EXHIBIT
4.2
EXECUTION
COPY
R E G I S T R A T I O N R I G H T S
A G R E E M E N T
$350 Million Aggregate Principal Amount
10% Series A Redeemable Convertible Participating Perpetual
Preferred Stock
10% Series B Redeemable Conditional Convertible Participating
Perpetual Preferred Stock
Registration
Rights Agreement, dated as of June 23, 2009, by and among Office
Depot, Inc., a Delaware corporation (the “ Company
”), BC Partners, Inc., as the Investor Representative, and
the several investors listed on Schedule 1 (together with their
Permitted Transferees, collectively, the “ Investors
”).
WHEREAS, on the
date of this Agreement, the Company and the Investors entered into
a Securities Purchase Agreement dated the date of this Agreement
(the “ Purchase Agreement ”) pursuant to which
the Company agreed to sell to the Investors, and the Investors
agreed to purchase from the Company, $350.0 million of Preferred
Shares on the terms and subject to the conditions set forth in the
Purchase Agreement; and
WHEREAS, it is
as an inducement to the Investors to enter into the Purchase
Agreement and a condition to the closing of the transactions
contemplated by the Purchase Agreement that the Company and the
Investors enter into this Agreement.
NOW, THEREFORE,
in consideration of the foregoing and the agreements contained in
this Agreement, and intending to be legally bound by this
Agreement, the Company and the Investors agree as
follows:
1.
Definitions . Capitalized terms used and not otherwise
defined in this Agreement that are defined in the Purchase
Agreement shall have the respective meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following
terms shall have the respective meanings set forth in this Section
1:
“
Automatic Shelf Registration Statement ” means an
“automatic shelf registration statement” as defined in
Rule 405 under the Securities Act.
“
Company ” shall have the meaning set forth in the
preamble of this Agreement.
“
Effectiveness Deadline ” means with respect to any
registration statement required to be filed to cover the resale by
the Investors of the Registrable Securities pursuant to Section 2,
(i) the date such registration statement is filed, if the Company
is a WKSI as of such date and such registration statement is an
Automatic Shelf Registration Statement eligible to become
immediately effective upon filing pursuant to Rule 462, or (ii) if
the Company is not a WKSI as of the date such registration
statement is filed, the 5 th Business Day following the
date on which the Company is notified by the SEC that such
registration statement will not be reviewed or is not subject to
further review and comments and will be declared effective upon
request by the Company.
“
Electing Investors ” means, with respect to a
registration, each of the Investors that has elected to register
Registrable Securities directly owned by such Investor in
accordance with Section 2 or 3, as the case may be, as communicated
in writing to the Company by the Investor Representative in
accordance with Section 2(a) or 3(a), as applicable.
“
Filing Deadline ” means with respect to any
registration statement required to be filed to cover the resale by
the Investors of the Registrable Securities pursuant to Section 2,
(i) 15 Business Days following the written notice of demand
therefor by the Investor Representative, if the Company is a WKSI
as of the date of such demand, or (ii) if the Company is not a WKSI
as of the date of such demand, (x) 20 Business Days
following the
written notice of demand therefor if the Company is then eligible
to register for resale the Registrable Securities on Form S-3 or
(y) if the Company is not then eligible to use Form S-3, 45
Business Days following the written notice of demand therefor,
provided that, to the extent that the Company has not been
provided the information regarding the Electing Investors and their
Registrable Securities in accordance with Section 9(b) at least two
Business Days prior to the applicable Filing Deadline, then the
such Filing Deadline shall be extended to the second Business Day
following the date on which such information is provided to the
Company.
“
Freely Tradable ” shall mean, with respect to any
security, a security that (a) is eligible to be sold by the holder
thereof without any volume or manner of sale restrictions under the
Securities Act pursuant to Rule 144 thereunder, (b) bears no
legends restricting the transfer thereof and (c) bears an
unrestricted CUSIP number (to the extent such security is issued in
global form).
“
Indemnified Party ” shall have the meaning set forth
in Section 8(c). “ Indemnifying Party ” shall
have the meaning set forth in Section 8(c). “ Investor
Indemnitee ” shall have the meaning set forth in Section
8(a).
