<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____ )*
Alliance Entertainment Corp.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.0001 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
018593103
- --------------------------------------------------------------------------------
(CUSIP Number)
Mr. James T. Byrne, Jr. Office of the Secretary
Bankers Trust New York Corporation,
280 Park Avenue, New York, NY 10017
Tel. (212) 250-1869
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications
June 3, 1996*
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ X*].
Check the following box if a fee is being paid with this statement [ X ]. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
__________________
*See Item 1.
Exhibit Index on Page 17.
Page 1
<PAGE>
SCHEDULE 13D
- --------------------------------------------------------------------------------
CUSIP NO. 018593103
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bankers Trust New York Corporation
EIN No. 13-6180473
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC, BK (See Item 3)
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E)
[ X ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBERS OF 7. SOLE VOTING POWER
SHARES 0*
BENEFICIALLY _______________________________________________
OWNED BY EACH
REPORTING 8. SHARED VOTING POWER
PERSON WITH 0
_______________________________________________
9. SOLE DISPOSITIVE POWER
0*
_______________________________________________
10. SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0*
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0*
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
BT Capital Partners, Inc. is an indirect wholly-owned subsidiary of Bankers
Trust New York Corporation. Bankers Trust Company is a direct wholly-owned
subsidiary of Bankers Trust New York Corporation. As a result, Bankers Trust New
York Corporation may be deemed to be the indirect beneficial owner of the shares
of Common Stock owned by BT Capital Partners, Inc. and Bankers Trust Company.
Page 2
<PAGE>
SCHEDULE 13D
- --------------------------------------------------------------------------------
CUSIP NO. 018593103
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bankers Trust Company
EIN No. 13-4941247
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO (See Item 3)
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E)
[ X ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------------------------------------------------------------------
NUMBERS OF 7. SOLE VOTING POWER
SHARES 71,300
BENEFICIALLY _______________________________________________
OWNED BY EACH
REPORTING 8. SHARED VOTING POWER
PERSON WITH 0
_______________________________________________
9. SOLE DISPOSITIVE POWER
71,300
_______________________________________________
10. SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
71,300
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
BK, IA
- --------------------------------------------------------------------------------
Page 3
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, par value $.0001 per
share ("Common Stock"), of Alliance Entertainment Corp. (the "Issuer"), whose
------------ ------
principal executive offices are at 110 East 59th Street, 18th Floor, New
York, New York 10022.
This statement relates in part to shares of Common Stock, certain
shares of which were acquired by the filing persons hereto in a registered
offering of Common Stock under an amended registration statement filed by the
Issuer's predecessor, Trinity Capital Opportunity Corp., on October 27, 1993
(Registration No. 33-68816) (the "Offering") under the Securities Act of
--------
1933, as amended. Pursuant to Rule 13d-1(c), such acquisition was reported
on a statement on Schedule 13G filed on February 11, 1994 by BTNY and the
predecessor of BT Capital Partners (as defined in Item 2). The event
requiring filing of this statement on Schedule 13D is the acquisition of an
additional 1% of the outstanding shares of Common Stock through open market
transactions.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2(a) through (c), Item 2(f).
--------------------------------
This statement is being filed by (i) BT Capital Partners, Inc. a
Delaware corporation ("BT Capital Partners"), with respect to shares of
-------------------
Common Stock beneficially owned by it as principal and (ii) Bankers Trust
Company, a New York banking corporation ("BTCo."), with respect to shares of
-----
Common Stock beneficially held as fiduciary on behalf of its customers and
(iii) Bankers Trust New York Corporation, a New York corporation ("BTNY").
----
BTCo. is a wholly owned subsidiary of BTNY. BT Capital Partners is an
indirect wholly owned subsidiary of BTNY, through BTNY's subsidiary, BT
Holdings (New York), Inc., a Delaware corporation. Each of BT Capital
Partners and BTCo. is referred to from time to time as a "Purchaser".
Attached hereto as Exhibit 1 is a chart showing the ownership relationship
between BTNY and the Purchasers.
The principal business of BT Capital Partners is as acting as a
small business investment company licensed by the Small Business
Administration under the Small Business Investment Act of 1958, as amended,
investing in management buyouts, venture capital opportunities and mezzanine
financing. The principal business of BTCo. is as a bank. The principal
business of BT Holdings is as a holding company. The principal business of
BTNY is as a bank holding company.
The address of the principal business and principal office of BT
Capital Partners is 130 Liberty Street, 25th Floor, New York, New York
10006. The address of the principal business and principal office of BTCo.,
BT Holdings and BTNY is 280 Park Avenue, New York, New York 10017.
The name, citizenship, business or residence address, principal
occupation or employment, and name, principal business and address of any
corporation or organization in
Page 4
<PAGE>
which such employment is conducted of each director and executive officer of
each Purchaser and BTNY is set forth in Annex A attached hereto and
incorporated into this Item 2 by reference.
Items 2(d) and (3).
------------------
Except as disclosed in Annex B hereto, neither of the Purchasers,
BTNY, nor, to their best knowledge or belief, BT Holdings, or any of the
persons identified in Annex A, have during the past five years been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
BT Capital Partners acquired 2,974,937 shares of Common Stock in
the Offering through an exchange of stock at a cost of $6,000,759.00. Any
funds used in this acquisition came from working capital and from a $50
million line of credit from BTNY. The amount of funds used by BT Capital
Partners to acquire the remaining 1,000,000 shares in the open market as
reported herein was $5,916,197.30. The source of funds for the acquisition
of these shares was from the line of credit referred to above.
BTCo. acquired the 71,300 shares of Common Stock reported herein on
behalf of its customers, using customer funds.
ITEM 4. PURPOSE OF TRANSACTION.
The Purchasers have acquired the shares of Common Stock reported
herein for investment purposes. BT Capital Partners is currently evaluating
whether to increase its investment in the Issuer and may in its sole
discretion do so, either through negotiated transactions or through
transactions in the open market. In addition, either Purchaser may
generally from time to time and in its sole discretion acquire or dispose of
shares of Common Stock and other securities of the Issuer, either through
negotiated transactions or through transactions in the open market.
Other than as described in the foregoing, the Purchasers and BTNY
have no present plans or proposals which relate to or would result in the
events described in Item 4 of Schedule 13D.
Page 5
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) BT Capital Partners beneficially owns 3,974,937 shares of
Common Stock (of which 407,903 shares are the subject of warrants),
constituting 10.8% of the issued and outstanding shares of Common Stock of
the Issuer./1/
BTCo. beneficially owns 71,300 shares of Common Stock as fiduciary
on behalf of its customers, constituting 0.2% of the issued and outstanding
shares of Common Stock of the Issuer.
As a parent of each of the Purchasers, Bankers Trust New York
Corporation may be deemed to be the indirect beneficial owner of the shares
of Common Stock owned by the Purchasers.
To the best knowledge and belief of the Purchasers, and BTNY none
of the persons listed on Annex A hereto beneficially owns any shares of
Common Stock.
(b) Each Purchaser has sole power to vote and dispose of the shares
of Common Stock beneficially owned by it.
(c) Annex C hereto sets forth all transactions in shares of Common
Stock that were effected during the past sixty days by the persons referred
to in paragraph (a).
(d) The customers on whose behalf BTCo. holds the shares of Common
Stock reported herein have the right to receive the dividends from, or the
proceeds from the sale of, such shares of Common Stock. Otherwise, no person
other than the persons described in paragraph (a) has the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the
sale of, the Common Stock beneficially owned by it.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Certain of the shares of Common Stock reported herein were acquired
by the Purchasers in the Offering under an amended registration statement
filed by the Issuer's predecessor, Trinity Capital Opportunity Corp., on
October 27, 1993 (Registration No. 33-68816), as more specifically identified
in Item 7.
