforts to register or qualify or cooperate with
the Stockholder in connection with the registration or qualification (or
exemption from such registration or qualification) of the Shares and the
Tauscher Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as the Stockholder (or Tauscher if he
elects to participate pursuant to Section 2.2) or the underwriter reasonably
request in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period the Registration Statement is required to
be kept effective and do any and all other acts or things necessary or advisable
to enable the disposition of the Shares in such jurisdictions, provided, that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
6
<PAGE>
(h) Use its best efforts to cause the Shares to be
registered with or approved by such other governmental agencies or authorities
within the United States, as may be necessary to enable the Stockholder and
Tauscher to consummate the disposition of the Shares, subject to the proviso
contained in (g) above.
(i) Immediately upon the existence of any fact or the
occurrence of any event as a result of which the Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or a Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, promptly prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Shares and Tauscher Shares being
sold thereunder, and, in the case of a post-effective amendment to the
Registration Statement, use its best efforts to cause it to become effective as
soon as practicable.
(j) Enter into an underwriting agreement in form,
scope and substance as is customary in underwritten offerings and take all such
other actions in connection therewith (including, those reasonably requested by
the underwriter) in order to expedite or facilitate the disposition of the
Shares and Tauscher Shares and in such connection, (i) make such representations
and warranties, subject to the Company's ability to do so, to the Stockholder
(and Tauscher if he elects to participate pursuant to Section 2.2) and the
underwriter with respect to the business of the Company and its subsidiaries,
the Registration Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference, if any, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) use its best efforts
to obtain the opinion of counsel to the Company, which counsel and opinions (in
form, scope and substance) shall be addressed to the underwriter covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriter; (iii) use
its best efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other certified public accountants of any subsidiary of the Company or any
business acquired or to be acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriter, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; and (iv) deliver
such documents and certificates as may be reasonably requested by the
Stockholder (and Tauscher if he elects to participate pursuant to Section 2.2)
and the underwriter to evidence the continued validity of the
7
<PAGE>
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement entered into by the Company.
(k) If requested in connection with a disposition of
Shares or the Tauscher Shares pursuant to the Registration Statement, make
available for inspection by the Stockholder (and Tauscher if he elects to
participate pursuant to Section 2.2) and the underwriter and any attorney or
accountant retained by the Stockholder (and Tauscher if he elects to participate
pursuant to Section 2.2) or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the executive officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
disposition; subject to reasonable assurances by each such person that such
information will only be used in connection with matters relating to the
Registration Statement.
(l) Comply with all applicable rules and regulations
of the SEC and make generally available to its security holders earning
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year), commencing on the first day of the first fiscal quarter of
the Company commencing after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(m) Cooperate with the Stockholder (and Tauscher if
he elects to participate pursuant to Section 2.2) to facilitate the timely
preparation and delivery of certificates representing the Shares to be sold and
not bearing any restrictive legends; and enable such Shares to be in such
denominations and registered in such names as the Stockholder may request.
4. Stockholder's and Tauscher's Obligations.
4.1 Stockholder Information. The Stockholder agrees to
promptly after the Company's reasonable request, furnish such information
regarding the Stockholder and the distribution of the Shares as may be required
to be included in the Registration Statement or the Prospectus as the Company
may reasonably request. The Stockholder further agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company not misleading. Any sale of any
Shares by the Stockholder shall constitute a representation and warranty by the
Stockholder that the information relating to the Stockholder and its plan of
distribution is as set forth in the Prospectus delivered by the Stockholder in
connection with such disposition, that such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to the
Stockholder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to the
Stockholder or its plan of distribution necessary to make the statements in such
Prospectus, in light of the circumstances under which they were made, not
misleading.
8
<PAGE>
4.2 Tauscher Information. Tauscher agrees, if he elects to
participate in the underwritten public offering of the Shares, to promptly after
the Company's reasonable request, furnish such information regarding Tauscher
and the distribution of the Tauscher Shares as may be required to be included in
the Registration Statement or the Prospectus as the Company may reasonably
request. Tauscher further agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company not misleading. Any sale of the Tauscher Shares by
Tauscher shall constitute a representation and warranty by Tauscher that the
information relating to Tauscher and the plan of distribution as it relates to
the Tauscher Shares is as set forth in the Prospectus delivered by Tauscher in
connection with such disposition, that such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to
Tauscher or the plan of distribution as it relates to the Tauscher Shares and
that such Prospectus does not as of the time of such sale omit to state any
material fact relating to Tauscher or it plan of distribution necessary to make
the statements in such Prospectus, in light of the circumstances under which
they were made, not misleading.