“
Investors ” shall have the meaning set forth in the
preamble of this Agreement.
“
Other Securities ” shall have the meaning set forth in
Section 3(a).
“
Permitted Transferees ” shall have the meaning set
forth in Section 11(d).
“
Piggyback Notice ” shall have the meaning set forth in
Section 3(a).
“
Piggyback Registration ” shall have the meaning set
forth in Section 3(a).
“
prospectus ” means the prospectus included in a
registration statement (including a prospectus that includes any
information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
registration statement, and all other amendments and supplements to
the prospectus, including post-effective amendments.
“
Purchase Agreement ” shall have the meaning set forth
in the recitals of this Agreement.
“
Register ,” “ registered ,” and
“ registration ” shall refer to a registration
effected by preparing and filing a registration statement with the
SEC in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of
effectiveness of such registration statement by the SEC.
“
Registrable Securities ” means (a) shares of Common
Stock issued by the Company upon conversion of any shares of Series
A Preferred Stock or Series B Preferred Stock, (b) if the
Shareholder Approvals are not obtained on or prior to June 23,
2011, shares of Series B Preferred Stock and (c) any securities
issued as (or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as) a dividend,
stock split, recapitalization or other distribution with respect
to, or in exchange for, or in replacement of, the securities
referenced in clause (a) above, clause (b) above or this clause
(c); provided that the term “Registrable
Securities” shall exclude in all cases any securities (i)
that shall have ceased to be outstanding, (ii) that are sold
pursuant to an effective registration statement under the
Securities Act or publicly resold in compliance with Rule 144 or
(iii) that are Freely Tradable (it being understood that,
for
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purposes of
determining eligibility for resale under clause (iii) of this
proviso, no securities held by any Investor shall be considered
Freely Tradable to the extent such Investor reasonably determines
that it is an “affiliate” (as defined under Rule 144
under the Securities Act) of the Company). Solely for purposes of
determining at any time whether any Registrable Securities are then
outstanding, transferred or Freely Tradable, the Series A Preferred
Stock and, to the extent convertible as of the date of such
determination, the Series B Preferred Stock shall be treated, on an
as-converted basis, as Registrable Securities.
“
Registration Expenses ” shall mean, with respect to
any registration, (a) all expenses incurred by the Company in
effecting any registration pursuant to this Agreement, including
all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and
expenses, (b) one-half of all reasonable fees and expenses related
to any registration of Registrable Securities by the Electing
Investors (including the fees and disbursements of one legal
counsel (and only one legal counsel) to the Electing Investors) and
(c) all expenses of the Company’s independent accountants in
connection with any regular or special reviews or audits incident
to or required by any such registration; provided that
Registration Expenses shall not include any Selling
Expenses.
“
registration statement ” means any registration
statement that is required to register the resale of the
Registrable Securities under this Agreement, and including the
related prospectus and any pre- and post-effective amendments and
supplements to each such registration statement or
prospectus.
“
Scheduled Black-out Period ” means the period from and
including the 5 th Business Day preceding the last day
of a fiscal quarter of the Company to and including the 2
nd Business Day after the day on which the Company
publicly releases its earnings for such fiscal quarter.
“
Selling Expenses ” shall mean all underwriting
discounts, selling commissions and stock transfer taxes, if any,
applicable to the sale of Registrable Securities and all fees and
expenses related of the Electing Investors (other than such fees
and expenses included in Registration Expenses).
“
Suspension Period ” shall have the meaning set forth
in Section 2(d).
“
WKSI ” shall mean a “well known seasoned
issuer” as defined in Rule 405 under the Securities
Act.
2.
Demand Registration .