The shares of Common Stock held by BT Capital Partners are subject
to the terms of a Restated Stockholders Agreement dated as of November 30,
1993 (the "Stockholders Agreement"). Under the Stockholders Agreement, BT
Capital Partners is subject to certain restrictions on the transfer of Common
Stock held by it and has certain co-sale rights and registration rights with
respect to such Common Stock. As a party to the Stockholders Agreement, BT
Capital Partners might be considered to be a member of a group together with
the other parties to the Stockholder Agreement. However, BT Capital Partners
disclaims membership in any such group and disclaims beneficial ownership of
the shares of Common
- ----------
/1/After giving effect to the exercise of the warrants. Percentages used in
this Item 5 are based on the number of securities outstanding as contained in
the most recently available filing by the Issuer with the Securities and
Exchange Commission.
Page 6
<PAGE>
Stock owned by the other parties to the Stockholders Agreement. The
Stockholders Agreement is filed as an exhibit hereto and is hereby
incorporated by reference in its entirety.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Corporate Structure of BTNY and Certain Subsidiaries.
2. Joint filing statement pursuant to Rule 13d-1(f)(1).
3. Amendment No.2 on Form S-1 to Registration Statement on Form S-4,
relating to the Common Stock and filed by the Issuer's predecessor,
Trinity Capital Opportunity Corp., with the Commission on October
27, 1993 (Registration No. 33-68816), together with all exhibits
thereto, is hereby incorporated by reference as an exhibit to this
statement, pursuant to Rule 12b-32 under the Securities Exchange
Act of 1934, as amended.
4. Restated Stockholders Agreement dated as of November 30, 1993 among
Alliance Entertainment Corp. and certain stockholders, option and
warrant holders party thereto.
Page 7
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: June 14, 1996
Signature: BANKERS TRUST NEW YORK CORPORATION
By: /s/ James T. Bynre
____________________________________
Name: James T. Byrne
Title: Senior Vice President
Page 8
<PAGE>
ANNEX A
BANKERS TRUST NEW YORK CORPORATION
BANKERS TRUST COMPANY
The following sets forth the name, mailing address, occupation or
principal business affiliation and citizenship of each director and executive
officer of BTNY. Unless otherwise indicated, each individual listed below is
also a director or executive officer of BTCo. To the best knowledge and
belief of BTNY and BTCo., none of the following persons beneficially owns any
shares of Common Stock.
<TABLE>
<CAPTION>
Occupation or Principal
Name and Mail Address Business Affiliation Citizenship
- --------------------- -------------------- ------------
<S> <C> <C>
George B. Beitzel Retired Senior Vice President and U.S.
29 King Street Director
Chappaqua, NY 10514-3432 International Business Machines
Corporation
Phillip A. Griffiths Chairman U.S.
Institute for Advanced Study Institute for Advanced Study
Olden Lane
Princeton, NJ 08540
William R. Howell Chairman of the Board U.S.
J.C. Penney Company, Inc. J.C. Penney Company, Inc.
P.O. Box 10001
Dallas, TX 75301-0001
Jon M. Huntsman Chairman and Chief Executive Officer U.S.
Huntsman Corporation Huntsman Chemical Corporation
500 Huntsman Way
Salt Lake City, UT 84108
Vernon E. Jordan, Jr. Senior Partner U.S.
Akin, Gump, Strauss, Hauer & Akin, Gump, Strauss, Hauer & Feld, LLP
Feld, LLP
1333 New Hampshire Avenue, N.W.
Suite 400
Washington D.C. 20036
Hamish Maxwell Retired Chairman and Chief U.S.
Philip Morris Companies, Inc. Executive
100 Park Avenue Officer
New York, NY 10017 Philip Morris Companies Inc.
</TABLE>
Page 9
<PAGE>
<TABLE>
<S> <C> <C>
Frank N. Newman Chairman of the Board and Chief U.S.
Bankers Trust Company Executive Officer and President
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Chairman of the Board and Chief
Executive Officer and President
Bankers Trust New York Corporation
N.J. Nicholas Jr. Investor U.S.
15 West 53rd Street, #34F
New York, NY 10019
Russell E. Palmer Chairman and Chief Executive Officer U.S.
The Palmer Group The Palmer Group
3600 Market Street
Suite 530
Philadelphia, PA 19104
Patricia Carry Stewart Former Vice President U.S.
Bankers Trust Company The Edna McConnell Clark
c/o Office of the Secretary Foundation
130 Liberty Street
New York, NY 10006
George J. Vojta Vice Chairman U.S.
Bankers Trust Company Bankers Trust Company and
130 Liberty Street Bankers Trust New York Corporation
New York, NY 10006
------------------------------------
EXECUTIVE OFFICERS
------------------------------------
Geoffrey M. Fletcher Managing Director and Principal U.S.
Bankers Trust Company Accounting Officer
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Senior Vice President and Principal
Accounting Officer
Bankers Trust New York Corporation
Joseph A. Manganello, Jr. Managing Director and Chief Credit U.S.
Bankers Trust Company Officer
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Executive Vice President and Chief
Credit Officer
Bankers Trust New York Corporation
</TABLE>
Page 10
<PAGE>
<TABLE>
<S> <C> <C>
Richard H. Daniel Managing Director, Chief Financial U.S.
Bankers Trust Company Officer and Controller
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Executive Vice President, Chief
Financial Officer and Controller
Bankers Trust New York Corporation
Melvin A. Yellin Managing Director and General U.S.
Bankers Trust Company Counsel
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Executive Vice President and
General
Counsel
Bankers Trust New York Corporation
Mark Bieler Managing Director U.S.
Bankers Trust Company Bankers Trust Company;
130 Liberty Street Executive Vice President
New York, NY 10006 Bankers Trust New York Corporation
Yves De Balmann Chairman U.S., France
Bankers Trust Company Bankers Trust International PLC;
1 Appold Street Managing Director
Broadgate, 4th Floor Bankers Trust Company;
London, EC2A 2HE Senior Vice President
Bankers Trust New York Corporation
R. Kelly Doherty Managing Director U.S.
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Senior Vice President
Bankers Trust New York Corporation
Robert A. Ferguson Executive Vice President Australia
Bankers Trust Australia Limited Bankers Trust Australia Limited;
Level 15, The Chifley Tower Managing Director
2 Chifley Square Bankers Trust Company;
Sydney, N.S.W. 2000 Senior Vice President
Australia Bankers Trust New York Corporation
Alexander P. Frick Managing Director U.S.
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Senior Vice President
Bankers Trust New York Corporation
B.J. Kingdon Managing Director U.S.
130 Liberty Street Bankers Trust Company;
New York, NY 10006 Senior Vice President
Bankers Trust New York Corporation
</TABLE>
Page 11
<PAGE>
<TABLE>
<S> <C> <C>
Ian Martin Executive Vice President Australia
Bankers Trust Australia Limited Bankers Trust Australia Limited;
Level 15, The Chifley Tower Senior Vice President
2 Chifley Square Bankers Trust New York Corporation
Sydney, N.S.W. 2000
Australia
Rodney A. McLauchlan Managing Director U.S.
BT Securities Corporation BT Securities Corporation;
130 Liberty Street Senior Vice President
New York, NY 10006 Bankers Trust New York Corporation
Timothy S. Rattray Managing Director U.S.
Bankers Trust Company Bankers Trust Company
Two Pacific Place Senior Vice President
36th Floor Bankers Trust New York Corporation
88 Queensway
Hong Kong
J. Edward Virtue Managing Director U.S.
BT Securities Corporation BT Securities Corporation
130 Liberty Street Senior Vice President
New York, NY 10006 Bankers Trust New York Corporation
</TABLE>
Page 12
<PAGE>
BT CAPITAL PARTNERS, INC.
