REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, made as of ________, 1997, is by and between Vysis, Inc., a
Delaware corporation (the "Company"), and Amoco Technology Company, a Delaware
corporation (the "Stockholder").
This Agreement is made in connection with the registration for sale to the
public of shares of common stock, $.001 par value, of the Company (the "Common
Stock") pursuant to a registration statement on Form S-1 and any amendments
thereto (the "Registration Statement") originally filed with the Securities and
Exchange Commission (the "Commission") on October ___, 1997 (File No. 333-XXXX)
(the "Initial Public Offering").
Prior to the Initial Public Offering, the Stockholder owned approximately
100% of the issued and outstanding shares of common stock of the Company and
upon consummation of the Initial Public Offering the Stockholder will own
approximately ____% of the outstanding Common Stock.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
AFFILIATE -- Of any Person is any Person which, directly or
indirectly, controls or is controlled by or is under common control with, such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power (i) to vote 10% or more of
the securities having ordinary voting power for the election of managing general
partners or directors (or Persons holding equivalent positions) of such Person
(or, at the time extraordinary voting powers are available, to vote 10% or more
of the securities having extraordinary voting power); or (ii) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
EXCHANGE ACT - The Securities Exchange Act of 1934, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
HOLDER - The Stockholder and any Person to whom it has assigned rights
hereunder as permitted by Section 10(c).
PERSON - Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
REGISTRABLE SECURITIES - The Common Stock owned by the Stockholder on
the date hereof, Common Stock issuable to the Stockholder upon conversion of the
Company's outstanding shares of Series A Preferred Stock or Series B Preferred
Stock and any Common Stock or other securities which may be issued or
distributed in respect thereof by way of or in connection with a stock dividend
or stock split or other distribution, recapitalization, reclassification,
combination of shares, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when they cease to be owned by a Holder.
SECURITIES ACT - The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
SHELF REGISTRATION STATEMENT - A registration statement on Form S-3
filed pursuant to Rule 415 under the Securities Act.
2.(a) DEMAND REGISTRATION. In the event that following 180 days after the
effective date of the Registration Statement any Holder or Holders desire to
sell shares of Registrable Securities owned by such Holder or Holders then upon
the written request of any Holder or Holders requesting that the Company effect
the registration under the Securities Act of all or part of such Holder's or
Holders' Registrable Securities and specifying the intended method of
disposition thereof, but subject to the limitations set forth herein, the
Company will promptly give written notice of such requested registration to all
other Holders of Registrable Securities, and the Company shall file with the
Commission as promptly as practicable after sending such notice, and use its
best efforts to cause to become effective, a registration statement under the
Securities Act registering the offering and sale of:
(i) the Registrable Securities which the Company has been so requested
to register by such Holder or Holders; and
(ii) all other Registrable Securities which the Company has been
requested to register by any other Holder thereof by written request given
to the Company within 15 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 necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the
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Registrable Securities so to be registered; PROVIDED, that the Company shall
not be obligated to file a registration statement relating to any
registration request under this Section 2(a) (A) unless the aggregate
requests by the Holder or Holders for such registration cover not less than
an aggregate of 1,000,000 shares (adjusted for any stock splits, reverse
stock splits or combination of shares) or (B) with respect to more than one
such registration per calendar year; provided that a request may cover fewer
than 1,000,000 shares (but not less than 500,000 shares) if the total number
of shares of Registrable Securities then outstanding is less than 1,000,000.
A request for registration under this Section 2(a) shall not be counted for
purposes of the foregoing limitation (i) unless a registration statement has
become effective and has been kept continuously effective for the period
required under Section 4(b), (ii) if after it has become effective, use of such
registration statement is suspended by any stop order, injunction or other order
or requirement of the Commission or other governmental agency or court, (iii) if
no Registrable Securities are sold within the period during which the
registration statement has been kept continuously effective as required under
Section 4(b).
A Holder may, in connection with a request for registration under this
Section 2(a), specify that the Registrable Securities are to be sold on a
delayed or continuous basis, in which case the Company shall file a Shelf
Registration Statement with respect thereto; provided, that each of the
following conditions has been satisfied: (i) the Company is eligible to file a
registration statement on Form S-3, (ii) a period of six years has elapsed since
the effective date of the Registration Statement and (iii) the total number of
Registrable Securities outstanding constitutes 30% or less of the total number
of shares of Common Stock outstanding.