(a) Subject to the terms and conditions of
this Agreement, including Section 2(c), if at any time following
June 23, 2011, the Company receives a written request from the
Investor Representative on behalf of any Electing Investors that
the Company register under the Securities Act Registrable
Securities representing (i) at least 5,500,000 shares of Common
Stock or (ii) any amount of shares of Series B Preferred then
outstanding if the Shareholder Approvals have not been obtained at
such time, then the Company shall file, as promptly as reasonably
practicable but no later than the applicable Filing Deadline, a
registration statement under the Securities Act covering all
Registrable Securities that the Investor Representative, on behalf
of the Electing Investors, requests to be registered. The
registration statement shall be on Form S-3 (except if the Company
is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be on
another appropriate form for such purpose) and, if the Company is a
WKSI as of the Filing Deadline, shall be an Automatic Shelf
Registration Statement. The Company shall use its commercially
reasonable efforts to cause the registration statement to be
declared effective or otherwise to become effective under the
Securities Act as soon as reasonably practicable but, in any event,
no later than the Effectiveness Deadline, and shall use its
commercially reasonable efforts to keep the registration statement
continuously effective under the Securities Act until the earlier
of (1) the date on which the Investor Representative notifies the
Company in writing that the Registrable Securities included in such
registration statement have been sold or the offering therefor has
been terminated or (2) (x) 15 Business Days following the date on
which such registration statement was declared effective by the
SEC, if the Company is
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a WKSI and filed
an Automatic Shelf Registration Statement in satisfaction of such
demand, (y) 30 Business Days following the date on which such
registration statement was declared effective by the SEC, if the
Company is not a WKSI and registered for resale the Registrable
Securities on Form S-3 in satisfaction of such demand, or (z) 50
Business Days following the date on which such registration
statement was declared effective by the SEC, if the Company is
neither a WKSI nor then eligible to use Form S-3 and registered for
resale the Registrable Securities on Form S-1 or other applicable
form in satisfaction of such demand; provided that each
period specified in clause (2) of this sentence shall be extended
automatically by one Business Day for each Business Day that the
use of such registration statement or prospectus is suspended by
the Company pursuant to any Scheduled Black-out Period, pursuant to
Section 2(d) or pursuant to Section 5(i). Neither the Company nor
any other Person (other than any Electing Investor) shall be
entitled to include Other Securities in any registration initiated
by the Investor Representative on behalf of the Electing Investors
pursuant to this Section 2 without the prior written consent of the
Investor Representative (in the case of Other Securities of the
Company, such consent not to be unreasonably withheld, conditioned
or delayed), and upon such consent the Registrable Securities shall
have priority for inclusion in any firm commitment underwritten
offering, ahead of all Other Securities, in any Underwriter
Cutback.
(b)
If the Electing Investors intend to distribute the Registrable
Securities covered by the Investor Representative’s request
by means of an underwriting, (i) the Investor Representative shall
so advise the Company as a part of its request made pursuant to
Section 2(a) and (ii) the Investor Representative shall have the
right to appoint the book-running, managing and other
underwriter(s) in consultation with the Company.
(c)
The Company shall not be required to effect a registration pursuant
to this Section
2:
(i) after the Company has effected six registrations pursuant to
this Section 2, and each of such registrations has been declared or
ordered effective and kept effective by the Company as required by
Section 5(a); or (ii) more than twice during any single calendar
year.
(d)
Notwithstanding anything to the contrary in this Agreement, (1)
upon notice to the Investor Representative, the Company may delay
the Filing Deadline and/or the Effectiveness Deadline with respect
to, or suspend the effectiveness or availability of, any
registration statement for up to 90 days in the aggregate in any
12-month period (a “ Suspension Period ”) if the
Board of Directors of the Company determines that there is a valid
business purpose for delay of filing or effectiveness of, or
suspension of, the registration statement; provided that (i)
any suspension of a registration statement pursuant to Section 6(b)
shall be treated as a Suspension Period for purposes of calculating
the maximum number of days of any Suspension Period under this
Section 2(d) and (ii) no Suspension Period may overlap with any
redemption pursuant to Section 6 of the Series A Certificate of
Designations or Section 6 of the Series B Certificate of
Designations through the date that is 30 Business Days following
any such redemption; and (2) upon notice to the Investor
Representative, the Company may delay the Filing Deadline and/or
the Effectiveness Deadline with respect to any registration
statement for a period not to exceed 30 days prior to the
Company’s good faith estimate of the launch date of, and 90
days after the closing date of, a Company initiated registered
offering of equity securities (including equity securities
convertible into or exchangeable for Common Stock and any offering
of equity securities that triggers rights under Section 5.3 of the
Investor Rights Agreement); provided that (i) the Company is
actively employing in good faith all commercially reasonable
efforts to launch such registered offering throughout such period,
(ii) the Investors are afforded the opportunity to include
Registrable Shares in such registered offering in accordance with
Section 3) and (iii) the right to delay or suspend the
effectiveness or available of such registration statement pursuant
to this clause (2) shall not be exercised by the Company more than
twice in any twelve-month period and not more than 90 days in the
aggregate in any twelve-month period. If the Company shall delay
any Filing Deadline pursuant to this clause (d) for more than 10
Business Days, the Investor Representative may, on behalf of the
Electing Investors, withdraw the demand therefor at any time after
such 10 Business Days so long as such delay is then continuing by
providing written notice to the Company to such effect, and any
demand so withdrawn shall not count as a demand for registration
for any purpose under this Section 2, including Section
2(c).