The following sets forth the name, mailing address, occupation or
principal business affiliation and citizenship of each director and executive
officer of BT Capital Partners. To the best knowledge and belief of BT
Capital Partners and BTCo., none of the following persons beneficially owns
any shares of Common Stock.
<TABLE>
<CAPTION>
Occupation or Principal
Name and Mail Address Business Affiliation Citizenship
- --------------------- -------------------- -----------
<S> <C> <C>
DIRECTORS
---------
Douglas Brent President Canada
BT Capital Partners, Inc. BT Capital Partners, Inc.
130 Liberty Street
New York, NY 10006
Carl Mueller Chairman U.S.
c/o Bankers Trust Company BT Capital Partners, Inc.
280 Park Avenue
New York, NY 10006
Alfred Brittain, III Former Chairman U.S.
c/o Bankers Trust Company Bankers Trust New York Corporation
280 Park Avenue
New York, NY 10006
Howard Blauvelt Former CEO of Conoco Oil U.S.
1410 Piper Way
Keswick, VA 22947
George Vojta Vice Chairman U.S.
Bankers Trust Company Bankers Trust New York Corporation
130 Liberty Street
New York, NY 1006
Patrick Callahan, Jr. Partner, Lazard Freres & Co. U.S.
Lazard Freres & Co.
200 W. Madison
Chicago, IL 60606
Larry Williams President U.S.
945 East Paces Ferry Road The Breckenridge Group, Inc.
Atlanta, GA 30326
</TABLE>
Page 13
<PAGE>
<TABLE>
<S> <C> <C>
James Hellmuth Former President U.S.
270 Park Avenue, 5th Floor BT Capital Corporation
New York, NY 10006
Hamish Maxwell Former Chairman U.S.
Philip Morris Co. Philip Morris & Companies
100 Park Avenue
10th Floor
New York, NY 10017
Yves De Balmann Chairman France
1 Appold Street Bankers Trust International
Broadgate, 4th Floor
London, EC2A 2HE
OFFICERS
--------
Heide Silverstein Treasurer/Secretary U.S.
Bankers Trust Company
130 Liberty Street, 25th Floor
New York, NY 10006
Joseph T. Wood Senior Vice President U.S.
BT Capital Partners, Inc. Bankers Trust New York
130 Liberty Street, 25th Floor Corporation;
New York, NY 10006 Officer
BT Capital Partners, Inc.
</TABLE>
Page 14
<PAGE>
ANNEX B
BTCo., BTNY and BTNY's subsidiary, BT Securities Corporation are
subject to a Written Agreement, dated December 4, 1994 (the "Written
Agreement"), with the Federal Reserve Bank of New York and a Memorandum of
Understanding, dated December 21, 1994 (the "Memorandum"), with the New York
State Banking Department. The Written Agreement and Memorandum are described
in BTNY's Forms 8-K, dated December 4, 1994 and January 19, 1994,
respectively. These Forms 8-K are hereby incorporated by reference into this
Annex B.
BT Securities is also subject to an Order, dated December 22, 1994,
of the Securities and Exchange Commission and an Order dated December 22,
1994, of the Commodity Futures Trading Commission. These Orders are included
in and described in BTNY's Form 8-K, dated December 22, 1994. This Form 8-K
is hereby incorporated by reference into this Annex B.
Page 15
<PAGE>
ANNEX C
Except as set forth below, neither BT Capital Partners, BTCo., BTNY
nor, to the best of their knowledge, any of the persons referred to Item 5,
paragraph (a) had any transactions in shares of Common Stock within the last
60 days.
<TABLE>
<CAPTION>
PRICE PER
IDENTITY TRADE DATE TRANSACTION QUANTITY SHARE
-------- ---------- ----------- -------- ---------
<S> <C> <C> <C> <C>
BT Capital 05/31/96 Purchase 250,000 $5.7500
Partners
05/31/96 " " 105,400 $5.8745
06/03/96 " " 30,000 $5.8750
06/04/96 " " 450,000 $6.0000
06/05/96 " " 50,000 $6.0000
06/05/96 " " 25,000 $5.8750
06/06/96 " " 80,000 $6.0000
06/06/96 " " 9,600 $5.8750
</TABLE>
Page 16
<PAGE>
EXHIBIT INDEX
DOCUMENT
- --------
1. Corporate Structure of BTNY and Certain Subsidiaries.
2. Joint filing statement pursuant to Rule 13d-1(f)(1).
3. Amendment No.2 on Form S-1 to Registration Statement on
Form S-4, relating to the Common Stock and filed by the
Issuer's predecessor, Trinity Capital Opportunity Corp.,
with the Commission on October 27, 1993 (Registration No.
33-68816), together with all exhibits thereto (incorporated
by reference in Item 7).
4. Restated Stockholders Agreement dated as of November 30, 1993
among Alliance Entertainment Corp. and certain stockholders,
option and warrant holders party thereto.
Page 17
<PAGE>
EXHIBIT 1
BT Capital Partners classified as a corporation and is an indirect
subsidiary of Bankers Trust New York Corporation, which is classified as a
holding company. The chain of ownership from Bankers Trust New York Corporation
to the Purchasers is shown below.
Bankers Trust New York Corporation
| |
100% 100%
| |
BT Holdings (New York), Inc. Bankers Trust Company
|
100%
|
BT Capital Partners, Inc.
Page 18
<PAGE>
EXHIBIT 2
JOINT FILING STATEMENT
Pursuant to Rule 13d-1(f)(1), each of the undersigned hereby consents to the
joint filing of a statement on Schedule 13D with respect to shares of Common
Stock, $0.0001 par value, of Alliance Entertainment Corp., on behalf of each
of them.
Date: June 14, 1996
Signature: BANKERS TRUST NEW YORK CORPORATION
By: /s/ James T. Byrne
___________________________________________
Name: James T. Byrne
Title: Senior Vice President
Signature: BANKERS TRUST COMPANY
By: /s/ James T. Byrne
___________________________________________
Name: James T. Byrne
Title: Senior Vice President
Signature: BT CAPITAL PARTNERS, INC.
By: /s/ Heide Silverstein
__________________________________________
Name: Heide Silverstein
Title: Secretary/Treasurer
Page 19
<PAGE>
EXHIBIT 4
RESTATED STOCKHOLDERS AGREEMENT
-------------------------------
RESTATED STOCKHOLDERS AGREEMENT dated as of November 30, 1993 among
ALLIANCE ENTERTAINMENT CORP., a Delaware corporation formerly known as Trinity
Capital Opportunity Corp. (the "Company"), and each of the Stockholders, option
-------
and warrant holders of the Company listed on the signature page hereto.
WHEREAS, each of the Stockholders, Warrantholders and Optionholders is the
record and beneficial owner of the number of issued and outstanding Common
Stock, Options or Warrants to purchase Common Stock of the Company set forth
opposite such person's name on Schedule 1 hereto (except that CIG & Co. is
record holder for certain beneficial owners as indicated on the signature page
hereto); and
WHEREAS, the parties desire to provide herein for certain matters relating
to the control of the Company and to restrict the transfer of shares of Common
Stock, Options and Warrants of the Company;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Definitions. As used in this Agreement the following terms shall have
-----------
the following meanings:
"Affiliate" means any Person directly or indirectly controlling, controlled
---------
by or under common control with the Company.
"Agreement" or "this Agreement" means this Agreement and all Exhibits and
--------- --------------
Schedules hereto.
"Block" means a quantity of the Company's Common Stock equal to at least
-----
50,000 shares.
"Commission" means the Securities and Exchange Commission.