(b) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering, the Company will include in such registration only
the Registrable Securities requested to be included in such registration. In
the event that the number of Registrable Securities requested to be included in
such registration exceeds the number which, in the opinion of such managing
underwriter, can be sold, the number of such shall be allocated first to the
Stockholder and its Affiliates, and then pro rata among all other requesting
Holders on the basis of the
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relative number of shares of Registrable Securities originally requested to
be included by each such Holder.
(c) LIMITATION ON REGISTRATION RIGHTS.
(i) If a request for registration pursuant to Section 2(a) hereof is
made within 30 days prior to the conclusion of the Company's then current
fiscal year, or within 40 days after the end of a fiscal year, the Company
shall not be required to file a registration statement until such time as
the Company receives its audited financial statements for such fiscal year.
(ii) The Company shall be entitled to postpone for a reasonable period
of time (not to exceed 90 days, which may not thereafter be extended
without the mutual agreement of the Company and the Holder or Holders
requesting registration) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 2(a) hereof if,
at the time it receives a request for such registration, (w) the Company is
conducting or about to conduct an offering of any class of its securities
and the Company is advised by the investment banker or financial advisor
engaged by the Company to advise the Company thereon that such offering
would be affected adversely by the registration so demanded and the Company
shall have furnished to the Holder or Holders of Registrable Securities
requesting such registration an Officers' Certificate to that effect,
(x) the Company is in possession of material information that has not been
disclosed to the public and the Company deems it advisable not to disclose
such information in the registration statement, (y) the Company is engaged
in any active program for repurchase of its Common Stock or (z) the board
of directors of the Company shall determine in good faith that such
offering will interfere with a pending or contemplated financing, merger,
acquisition, sale of assets, recapitalization or other similar corporate
action of the Company and the Company shall have furnished to the Holder or
Holders of Registrable Securities requesting such registration an Officers'
Certificate to that effect. The Company may only exercise its right to
postpone the filing of registration statement under this Section 2(c)(ii)
once in any calendar year. In the event of the exercise by the Company of
such postponement right, it shall furnish the requesting Holders with an
estimate as to when the circumstances permitting the Company to postpone
such filing shall cease to exist and thereafter give the Holders prompt
notice of such cessation. After such period of postponement the Company
shall effect such registration as promptly as practicable without further
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request from the Holder or Holders of Registrable Securities, unless such
request has been withdrawn.
(iii) Except as otherwise provided herein, any request by a Holder or
Holders for registration of Registrable Securities pursuant to Section 2(a)
hereof, which is subsequently withdrawn prior to the registration statement
becoming effective, shall not constitute a registration statement for
purposes of determining the number of registrations to which the Holder of
such Registrable Securities is entitled pursuant to Section 2(a); PROVIDED,
HOWEVER, that the Holder of such Registrable Securities shall reimburse the
Company for all expenses incurred, including, without limitation,
reasonable fees and expenses of the Company's attorneys, accountants and
investment bankers, in connection with the preparation and filing, if
filed, of such registration statement, unless such withdrawal is the result
of a postponement by the Company under Section 2(c)(ii).
(d) In connection with any request for registration under this Section 2
involving an underwritten offering, the requesting Holders shall have the right
to select the underwriter or underwriters with the consent of the Company, which
consent shall not be unreasonably withheld.