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3.
Piggyback Registration .
(a)
Subject to the terms and conditions of this Agreement, if at any
time following June 23, 2011, the Company files a registration
statement under the Securities Act with respect to an offering of
Common Stock or other equity securities of the Company (such Common
Stock and other equity securities collectively, “ Other
Securities ”), whether or not for sale for its own
account (other than a registration statement (i) on Form S-4, Form
S-8 or any successor forms, (ii) filed solely in connection with
any employee benefit or dividend reinvestment plan or (iii)
pursuant to a demand registration in accordance with Section 2),
then the Company shall use commercially reasonably efforts to give
written notice of such filing to the Investor Representative (for
distribution to the Investors) at least 5 Business Days before the
anticipated filing date (or such later date as it becomes
commercially reasonable to provide such notice) (the “
Piggyback Notice ”). The Piggyback Notice and the
contents thereof shall be kept confidential by the Investor
Representative, the Investors and their respective Affiliates and
representatives, and the Investor Representative and the Investors
shall be responsible for breaches of confidentiality by their
respective Affiliates and representatives. The Piggyback Notice
shall offer the Investors the opportunity to include in such
registration statement, subject to the terms and conditions of this
Agreement, the number of Registrable Securities as they may
reasonably request (a “ Piggyback Registration
”). Subject to the terms and conditions of this Agreement,
the Company shall use its commercially reasonable efforts to
include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received from the
Investor Representative written requests for inclusion therein
within 10 Business Days following receipt of any Piggyback Notice
by the Investor Representative, which request shall specify the
maximum number of Registrable Securities intended to be disposed of
by the Electing Investors and the intended method of distribution.
For the avoidance of doubt and notwithstanding anything in this
Agreement to the contrary, the Company may not commence or permit
the commencement of any sale of Other Securities in a public
offering to which this Section 3 applies unless the Investor
Representative shall have received the Piggyback Notice in respect
to such public offering not less than 10 Business Days prior to the
commencement of such sale of Other Securities. The Electing
Investors, acting through the Investor Representative, shall be
permitted to withdraw all or part of the Registrable Securities
from a Piggyback Registration at any time at least two Business
Days prior to the effective date of the registration statement
relating to such Piggyback Registration. No Piggyback Registration
shall count towards the number of demand registrations that the
Investors are entitled to make in any period or in total pursuant
to Section 2. Notwithstanding anything to the contrary in this
Agreement, the Company shall not be required to provide notice of,
or include any Registrable Securities in, any proposed or filed
registration statement with respect to an offering of Other
Securities for sale exclusively for the Company’s own account
at any time following June 23, 2016.