----------
"Common Stock" means the Common Stock, par value $0.0001 per share of the
------------
Company issued to and held by the Stockholders, any shares of Common Stock
hereafter acquired by a Stockholder, whether by purchase, dividend or any other
distribution, or as a result of a stock split, upon exercise of Options, or
otherwise, and any shares of capital stock of the Company hereafter acquired by
a Stockholder upon or in respect of Common Stock as a result of a merger,
consolidation, stock dividend, stock split, reclassification or capital
reorganization.
"Company" means Alliance Entertainment Corp., a Delaware corporation
-------
formerly known as Trinity Capital Opportunity Corp., and its successors.
<PAGE>
"Control" of any Person means the possession, directly or indirectly, of
-------
power (a) to direct or cause the direction of the management and policies of
such Person, whether by voting power, by contract or otherwise, or (b) in the
case of a corporation, to vote more than fifty percent (50%) of the outstanding
capital stock having ordinary voting power for the election of directors of such
corporation.
"Individual Stockholder" means each individual who is or becomes a
----------------------
signatory hereto.
"Institution Stockholder" means BT Capital Corp., BCI Growth, LP, The Chase
-----------------------
Manhattan Bank, N.A., CIG & Co. as nominee, Bear, Stearns & Co., Inc.,
PaineWebber Incorporated and Tucker Anthony Incorporated, and any other
institution which becomes a party hereto.
"NASDAQ" means the automated quotation system of the National Association
------
of Securities Dealers Inc. ("NASD").
"Options" means any option, warrant or right to purchase Common Stock,
-------
including without limitation the Warrants.
"Person" means an individual, a corporation, a partnership, an association,
------
a trust or any other entity or organization, including a government or political
subdivision or any agency or instrumentality thereof.
"Pro Rata" means for purposes of Section 2.3 with respect to the sale of
--------
Shares by a Stockholder, the number which bears the same proportion to the total
number of Shares of Common Stock to be sold as the aggregate number of Shares of
Common Stock and Warrants and Options held by such Stockholder immediately prior
to such sale bears to the aggregate number of Shares of Common Stock and
Warrants and Options held by all Stockholders participating in such sale.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Shares" means shares of Common Stock, Warrants and Options to acquire
------
Common Stock (the right at any time pursuant to Warrants or Options to purchase
one share of Common Stock being treated at such time as one Share, whether or
not such right is presently exercisable).
"Stockholder" means each signatory hereof other than the Company.
-----------
"Trading Volume" means the daily trading volume for the Company's Common
--------------
Stock on NASDAQ as made available by the NASD, for the four calendar weeks
preceding the week in which a sale is to be made.
2
<PAGE>
"Transfer" means any sale, assignment, transfer, pledge, hypothecation,
--------
gift, encumbrance or other disposition of Shares.
"Warrants" means the warrants to purchase Common Stock set forth on
--------
Schedule 1 hereto, and any warrants issued in exchange therefor or replacement
thereof.
2. Restrictions on Transfer.
------------------------
2.1 General Restrictions. During the term of this Agreement, none of the
--------------------
Shares now owned or hereafter acquired by any of the Stockholders may be
transferred in other than an open market transaction on NASDAQ unless otherwise
consented to by the Company or unless the proposed recipient of such shares
(other than a transferee who is a Stockholder prior to such transfer) shall
deliver to the Company a written agreement to the effect that the Shares to be
received in such proposed transfer are subject to this Agreement.
2.2 Transfer. Any Stockholder that transfers Shares shall do all things
--------
and execute and deliver all such papers as may be necessary or reasonably
requested by the Company's registrar and transfer agent in order to complete the
transfer of such Shares.
2.3 Transfer Procedures. (a) Each Individual Stockholder hereby confirms
-------------------
that it has given the Company a letter restricting its sales of Common Stock
until the date six months after the Effective Date of the Merger of Alliance
Entertainment Corp. into the Company. In addition to complying with its
obligations under such letter, each Individual Stockholder agrees that until the
public float of the shares of Common Stock attains a market value of at least
$100 million, such Stockholder will comply with the following rules, as well as
the provisions of Section 2.4 and any lock-up letter given by such Stockholder
to the Company:
(i) On the first day each month each Individual Stockholder will make a
good faith estimate of the number of shares he/she anticipates selling during
that month. No Individual Stockholder will sell, during any month, an amount
greater than he/she indicated at the start of that month unless such sale is
approved by the Company.
(ii) All sales made on a single day by an Individual Stockholder shall be
through one broker designated by the Company. Initially all sales will be
through Tucker Anthony Incorporated.
(iii) No shares shall be sold as the opening transaction on a trading day
or within one-half hour before the termination of the period in which the last
sale prices are reported.
3
<PAGE>
(iv) No such sales shall be made at lower than the highest independent bid
quotation reported in Level 2 of NASDAQ.
(v) The sales of all Individual Stockholders on a day shall not exceed the
number of round lots closest to 25% of the Trading Volume other than a Block
sale.
(vi) To the extent that fewer shares are sold in a day than are indicated
by the Individual Stockholders such sale shall be allocated Pro Rata among the
Stockholders desiring to sell on that day, based on the number of shares owned
by them.
(b) Each Institution Stockholder hereby confirms that it has given the
Company a letter restricting its sales of Common Stock (a "lock-up letter")
--------------
until the date six month after the effective date of the merger of Alliance
Entertainment Corp. into the Company (the "lock-up expiration date"). In
-----------------------
addition to complying with its obligations under the lock-up letter given by it,
each Institution Stockholder agrees that, until the earlier of six months after
the lock-up expiration date or such time as the public float of the shares of
Common Stock has attained a market value of at least $100 million, it will not
sell in any three month period a number of shares of Common Stock which exceeds
the greater of (x) one percent of the outstanding Common Stock and (y) the
average weekly volume of trading of the Common Stock during the four calendar
weeks preceding the date of such proposed sale.
2.4 Additional Transfer Restrictions. After his lock up letter shall have
--------------------------------
expired each Individual Stockholder agrees that he will not during any
subsequent three month period individually sell more than the lesser of (a) one
percent of the outstanding Common Stock, (b) one percent of the public float or
(c) twenty percent of his holdings of Common Stock; provided that all such sales
will comply with the restrictions of Section 2.3 above.
To the extent that the Company after consultation with its financial advisors
believes that more shares of Common Stock may be sold or that any of the
restrictions set forth in Sections 2.3 and 2.4 should not apply in a given
period it will so inform the Stockholders of temporary changes to these
requirements.
3. Stockholder Rights.
------------------
3.1 Co-Sale Rights.
--------------
(a) In the event that one or more Stockholders (the "Sellers") propose to
-------
transfer Shares in any transaction or series of related transactions in which
Control of the Company is to be transferred (a "Sale of Control"), then the
---------------
Sellers proposing to sell or transfer (or their representative) shall deliver to
each of the other Stockholders a written notice (the "Sale Notice") to such
-----------
effect, containing a description of the proposed transaction and
4
<PAGE>
the terms thereof. Upon delivery of the Sale Notice each of the other
Stockholders shall have the right to require the Sellers to arrange for the sale
to the proposed transferee(s) of a percentage of such other Stockholder's Shares
equal to the highest percentage of any Seller's holdings of Shares that any
Seller desires to sell or transfer to the transferee(s), on terms and conditions
at least as favorable to such other Stockholders as the terms and conditions set
out in the Sale Notice; provided, however, that in any Sale of Control each
-------- -------
Stockholder selling Options shall be entitled to receive from the proposed
transferee(s) the consideration for shares of Common Stock otherwise payable in
such transaction, net of the exercise price of such Options then in effect.