4.3 Holdback. If the Company at any time shall register
securities for sale to the public in an underwritten offering, upon written
notice by the Company and the underwriter (and provided that the Company's
directors and executive officers are also subject to the following hold back),
the Stockholder shall not sell publicly, make any short sale of, grant any
option to the purchase of, or otherwise dispose publicly of, any Shares without
the prior written consent of the Company (which consent shall not be
unreasonably withheld) for a period designated by the Company in writing to the
Stockholder, which period shall not begin more than ten days prior to the
effectiveness of the Registration Statement pursuant to which such underwritten
public offering shall be made and shall not last more than 120 days after the
effective date of such Registration Statement. The Stockholder agrees not to
distribute Shares to the general partner, unless such general partner agrees to
be bound by this provision provided, that if the holdback is requested by the
Company during any time the shelf Registration Statement is effective pursuant
to Section 2.4, the effectiveness of such Registration Statement with respect to
the general partner shall be maintained beyond the first anniversary of the
Merger by the length of time of the holdback.
4.4 Stockholder/Tauscher. Notwithstanding anything herein, (i)
Tauscher shall not be responsible for, and his rights hereunder shall not be
affected by, the performance or nonperformance of Stockholder's obligations
hereunder and (ii) Stockholder shall not be responsible for, and Stockholder's
rights hereunder shall not be affected by, the performance or nonperformance of
Tauscher's obligations hereunder.
5. Registration Expenses. All fees and expenses incident to or
incurred by the Company's in performance of or compliance with this Agreement
shall be borne by the Company whether or not the Registration Statement becomes
effective. Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
of compliance with federal securities or Blue Sky laws), (ii) printing expenses,
(iii) fees and disbursements of counsel for the Company, (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 3(j)(iii) hereof (including the expenses of any special audit and "cold
comfort" letters required by or incident to such
9
<PAGE>
performance) and (v) fees and expenses for counsel to the Stockholder in a
amount not to exceed $10,000. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, the Stockholder and Tauscher shall pay all of
their respective underwriting discounts, concessions and commissions with
respect to the Shares or Tauscher Shares, and, to the extent not provided for in
this Section 5, fees and expenses of their counsel.
6. Indemnification.
(a) Indemnification by the Company. (i) The Company
shall indemnify and hold harmless the Stockholder, its directors, officers,
employees, agents or affiliates and each person, if any, who controls the
Stockholder (within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act) if he elects to participate in the
underwritten offering of the Shares, from and against all losses, liabilities,
claims, damages (or actions or proceedings whether commenced or threatened) and
expenses (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus 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 the information relating to the
Stockholder furnished to the Company in writing by the Stockholder expressly for
use therein; provided, that the Company shall not be liable to the Stockholder
(or any person controlling the Stockholder) to the extent that any such Losses
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if either
(A)(i) subject to the Company's compliance with Section 3(f) hereof, the
Stockholder failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by the Stockholder to the
person asserting the claim from which such Losses arise and (ii) the Prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (B)(x) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, the Stockholder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written confirmation
of the sale of the Shares to the person asserting the claim from which such
Losses arise. The Company shall also indemnify the underwriter and each person
who controls such person (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act) to the same extent and with the same
limitations as provided above with respect to the indemnification of the
Stockholder.
10
<PAGE>
(ii) The Company shall indemnify and hold harmless
Tauscher, if he elects pursuant to Section 2.2 to participate in the
underwritten public offering, from and against all Losses arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus 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 the information
relating to Tauscher furnished to the Company in writing by Tauscher expressly
for use therein; provided, that the Company shall not be liable to Tauscher to
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A)(i) subject to the Compliance with
Section 3(f) hereof, Tauscher failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by Tauscher to
the person asserting the claim from which such Losses arise and (ii) the
Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (B)(x) such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, Tauscher thereafter fails to deliver such Prospectus as
so amended or supplemented, with or prior to the delivery of written
confirmation of the sale of the Shares to the person asserting the claim from
which such Losses arise. The Company shall also indemnify the underwriter and
each person who controls such person (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to the same extent and with
the same limitations as provided above with respect to the indemnification of
Tauscher.