3.(a) INCIDENTAL REGISTRATION. If the Company shall at any time propose to
file a registration statement under the Securities Act for an offering of Common
Stock of the Company for cash (other than an offering relating to (i) a business
combination that is to be filed on Form S-4 under the Securities Act (or any
successor form thereto) or (ii) an employee benefit plan or (iii) securities of
the Company convertible into Common Stock where no separate consideration is
received by the Company for such Common Stock), the Company shall provide prompt
written notice of such proposal to all Holders of Registrable Securities of its
intention to do so and of such Holders' rights under this Section 3 and shall
use its reasonable efforts to include such number or amount of Registrable
Securities in such registration statement, which the Company has been so
requested to register by the Holders thereof, which request shall be made to the
Company within 10 business days after the Holder receives notice from the
Company of such proposed registration; PROVIDED, that (i) if, at any time after
giving written notice of its intention to register any 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
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(but not from its obligation to pay the registration expenses referred to in
Section 5 incurred in connection therewith), and (ii) if such registration
involves an underwritten offering, all Holders of Registrable Securities
requesting to be included in the Company's registration must sell their
Registrable Securities to the underwriters selected by the Company on the
same terms and conditions as apply to the Company, with such differences,
including any with respect to indemnification and liability insurance, as may
be customary or appropriate in combined primary and secondary offerings. The
Holders shall have the right to revoke their election to have their shares
included in such registration at any time prior to the filing of the
registration statement.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant to
this Section 3 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities to
be included in such registration exceeds the number which can be sold in such
offering, so as to be likely to have a significant adverse effect on such
offering as contemplated by the Company (including the price, timing or
distribution of which the Company proposes to sell such securities), then the
Company will include in such registration (i) first, 100% of the securities the
Company proposes to sell, (ii) second, to the extent of the number of
Registrable Securities requested to be included in such registration which, in
the opinion of such managing underwriter, can be sold without having the
significant adverse effect referred to above, the number of Registrable
Securities which the Holders have requested to be included in such registration,
such amount to be allocated first to the Stockholder and its Affiliates, and
then pro rata among all requesting Holders on the basis of the relative number
of shares of Registrable Securities initially requested to be included by each
such Holder.
4. REGISTRATION PROCEDURES. Whenever a Holder or Holders have requested
that any Registrable Securities be registered pursuant to this Agreement, the
Company will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities (which shall be effected within 30
days of a request in the case of a registration under Section 2(a)) and use
its best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to the counsel
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selected by the Holders of a majority of the Registrable Securities covered
by such registration statement copies of all such documents proposed to be
filed, which documents shall be subject to review of such counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for such period as is necessary to complete the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement;
PROVIDED, HOWEVER, that such period shall not exceed 90 days unless the
registration statement is a Shelf Registration Statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things that may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act,(i) of the occurrence of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein, in light of the circumstances under which made, not
misleading, and at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a
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material fact or omit to state any fact necessary to make the statements
therein, in light of the circumstances under which made, not misleading;
or (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the registration statement for
offering or sale in any jurisdiction, or of the institution or threatening
of any proceedings for any of such purposes; PROVIDED, HOWEVER, that
the Company shall not be required to notify a seller of Registrable
Securities of the occurrence of any event described in clause (i) hereof
that relates to a prospectus contained in a Shelf Registration Statement
unless within the 30 days prior thereto the seller has given the Company
notice of its intention to offer or sell Registrable Securities pursuant
to Section 5(e) below;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which securities issued by the Company that are of
the same class as the Registrable Securities are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(h) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent certified public
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(i) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the sellers thereof to consummate the disposition of such Registrable
Securities;
(j) obtain a "cold comfort" letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
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majority of the Registrable Securities being sold reasonably request;
(k) if underwriters are engaged by the Company in connection with any
registration referred to in this Agreement (such underwriters shall be
reasonably satisfactory to the Holders of a majority of the Registrable
Securities covered by such registration), the Company shall provide
indemnification, representations, covenants, opinions and other assurance
to the underwriters in form and substance reasonably satisfactory to such
underwriters; and
(l) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
(m) obtain an opinion of outside counsel (or inside counsel if
satisfactory to each underwriter) for the Company covering such matters of
the type customarily covered in opinions of issuer's counsel as the seller
or sellers of a majority of the Registrable Securities being sold
reasonably request;
(n) file the reports required by the Exchange Act for companies
registered under such act and otherwise comply with all applicable rules
and regulations of the Commission;
(o) keep the sellers advised as to the initiation and progress of any
demand or other registration; and
(p) promptly deliver to the Holders copies of all public announcements
made by the Company regarding disposition, acquisitions or other material
transactions involving the Company.
5. HOLDERS' OBLIGATIONS IN REGISTRATION.
(a) Each Holder agrees, that, upon receipt of notice of an event
described in Section 4(e) above, such Holders will immediately discontinue
disposition of the Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by
Section 4(e) or until it is advised in writing by the Company that the use
of the prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in the
prospectus. If so directed by the Company, such Holder will, or will
request the managing underwriter or agent, if
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any, to deliver to the Company at the Company's expense all copies
(other than permanent file copies) then in such Holder's possession, of
the prospectus covering such Registrable Securities current at the time
of receipt of such notice.