(b) If the transferee(s) will not purchase all of the Shares which the
Sellers and each other Stockholder desire to sell or transfer pursuant to this
Section 3.1, then the number of Shares which each Stockholder shall be permitted
to sell or transfer to such transferee(s) shall be the same proportion of the
aggregate number of Shares to be sold or transferred as the Shares held by such
Stockholder bear to all Shares held by the Sellers and all other Stockholders
desiring to participate in the sale or transfer to the transferee(s). The sales
or transfers by the other Stockholders shall be for the same consideration and
otherwise on the same terms and conditions as specified in the Sale Notice.
(c) Each other Stockholder may exercise such person's right under this
Section 3.1 by written notice to the Seller(s) who gave the Sale Notice given
within ten (10) days after the date on which such other Stockholder receives the
Sale Notice.
3.2 Registration Rights.
-------------------
(a) The Company agrees to use best efforts to maintain with respect to the
Shares an effective registration statement under the Securities Act and a
current prospectus relating thereto, and effective registration statements or
qualifications under the securities laws of each holder's state of residence,
for a period of five (5) years after the date hereof. To the extent such
registration statements or qualifications are not maintained in effect, the
Stockholders and the Company shall have the rights and obligations set forth in
Exhibit A attached hereto with respect to registrations of the Company's
- ---------
securities under the Securities Act.
(b) The rights of an Institution Stockholder under Sections 2 and 3 of
Exhibit A shall cease to be exercisable after the later of (a) the fifth
- ---------
anniversary of the date of this Agreement, and (b) any date as of which the
Institution Stockholder has disposed of Shares constituting 80% of the Shares
held by it on the date hereof (determined on a fully-diluted basis), in either
case provided that the Company shall continue to comply with the public
information requirements for the availability of Rule 144 with respect to
subsequent sales by the Institution Stockholder.
5
<PAGE>
The rights of other Stockholders under Section 3 of Exhibit A shall cease to be
---------
exercisable upon the fifth anniversary of this Agreement.
4. Restrictive Legends. Each certificate evidencing Shares held by a
-------------------
Stockholder shall contain restrictive legends substantially as follows:
"The sale, assignment, transfer, pledge, encumbrance, or other
disposition of the Shares evidenced by this certificate, or any interest in
such Shares, is restricted by the terms of a Restated Stockholders
Agreement dated as of November 30, 1993, a copy of which is on file at the
principal office of the corporation. No such sale, assignment, transfer,
pledge, encumbrance or other disposition shall be effective unless and
until the terms and conditions of the aforesaid Stockholders Agreement
shall have been complied with in full. A copy of such Stockholders
Agreement is available upon request."
5. Representations and Warranties by the Stockholders. Each Stockholder
--------------------------------------------------
hereby represents and warrants as follows:
(a) This Agreement has been duly executed and delivered by such
Stockholder and constitutes the valid and binding obligation of such Stockholder
enforceable in accordance with its terms.
(b) Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated hereby, nor compliance with the
terms and provisions hereof, will conflict with, or result in a breach of, the
terms, conditions or provisions of, or constitute a default under, the charter,
by-laws or partnership agreement of such Stockholder, or of any applicable law,
or of any order, writ, injunction or decree of any court, administrator or
arbitrator, or of any Agreement or instrument which is applicable to such
Stockholder, under which such Stockholder is obligated or by which any of such
Stockholder's property is bound.
6. Grant of Proxy. Each of Alan Shapiro and Jerry Bassin, Alan Meltzer,
--------------
Anil Narang, Lawrence Burstein and Barry Goldin, severally, does hereby
irrevocably constitutes and appoint Joseph Bianco his true and lawful attorney,
with full right of substitution, in his name, place and stead, to vote upon the
stock owned by him or standing in his name, as his proxy, at any and all
meetings of the stockholders of the Company upon any and all matters that may be
presented considered and voted upon at any annual or special meeting of
Stockholders of the Company, including the election of directors, as fully and
with like effect as he might or could have done if personally present, hereby
ratifying and confirming all that such attorney may do in his name, place or
stead. This proxy, being coupled with an interest, is irrevocable.
6
<PAGE>
7. General Provisions.
------------------
7.1 Notices. All notice, requests and other communications to any
-------
party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given to the Company at 115 East 57th Street, New York,
New York 10022, and to any other party at its address set forth on Schedule 1
hereto, or such other address such party may hereafter specify for the purpose
by notice to the other parties. Except as otherwise provided herein, each such
notice, request or other communication to a party shall be effective (a) if
given by mail, three (3) business days after being deposited in the mail
registered or certified, return receipt requested, with postage paid, addressed
to such party as aforesaid, or (b) if given by any other means when delivered to
such party at its address specified as provided in this Section.
7.2 Equitable Relief. The parties hereto agree that legal remedies
----------------
may be inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provision of this Agreement.
7.3 Additional Parties. Any person who executes an agreement to be
------------------
bound hereby shall be deemed to be a Stockholder and shall be bound by all
obligations and, except to the extent limited in said agreement, entitled to all
rights and privileges of a Stockholder as if such person had been an original
signatory to this Agreement.
7.4 Amendments. Any provisions of this Agreement may be amended only
----------
if such amendment is in writing and is signed by the Company and the holders of
Shares then subject to this Agreement or the Stockholders to be bound thereby.
7.5 Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and assignees, (including
any Person who acquires any Shares and agrees to be bound by the provisions
hereof).
7.6 Governing Law. This Agreement shall be construed in accordance
-------------
with and governed by the laws of the State of Delaware.
7.7 Counterparts; Effectiveness. This Agreement may be signed in any
---------------------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
7.8 Captions. The captions in this Agreement are included for
--------
convenience of reference only, do not constitute a
7
<PAGE>
part hereof and shall be disregarded in the interpretation or construction
hereof.
7.9 Entire Agreement. Subject to the terms of the Company's
----------------
Certificate of Incorporation, this Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all previous agreements (other than the separate lock-up letters
executed by each of the Stockholders and a letter of even date from the Company
to the Institution Stockholders), whether written or oral, relating to the same
subject matter, including without limitation the Stockholders Agreement dated as
of September 30, 1993 among Alliance Entertainment Corp. and the Stockholders
referred to therein, and any other existing shareholder agreements or agreements
in respect of registration rights. All such previous agreements, if any, among
the parties hereto (or any of them) are hereby terminated and shall have no
further force or effect.
7.10 Termination. (a) Except as with respect to provisions of this
-----------
Agreement and any Exhibit hereto which by their terms survive the termination
hereof. This Agreement may be terminated at any time by an instrument in
writing signed by (i) the Company, (ii) holders of more than fifty percent (50%)
of the Shares held by Individual Stockholders, and (iii) the Institution
Stockholders.
(b) Except as with respect to provisions of this Agreement and any
Exhibit hereto which by their terms survive the termination hereof. This
Agreement shall automatically terminate at such a time as a transfer of Control
of the Company, to a Person that is not a Stockholder or an Affiliate of a
Stockholder, is completed in compliance with Section 3.1. Unless earlier
terminated as provided above, the provisions of Section 6 shall terminate ten
(10) years from the date hereof except that, at any time within two (2) years
prior to such date, Alan Shapiro or Jerry Bassin, as the case may be, may extend
the duration thereof for as many additional periods, each not to exceed ten (10)
years, as they may desire.
(c) The obligations of any Stockholder under this Agreement shall
terminate with respect to any Shares transferred by such holder in compliance
with this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ALLIANCE ENTERTAINMENT CORP.
________________________ By:________________________
Joseph Bianco Title:
8
<PAGE>
BT CAPITAL CORPORATION
___________________________
Jerry Bassin
By:________________________
Title:
___________________________
Alan Shapiro
BCI GROWTH, L.P.