(b) Indemnification by the Stockholder and Tauscher.
(i) The Stockholder agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, 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), from and against all Losses
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary prospectus or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information relating to the Stockholder so furnished in writing
by the Stockholder to the Company expressly for use in such Registration
Statement or Prospectus of preliminary prospectus.
(ii) Tauscher agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
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), from and
against all Losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information relating to Tauscher so
11
<PAGE>
furnished in writing by Tauscher to the Company expressly for use in such
Registration Statement or Prospectus of preliminary prospectus.
(c) Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one firm (in addition to
any local counsel) for the Stockholder, Tauscher and all persons, if any, who
control the Stockholder or Tauscher within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, and (b) the fees and
expenses of more than one firm (in addition to any local counsel) for the
Company, its directors, its officers who sign a Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this
Section 6(f) is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
12
<PAGE>
considerations. The relative fault of the indemnifying party and of the
indemnified party shall 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 the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The foregoing indemnity agreement of the parties
is subject to the condition that, insofar as they relate to any loss, claim
liability or damage made in a preliminary prospectus but eliminated or remedied
in the amended prospectus or file with the Commission at the time the
Registration Statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity or contribution agreement shall not inure to the
benefit of any underwriter or Stockholder or Tauscher if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
7. Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(iii) so long as the Stockholder owns any Shares, furnish to
the Stockholder upon request, a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, a copy of
the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as the Stockholder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing the Stockholder to sell any such securities without
registration.
8. Miscellaneous.
(a) No Conflicting Agreements. The Company has not,
as of the date hereof, and shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which conflicts with the
rights granted to the Stockholder of Shares in this Agreement. The Company
represents and warrants that the rights granted to the Stockholder hereunder do
not in any way conflict with the rights granted to the stockholders of the
Company's securities under any other agreements.
13
<PAGE>
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, except by written consent of the parties.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be deemed
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(a) if to the Stockholder, to:
Warburg, Pincus Capital Company, L.P.
466 Lexington Avenue
New York, NY 10017
Attention: William Janeway
and Stewart Gross
Fax No: 212-878-9200
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
Attention: Jack H. Nusbaum, Esq.
Fax No: 212-728-8111
(b) if to Tauscher, to:
William Y. Tauscher
c/o Vanstar Corporation
1100 Abernathy Road
Building 500, Suite 1200
Atlanta, Georgia 30328
Fax: (770) 522-4587
with a copy to:
Arter & Hadden, LLP
1717 Main Street, Suite 4100
Dallas, Texas 75201-4605
Attention: Stan Huller
Fax: (214) 741-7139
14
<PAGE>
(c) if to the Company, to:
InaCom Corp.
10810 Farnam Drive
Omaha, NE 68154
Attention: Chief Financial Officer
Telecopy No.: (402) 758-3619
with a copy to:
McGrath, North, Mullin & Kratz, P.C.
1400 One Central Park Plaza
Omaha, NE 68102
Attention: David L. Hefflinger
Telecopy No.: (402) 341-0216
or to such other address as such person may have furnished to the other persons
identified in this Section 8(d) in writing in accordance herewith.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, provided, that the Stockholder may not assign its registration
rights hereunder without the written consent of the Company which consent cannot
be unreasonably withheld.
(e) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed
15
<PAGE>
the remaining terms, provisions, covenants and restrictions without including
any of such which may be hereafter declared invalid, illegal, void or
unenforceable.
(i) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company to the Stockholder. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
(j) Further Assurances. Each of the parties hereto
shall use all best efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary, proper or
advisable under applicable law, and execute and deliver such documents and other
papers, as may be required to carry out the provisions of this Agreement and the
other documents contemplated hereby and consummate and make effective the
transactions contemplated hereby.
16
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INACOM CORP.
/s/ Bill L. Fairfield
By:
Name: Bill L. Fairfield
Title: President and Chief
Executive Officer
Accepted as of the date first above written:
WARBURG, PINCUS CAPITAL COMPANY, L.P.
By: Warburg, Pincus & Co.,
its general partner
/s/ S. Gross
By:____________________________
General Partner
Accepted as of the date first above written:
/s/ William Y. Tauscher
___________________________________
William Y. Tauscher
<PAGE>
<PAGE>