(b) In respect of a registration pursuant to this Agreement, each
Holder of Registrable Securities covered by a registration statement shall
advise the Company immediately if such Holder knows or becomes aware of any
matter which such Holder believes may result in the inclusion in a
prospectus contained in such registration statement of an untrue statement
of a material fact or the omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
shall promptly notify the Company and assist the Company in preparation and
filing with the Commission of any such amendments or supplements to said
registration statement that may be necessary or appropriate to permit the
prospectus included therein to be used under the Securities Act during the
period during which the prospectus must be delivered in connection with the
offering and sale of the Registrable Securities.
(c) The Company may require each Holder of Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities and
such other information relating to the Holder and its ownership of
Registrable Securities as the Company may from time to time reasonably
request and each Holder agrees to furnish the Company with such information
and to cooperate with the Company as necessary to enable the Company to
comply with the provisions of this Agreement.
(d) In the case of any underwritten public offering by the Company of
any shares of Common Stock or securities convertible into shares of Common
Stock, each Holder of Registrable Securities agrees, if and to the extent
requested in writing by the managing underwriter of such offering, not to
effect any public sale or distribution of the Common Stock of the Company
(except as part of such underwritten offering), during the period ending on
the earlier of (i) 90 days after the effective date of the registration
statement relating to such underwritten public offering and (ii) the date
such sale or distribution is permitted by such managing underwriter.
(e) In the event that a Shelf Registration Statement has been filed and
declared effective with respect to any Registrable Securities, the Holder
of such Registrable
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Securities agrees to notify the Company of any proposed offer or sale
thereof at least two business days prior to the proposed offer or sale.
Such notice shall include such information relating to the Holder and
the proposed distribution of Registrable Securities by the Holder as shall
be required to be included in the prospectus, to the extent such
information has not already been included therein. If within such two
business day period the Company advises the Holder furnishing such notice
that the Company is in possession of material information that has not been
disclosed to the public and the Company deems it advisable not to disclose
such information in the prospectus, then the Holder furnishing such notice
shall postpone the contemplated offering or sale until the earlier to occur
of (i) the date as of which the Company is no longer in possession of such
undisclosed material information (notice of which the Company agrees to
promptly furnish to the Holder)or (ii) the date which is 30 days following
the receipt by the Company of the notice of proposed offer or sale. A
Holder furnishing a notice of proposed offer or sale to the Company
pursuant to this Section 5(e) shall promptly notify the Company of the
termination of such offering or completion of such sale.
6. REGISTRATION EXPENSES. All expenses incidental to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other persons retained by the Company, including, without limitation, all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties, the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which securities
issued by the Company that are of the same class as the Registrable Securities
are then listed will be borne by the Company, except that underwriting discounts
and commissions relating to the sale of Registrable Securities will be the
responsibility of each seller, and each seller shall be responsible for all fees
and disbursements of their own counsel.
7. TERM. This Agreement shall terminate at such time as the shares of
Registrable Securities owned by the Holders of Registrable Securities constitute
less than 5% of the issued and outstanding shares of Common Stock of the
Company.
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8. INDEMNIFICATION. The provisions of this Section 8 shall be applicable
in respect of each registration pursuant to this Agreement.
(a) The Company shall hold harmless and indemnify each Holder of
Registrable Securities, any underwriter or agent participating in an offering
and their respective Affiliates (including any director, officer, employee,
agent or controlling Person of any of the foregoing), from and against all
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees and expenses of investigation) incurred by such indemnified
party pursuant to any actual or threatened third-party action, suit, proceeding
or investigation (including reasonable attorneys' fees and expenses of
investigation) arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same arise out of or are based upon any such
untrue statement or omission based upon information with respect to such Holder
furnished in writing to the Company by such Holder expressly for use therein.
(b) In connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish to the
Company in writing such information, as the Company reasonably requests for use
in connection with any such registration statement or prospectus, and shall
severally and not jointly hold harmless and indemnify each other Holder of
Registrable Securities, any underwriter or agent participating in an offering,
the Company and its Affiliates (including any director, officer, employee,
agent, or controlling Person of each of the foregoing) from and against any
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees and reasonable expenses of investigation) incurred by such
indemnified party pursuant to any actual or threatened third-party action, suit,
proceeding or investigation (including reasonable attorneys' fees and expenses
of investigation) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in case of a prospectus, in the light
of the circumstances under which they were made) not misleading, to the extent,
but only to the extent, that such untrue statement or omission is contained in
or failed to be contained in any information with respect to such Holder
furnished in writing by
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such Holder specifically for inclusion in any prospectus or registration
statement; PROVIDED, HOWEVER, that the liability of such indemnifying party
under this Section 8(b) shall be limited to the amount of net proceeds
received by such indemnifying party in the offering giving rise to such
liability.