By: Teaneck Associates, L.P.,
___________________________ General Partner
Anil Narang
By:________________________
___________________________ Title:
General Partner
R. Tobias Knobel
CIG & CO. (as nominee for Connecticut
General Life Insurance Company)
___________________________
Ed Raskin
By:___________________________
Title:
___________________________
Alan Meltzer CIG & CO. (as nominee for Connecticut
General Life Insurance Company on behalf
of one or more separate accounts)
___________________________
Diana Meltzer
By:___________________________
Title
___________________________
John H. Friedman
CIG & CO. (as nominee for CIGNA
Mezzanine Partners II, L.P.)
___________________________
Robert O. Marx
By:____________________________
Title:
___________________________
Elliot B. Newman
THE CHASE MANHATTAN BANK, N.A.
___________________________
Alan Tuchman
By:____________________________
Title:
___________________________
Barry Goldin
9
<PAGE>
BEAR, STEARNS & CO. INC.
___________________________ By:____________________________
Lawrence Burstein Title:
TUCKER ANTHONY INCORPORATED
By:____________________________
Title:
PAINEWEBBER INCORPORATED
By:____________________________
Title:
10
<PAGE>
SCHEDULE 1 TO
STOCKHOLDERS AGREEMENT
----------------------
List of Names and Holdings of Stockholders
------------------------------------------
Number of
Name Shares of Common Stock Warrants Options
- ---- ---------------------- --------- -------
BT Stockholders:
- ---------------
BT Capital Corporation 1,266,221 407,905 --
280 Park Avenue
New York, New York 10017
BCI Stockholders:
- ----------------
BCI Growth, L.P. 628,779 202,545 --
Glenpointe Centre West
Teaneck, New Jersey
07666-6883
Management Stockholders:
- --------------------------
Joseph Bianco 5,750,000/*/ -- 2,510,000
Jerry Bassin 2,250,000 -- 150,000
Alan Shapiro 2,250,000 -- 25,000
Anil Narang 675,000/**/ -- 925,000
Ed Raskin 125,000 -- 10,000
R. Tobias Knobel 411,250 -- 195,250
John H. Friedman -- -- 125,000
Robert O. Marx -- -- 100,000
Elliot B. Newman -- -- 165,000
Alan Tuchman -- -- --
c/o Alliance Entertainment Corp.
115 East 57th Street
New York, New York 10022
- ----------
/*/ Includes 1,125,000 shares subject to a Stock Restriction Agreement.
/**/ Includes 375,000 shares subject to a Stock Restriction Agreement.
11
<PAGE>
Number of
Name Shares of Common Stock Warrants Options
- ---- ---------------------- -------- ---------
Meltzer Stockholders:
- ---------------------
Alan Meltzer 4,310,625 -- --
Diana Meltzer 1,436,875 -- --
c/o Frances J. Clarke Circle
Bethel, Connecticut 06801
Employee Options -- -- --
CIGNA Stockholders:
- -------------------
CIG & Co. (as nominee for
Connecticut General Life 1,305,125 -- --
Insurance Company)
CIG & Co. (as nominee for
CIGNA Mezzanine
Partners II, L.P.) 824,875 -- --
c/o CIGNA Investments Inc./***/
Hartford, Connecticut 06152
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza -- 250,000 --
New York, New York 10081
Bear Stearns & Co., Inc. 150,000 375,000 --
245 Park Avenue
New York, New York 10167
Tucker Anthony Incorporated 75,000 200,000 --
One World Financial Center
New York, New York 10019
PaineWebber Incorporated 50,000 200,000 --
1285 Avenue of the Americas
New York, New York 10019
Trinity Stockholders:
- --------------------
Barry Goldin 560,250 -- --
Lawrence Burstein 560,250 -- --
c/o Trinity Capital Corp.
950 Third Avenue
New York, New York 10022
TOTAL:
- -----
- ----------
/***/ In the event that notices/communications are sent by courier (e.g.,
Federal Express, Airborne) or Express Mail rather than by regular U.S. Postal
Service, substitute "900 Cottage Grove Road, Bloomfield, Connecticut 06002" in
place of "Hartford, Connecticut 06152."
12
<PAGE>
EXHIBIT A
---------
to
Restated Stockholders Agreement
among Alliance Entertainment Corp.
and the Stockholders named therein
Registration Rights
-------------------
1. Definitions. As used in this Exhibit A, the following terms shall
-----------
have the following meanings:
"BCI Stockholder" means BCI Growth, L.P. and any transferee of Shares
---------------
originally owned by BCI Growth, L.P.
"BT Stockholder" means BT Capital Corporation and any transferee of
--------------
Shares originally owned by BT Capital Corporation.
"Chase Stockholder" means The Chase Manhattan Bank, N.A. and any
-----------------
transferee of Shares originally owned by The Chase Manhattan Bank, N.A.
"CIGNA Stockholder" means CIG & Co. and any transferee of Shares
-----------------
originally held by CIG & Co. as record holder for certain beneficial owners as
indicated on the signature page to the Restated Stockholders Agreement.
"Common Stock" means Common Stock, par value $0.0001 per share, of the
------------
Company.
"Employment Agreement" means the Employment and Non-Competition
--------------------
Agreement dated as of September 30, 1993 between the Company and Alan Meltzer.
"Meltzer Stockholder" means Alan Meltzer and Diana Meltzer and any
-------------------
transferee of Shares originally owned by Alan Meltzer or Diana Meltzer.
"Pro Rata" means, with respect to the shares of Common Stock that a
--------
Registering Stockholder has requested be included in an underwritten public
offering, but which are to be excluded from such offering as provided in this
Exhibit A, the same proportion of the aggregate number of shares of Common Stock
to be excluded from such offering as the aggregate number of shares of Common
Stock held by such Registering Stockholder bears to the aggregate number of
shares of Common Stock held by all Registering Stockholders whose shares are to
be excluded.
<PAGE>
"Registrable Securities" means, collectively, (i) Common Stock of the
----------------------
Company issued to Stockholders, and (ii) Common Stock issued or issuable by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise
with respect to Registrable Securities. Registrable Securities shall cease to
be Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) such securities shall have been sold pursuant to Rule 144 (or
any successor provision) under the Securities Act or (iii) such securities shall
have been otherwise transferred, new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require the registration or
qualification of such securities under the Securities Act or any similar state
law then in effect.
"Registration Expenses" means all expenses incident to the Company's
---------------------
performance of or compliance with this Exhibit A and the completion of
transactions relating thereto including, without limitation, all registration
and filing fees, all fees and expenses of complying with securities or blue sky
laws, all printing expenses, the fees and disbursements of the Company's
independent public accountants, including the expenses of any special audits,
reviews, compilations or other reports or information required by or incident to
such performance and compliance, and any fees or expenses of counsel for the
Company and of one special counsel to represent the holders on whose behalf
Registrable Securities are being registered, but excluding (i) any allocation of
the Company or selling Stockholder personnel or other general overhead expenses
of the Company or of any selling Stockholder or other expenses for the
preparation of financial statements or other data normally prepared by the
Company in the ordinary course of its business, which shall be borne by the
party incurring the expense in all cases, and (ii) any underwriting discounts
and commissions with respect to such Registrable Securities, which shall be
borne by the holder on whose behalf such Registrable Securities are being
registered.
"Stockholder" means a holder of Common Stock.
-----------
Unless otherwise defined herein, capitalized terms used in this Exhibit A have
the meanings assigned to them in the Restated Stockholders Agreement.