(b)
If any Other Securities are to be sold in an underwritten offering,
(1) the Company or other Persons designated by the Company shall
have the right to appoint the book-running, managing and other
underwriter(s) for such offering in their discretion and (2) the
Electing Investors shall be permitted to include all Registrable
Securities requested to be included in such registration in such
underwritten offering on the same terms and conditions as such
Other Securities proposed by the Company or any third party to be
included in such offering; provided , however , that
if such offering involves an underwritten offering and the managing
underwriter(s) of such underwritten offering advise the Company in
writing that it is their good faith opinion that the total amount
of Registrable Securities requested to be so included, together
with all Other Securities that the Company and any other Persons
having rights to participate in such registration intend to include
in such offering (an “ Underwriter Cutback ”),
exceeds the total number or dollar amount of such securities that
can be sold without having an adverse effect on the price, timing
or distribution of the Registrable Securities to be so included
together with all Other Securities, then there shall be included in
such firm commitment underwritten offering the number or dollar
amount of Registrable Securities and such Other Securities that in
the good faith opinion of such managing underwriter(s) can be sold
without so adversely affecting such offering, and such number of
Registrable Securities and Other Securities shall be allocated for
inclusion as follows: (x) to the extent such public offering is the
result of a registration initiated by the Company, (i) first
, all Other Securities being sold by the Company; (ii)
second , all Registrable Securities
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requested to be
included in such registration by the Electing Investors, pro rata,
based on the number of Registrable Securities beneficially owned by
such Electing Investors; and (iii) third , all Other
Securities of any holders thereof (other than the Company and the
Electing Investors) requesting inclusion in such registration, pro
rata, based on the number of Other Securities beneficially owned by
each such holder of Other Securities or (y) to the extent such
public offering is the result of a registration by any Persons
(other than the Company or the Investors) exercising a contractual
right to demand registration, (i) first , all Other
Securities owned by such Persons exercising the contractual right,
pro rata, based on the number of Other Securities beneficially
owned by each such holder of Other Securities; (ii) second ,
all Registrable Securities requested to be included in such
registration by the Electing Investors, pro rata, based on the
number of Registrable Securities beneficially owned by such
Electing Investors; and (iii) third , all Other Securities
being sold by the Company; and (iv) fourth , all Other
Securities requested to be included in such registration by other
holders thereof (other than the Company and the Electing
Investors), pro rata, based on the number of Other Securities
beneficially owned by each such holder of Other
Securities.
4.
Expenses of Registration . Except as specifically provided
for in this Agreement, all Registration Expenses incurred in
connection with any registration, qualification or compliance
hereunder shall be borne by the Company. All Selling Expenses
incurred in connection with any registration hereunder, shall be
borne by the Electing Investors in proportion to the number of
Registrable Securities for which registration was requested. The
Company shall not, however, be required to pay for expenses of any
registration proceeding begun pursuant to Section 2, the request of
which has been subsequently withdrawn by the Investor
Representative unless (a) the withdrawal is based upon a Material
Adverse Effect or material adverse information concerning the
Company that (i) the Company had not publicly disclosed in a report
filed with or furnished to the SEC at least 48 hours prior to the
request or (ii) the Company had not disclosed to any Investor
Designee in person or by telephone at the last meeting of the Board
of Directors or any committee of the Board of Directors, in each
case, at which an Investor Designee is present or at any time since
the date of such meeting of the Board of Directors and which effect
or information would reasonably be expected to result in a Material
Adverse Effect or constitute material adverse information
concerning the Company, (b) the withdrawal is made in accordance
with the last sentence of Section 2(d), or (c) the Investor
Representative agrees on behalf of the Investors to forfeit their
right to one requested registration pursuant to Section
2.
5.
Obligations of the Company . Whenever required to effect the
registration of any Registrable Securities pursuant to Section 2 or
3 of this Agreement, the Company shall, as promptly as reasonably
practicable:
(a)
Prepare and file with the SEC a registration statement (including
all required exhibits to such registration statement) with respect
to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective,
or prepare and file with the SEC a prospectus supplement with
respect to such Registrable Securities pursuant to an effective
registration statement and keep such registration statement
effective or such prospectus supplement current, in the case of a
registration pursuant to Section 2, in accordance with Section
2.
(b)
Prepare and file with the SEC such amendments and supplements to
the applicable registration statement and the prospectus or
prospectus supplement used in connection with such registration
statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement.
(c)
To the extent reasonably practicable, not less than five Business
Days prior to the filing of a registration statement or any related
prospectus or any amendment or supplement thereto, the Company
shall furnish to the Investor Representative on behalf of the
Electing Investors copies of all such documents proposed to be
filed and give reasonable consideration to the inclusion in such
documents of any comments reasonably and timely made by the
Investor Representative or its legal counsel, provided that
the
6
Company shall
include in such documents any such comments that are necessary to
correct any material miss