-2-
<PAGE>
2. Registration on Request. (a) Upon the written request of (A) BT
-----------------------
Stockholders holding more than fifty percent (50%) of the Common Stock and
Warrants then held by all BT Stockholders, (B) BCI Stockholders holding more
than fifty percent (50%) of the Common Stock and Warrants then held by all BCI
Stockholders or (C) following the termination of the employment of Alan Meltzer
without cause, as specified in Section 7B of the Employment Agreement, Alan
Meltzer, or (D) Chase Stockholders holding more than fifty percent (50%) of the
Common Stock and Warrants then held by all Chase Stockholders (in any such case,
the "Requesting Stockholders"), requesting that the Company effect the
-----------------------
registration under the Securities Act of all or part of the Registrable
Securities held by such Requesting Stockholders (or, in the case of Alan
Meltzer, at least 50% of the Registrable Securities then held by the Meltzer
Stockholders) and specifying the intended method or methods of disposition of
such Registrable Securities, the Company will promptly give written notice of
such requested registration by registered or certified mail, return receipt
requested, to all Stockholders and thereupon will use its best efforts to
effect, at the earliest possible date, the registration, under the Securities
Act, subject to Section 2(d), of
(i) the Registrable Securities which the Company has been so
requested to register by such Requesting Stockholders, for disposition as
stated in such request, and
(ii) all other Registrable Securities which the Company has been
requested to register by other Stockholders holding Registrable Securities
(which Stockholders, together with the Requesting Stockholders, are
referred to herein as "Registering Stockholders") by written request
------------------------
delivered to the Company within thirty (30) days after the giving of such
written notice by the Company (which request shall specify the intended
method of disposition of such Registrable Securities),
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities to be so
registered, provided that (A) if the Company shall have previously effected a
--------
registration of which notice has been given to all Stockholders holding
Registrable Securities pursuant to Section 3, in which all Institution
Stockholders, or Meltzer Stockholders, wishing to do so were permitted to sell
all Registrable Securities they desired to sell, the Company shall not be
required by any Institution Stockholder or
-3-
<PAGE>
Meltzer Stockholder, respectively, to effect a registration pursuant to this
Section 2 until a period of 90 days shall have elapsed from the effective date
of the most recent such previous registration, (B) the Company shall not be
obligated to effect more than one such registration requested by BT
Stockholders, one such registration requested by BCI Stockholders, one such
registration requested by Alan Meltzer and one such registration requested by
the Chase Stockholders pursuant to this Section 2(a), (C) in the case of a
request by an Institution Stockholder, no such registration pursuant to this
Section 2(a) shall be required before the earlier of (x) October 31, 1995 and
(y) the date one hundred eighty (180) days after the Company's initial public
offering of securities registered under the Securities Act, and (D) in the case
of a request by Alan Meltzer, the registration requested must involve an
underwriting of all the securities requested to be registered. Each
registration requested pursuant to this Section 2 shall be (i) effected by the
filing of a registration statement on Form S-1, Form S-2 or Form S-3 (or any
other form which the Company is qualified to use), and (ii) if the Company is
qualified and if agreed to in writing by the Requesting Stockholders, filed
pursuant to Rule 415 under the Securities Act (or equivalent rule then in
effect).
(b) The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities effected by the Company pursuant to
this Section 2.
(c) The Company will not register securities for sale for the account
of any Person other than (i) the Company, and (ii) holders of Registrable
Securities. The Company will not grant to any Person the right to request a
registration of securities except pursuant to Section 2(a). The Company may
grant incidental rights to participate in registrations comparable to those
granted in Section 3.
(d) If the registration so requested by the Requesting Stockholders
involves an underwritten offering of the securities so being registered, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and the managing underwriter of such underwritten offering shall
advise the Company in writing that, in its opinion, the distribution of all or a
specified portion of the Registrable Securities which the Registering
Stockholders have requested to register under Section 2(a)(i) or (ii) will cause
the total number of securities to be distributed to exceed the number
-4-
<PAGE>
which can be sold in an orderly manner within a price range acceptable to the
holders of a majority of the Registrable Securities initially requesting the
registration, then the Company will promptly furnish each Registering
Stockholder a copy of the opinion of the managing underwriter, will register the
shares of Common Stock which the Registering Stockholders have requested
pursuant to Section 2(a)(i) or (ii) in an amount not to exceed the maximum
number of shares that the managing underwriter deems advisable and, to the
extent necessary so that the aggregate number of shares to be registered does
not exceed the maximum amount the managing underwriter deems advisable, will
first reduce the number of shares that each Registering Stockholder, other than
an Institution Stockholder or a CIGNA Stockholder, has requested to register
pursuant to Section 2(a)(ii), Pro Rata, and then, to the extent necessary,
reduce the number of shares that each Institution Stockholder and CIGNA
Stockholder has requested to register pursuant to Section 2(a)(i) or (ii), Pro
Rata, and then, to the extent necessary, reduce the number of shares that each
Meltzer Stockholder has requested to register pursuant to Section 2(a)(i).
(e) If requested by the underwriters for any underwritten offering of
Registrable Securities on behalf of a holder or holders of Registrable
Securities pursuant to a registration requested under this Section 2, the
Company will enter into an underwriting agreement with such underwriters for
such offering, such agreement to contain such representations and warranties by
the Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution provisions to the effect and to
the extent provided in Section 6.
(f) If, at any time after requesting registration pursuant to Section
2(a) and prior to the effective date of the registration statement filed in
connection with such registration request, any Requesting Stockholder shall
determine for any reason not to register such Registrable Securities, such
Requesting Stockholder may, at its election, give written notice of such
determination to the Company. The Company shall then be relieved of its
obligations to register any Registrable Securities in connection with such
Requesting Stockholder's registration request (but not its obligation to pay the
Registration Expenses in connection therewith as provided in Section 2(b)),
without prejudice, however, to the rights pursuant to Section 2(a) of any other
Registering Stockholders to request that such registration be effected.
-5-
<PAGE>
(g) In connection with the first request for registration pursuant to
Section 2(a), the Company may, within fifteen (15) days after its receipt of
such request, give the Requesting Stockholders notice that it is the good faith
intention of the Company to register securities under the Securities Act for
sale for its own account. Thereafter, the provisions of Section 3 shall govern,
and the Requesting Stockholders' registration request under Section 2(a) shall
be deemed rescinded. The Requesting Stockholders shall again be entitled to
request such registration under Section 2(a), but not sooner than the earliest
of (i) ninety (90) days after the effective date of the Company's registration,
(ii) the Company's determination (of which the Company shall promptly notify the
holders of Registrable Securities) not to proceed with its registration of
securities, and (iii) the Company's failure to use best efforts to effect the
registration of its securities.
(h) In connection with any request for registration pursuant to
Section 2(a), the Company may, on one occasion only, upon a good-faith
determination by the Company's Board of Directors that such a registration would
interfere with the completion of a proposed corporate transaction, notify the
Requesting Stockholders that it intends to defer such registration for up to one
hundred twenty (120) days. In such event the Requesting Stockholders may
rescind their registration request, and shall again be entitled to request such
registration under Section 2(a), but not sooner than the end of the period of
deferral determined by the Company.
3. Incidental Registrations. (a) If, at any time, the Company
------------------------
proposes to register any of its securities under the Securities Act, whether or
not for sale for its own account, on a form and in a manner which would permit
registration of Registrable Securities for sale to the public under the
Securities Act, it will each such time give prompt written notice to all holders
of Registrable Securities of its intention to do so, describing such securities
and specifying the form and manner and the other relevant facts involved in such
proposed registration, and upon the written request of any such holder delivered
to the Company within thirty (30) days after the giving of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such holder and the intended method of disposition thereof), the Company
will use its best efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to register
by the holders of Registrable Securities, to the extent requisite to permit the
disposition (in accordance with the intended methods
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thereof as aforesaid) of the Registrable Securities so to be registered,
provided that:
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(i) if, at any time after giving such written notice of its intention
to register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to
each holder of Registrable Securities and thereupon shall be relieved of
its obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith as provided in Section 3(b)), without
prejudice however to the rights of any Stockholders to request that such
registration be effected as a registration under Section 2(a);
(ii) if the registration so proposed by the Company involves an
underwritten offering of the securities so being registered, whether or not
for sale for the account of the Company, to be distributed (on a firm
commitment basis) by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a transaction, and
the managing underwriter of such underwritten offering shall advise the
Company in writing that, in its opinion, the distribution of all or a
specified portion of the Registrable Securities which the Stockholders have
requested the Company to register in accordance with this Section 3(a)
concurrently with the securities being distributed by such underwriters
will cause the total number of securities to be distributed to exceed the
number which can be sold in an orderly manner within a price range
acceptable to the Company or the holders of the other securities to be
distributed, as the case may be, then the Company will promptly furnish
each such holder of Registrable Securities with a copy of such opinion and
may deny, by written notice to each such holder accompanying such opinion,
the registration of all or a specified portion of such Registrable
Securities (in case of a denial as to a portion of such Registrable
Securities, such portion to be allocated Pro Rata among such holders in
accordance with the last sentence of Section 2(d) hereof); and
(iii) the Company shall not be obligated to effect any registration
of Registrable Securities under this Section 3 incidental to the
registration of any of
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its securities in connection with dividend reinvestment plans or stock
option or other employee benefit plans.
(b) The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
3.
4. Registration Procedures. (a) If and whenever the Company is
-----------------------
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2 or 3, the Company
will as expeditiously as possible:
(i) prepare and promptly file with the Commission a registration
statement with respect to such Registrable Securities (in any event, use
its best efforts to file such registration statement within sixty (60) days
after the end of the period within which requests for registration may be
delivered to the Company) and use its best efforts to cause such
registration statement to become effective;
(ii) 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 and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities and other
securities covered by such registration statement until the earlier of such
time as all of such Registrable Securities and other securities have been
disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement or the
expiration of nine (9) months after such registration statement becomes
effective;
(iii) furnish to each seller of such Registrable Securities, without
charge, such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities
Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such seller may
reasonably request;
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<PAGE>
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as each seller
(or in an underwritten offering, the managing underwriter) shall reasonably
request, and do any and all other acts and things which may be necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(v) furnish to each seller of Registrable Securities by means of such
registration a signed counterpart, addressed to such seller, of (A) an
opinion of counsel for the Company, dated the effective date of such
registration statement (or, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement speaking both as of the effective date of the registration
statement and the date of the closing under the underwriting agreement)and
(B) a "cold comfort" letter dated the effective date of such registration
statement (and, if such registration statement includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement) signed by the independent public accountants who have certified
the Company's financial statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, as such seller may
reasonably request;
(vi) immediately notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as
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<PAGE>
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing, and prepare and furnish to such seller a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities or other securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(vii) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve (12) months beginning with the first day of the first month of
the first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder; and
(viii) use its best efforts to list such securities in the NASDAQ System
and each securities exchange on which the Common Stock of the Company is
then listed, if such securities are not already so listed and if such
listing is then permitted under the rules of such exchange, and, if
necessary, provide a transfer agent and registrar for such Registrable
Securities not later than the effective date of such registration
statement.
The Company may require each such holder of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such holder and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
or by the Commission in connection therewith.
(b) If the Company at any time proposes to register any of its
securities under the Securities Act (other than pursuant to a request made under
Section 2), and such securities are to be distributed by or through one or more
underwriters, the Company will make reasonable efforts, if requested by any
holder of Registrable Securities who requests incidental registration of
Registrable Securities in connection therewith pursuant to Section 3, to arrange
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for such underwriters to include such Registrable Securities among those
securities to be distributed by or through such underwriters, provided that, for
--------
purposes of this sentence, reasonable efforts shall not require the Company to
reduce the amount or sale price of such securities proposed to be so
distributed. In all registrations under Section 2 or Section 3 hereof, the
holders of Registrable Securities on whose behalf Registrable Securities are to
be distributed by underwriters shall be parties to any underwriting agreement
and the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters, shall also be made
to and for the benefit of such holders of Registrable Securities.
(c) Whenever a registration requested pursuant to Section 2 is for an
underwritten offering, the holders of a majority of the Registrable Securities
included in such registration shall have the right to select the managing
underwriter to administer the offering subject to the approval of the Company,
such approval not to be unreasonably withheld. If the Company at any time
proposes to register any of its securities under the Securities Act for sale for
its own account and such securities are to be distributed by or through one or
more underwriters, the managing underwriter shall be selected by the Company and
approved by the holders of Registrable Securities requesting registration
thereof, such approval not to be unreasonably withheld.
(d) If any registration pursuant to Section 2 or 3 shall be made in
connection with an underwritten public offering, each holder of Registrable
Securities agrees by acquisition of such Registrable Securities, if so required
by the managing underwriters, not to effect any public sale or distribution of
Registrable Securities (other than as part of such underwritten public offering)
within the period of time between seven days prior to the effective date of such
registration statement and one hundred twenty (120) days after the effective
date of such registration statement.
5. Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of
Registrable Securities on whose behalf such Registrable Securities are to be so
registered and their underwriters, if any, and their respective counsel and
accountants, the opportunity to review and comment upon such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement
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thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the reasonable opinion of such holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
6. Indemnification; Contribution. (a) In the event of any
-----------------------------
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Section 2 or 3, the holder of any
Registrable Securities covered by such registration statement, its directors and
officers, each officer and director of each underwriter, each other person who
participates as an underwriter in the offering or sale of such securities and
each other person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act against any losses, claims, damages,
liabilities and expenses, joint or several, to which such holder or any such
director or officer or participating or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings or investigations in respect
thereof) arise out of or are based upon (x) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus (unless, with respect to the indemnification of the
officers and directors of each underwriter and each other person participating
as an underwriter, any such statement is corrected in a subsequent prospectus
and the underwriters are given the opportunity to circulate the corrected
prospectus to all persons receiving the preliminary prospectus), final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (y)
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, or
(z) any violation by the Company of any securities laws, and the Company will
reimburse such holder and each such director, officer, participating person and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
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be liable to any seller, director, officer, participating person or controlling
person in any such case to the extent
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that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company in an instrument executed by
or under the direction of such seller, director, officer, participating person
or controlling person for use in the preparation thereof, which information was
specifically stated to be for use in the registration statement, prospectus,
offering circular or other document. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, participating person or controlling person and
shall survive the transfer of such securities by such seller. The Company shall
agree to provide for contribution relating to such indemnity as shall be
reasonably requested by any seller of Registrable Securities or the
underwriters.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(a), that the Company shall have received an undertaking satisfactory to it
from the prospective sellers of such securities and their underwriters, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 6) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and each other person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus included therein, or any amendment or supplement thereto, but only if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such sellers or their underwriters specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person and
shall survive the transfer of such securities by such sellers.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or
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proceeding involving a claim referred to in the preceding subdivisions of this
Section 6, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
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indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 6 except to the extent that the indemnifying party's rights are
prejudiced, or liabilities and obligations under this Section 6 are increased,
as a result of such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified party
as aforesaid, (ii) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (iii) representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other person represented by such counsel in such
proceeding or the indemnified party shall have reasonably concluded that there
may be legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party. No indemnifying party will consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without the written consent of such indemnifying party (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify each indemnified party from and against any loss or liability by
reason of such settlement or judgment.
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(d) Indemnification and contribution similar to that specified in
this Section 6 (with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of such Registrable Securities under any
federal or state law or regulation or governmental authority other than the
Securities Act.
(e) The rights and obligations of the parties under this Section 6
shall survive any termination of the Restated Stockholders Agreement.
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