(c) The obligation of the Company under Section 8(a) and of the Holders
of Registrable Securities under Section 8(b) to hold harmless and indemnify
any underwriter or agent who participates in an offering or any of their
respective Affiliates shall be conditioned on the underwriting or agency
agreement containing an agreement by such underwriter or agent to hold
harmless and indemnify each of the Company, the Holders of Registrable
Securities participating in the offering, and their respective Affiliates
(including any director, officer, employee, agent, or controlling Person of
each of the foregoing) from and against any losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees and expenses
of investigation) incurred by such indemnified parties pursuant to any actual
or threatened third-party action, suit, proceeding or investigation
(including reasonable attorneys' fees and expenses of investigation) arising
out of or based upon any untrue or alleged untrue statement of a material
fact contained in any registration statement, any amendment or supplement
thereof, any prospectus or preliminary prospectus or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained or
failed to be contained in any information with respect to such underwriter or
agent furnished in writing by such underwriter or agent specifically for
inclusion in any prospectus or registration statement.
(d) The indemnity provisions in Sections 8(a) and 8(b) above are subject to
the condition that, insofar as they relate to any untrue statement (or alleged
untrue statement) or omission (or alleged omission) made in a preliminary
prospectus or prospectus but eliminated or remedied in any amended prospectus,
such indemnity provisions shall not inure to the benefit of any indemnified
Person, if the Company has previously and in a timely manner delivered
sufficient copies of such amended prospectus to such indemnified Person and if a
copy of such amended prospectus required to be sent or given in accordance with
any applicable law or regulation was not furnished by such indemnified Person to
the person asserting the loss, liability, claim or damage.
(e) Promptly after receipt by an indemnified party under this Section 8 of
any notice of the commencement of any lawsuit or other proceeding or
investigation thereof, such indemnified party will, if a claim in respect
thereof is to be made against
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the indemnifying parties hereunder, notify in writing the indemnifying
parties of the commencement thereof; but the omission so to notify the
indemnifying parties will not relieve the indemnifying parties from any
liability which they may have to any indemnified party, unless such failure
to notify is materially prejudicial to the indemnifying parties and
materially increases their risk of loss. In case any such lawsuit or other
proceeding or investigation shall be brought against any indemnified party
and such indemnified party shall notify the indemnifying parties of the
commencement thereof, the indemnifying parties shall be entitled to
participate therein and, unless in the opinion of counsel to the indemnified
party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to the extent that it shall wish,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying parties in such action). In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel,(ii) the
indemnifying parties shall have failed to assume the defense of such action
or proceeding or shall have failed to employ counsel reasonably satisfactory
to such indemnified party in any action or proceeding; or (iii) the named
parties (including any impleaded parties) to any such action or proceeding
include both such indemnified party and the indemnifying parties, and such
indemnified party shall have been advised by counsel in writing (with a copy
to the indemnifying parties) that there may be one or more defenses available
to such indemnified party or other indemnified parties or other indemnified
parties which are different from or additional to those available to the
indemnifying parties, then, such separate counsel shall be at the expense of
the indemnifying parties and the indemnifying parties shall not have the
right to assume the defense of such action or proceeding on behalf of such
indemnified person. After notice from the indemnifying parties to such
indemnified party of their election so to assume the defense thereof, and
provided that the exception in the foregoing sentence does not apply, the
indemnifying parties shall not be liable to such indemnified party under
these indemnification provisions for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. In any event, unless there exists a conflict among
indemnified parties, the indemnifying parties shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or
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circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time for all such indemnified parties. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding. The indemnifying parties shall not be subject to any
liability for any settlement made without their consent.
(f) In order to provide for the just and equitable contribution in
circumstances under which the indemnity provided for in this Section 8 is for
any reason held to be unenforceable by the indemnified parties though applicable
in accordance with its terms, each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses of a nature contemplated by such indemnity in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnifying parties and the indemnified parties, but also to reflect the
relative fault of the indemnifying and indemnified parties in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations;
PROVIDED, HOWEVER, that no Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything in this subsection (f) to the
contrary, no Holder shall be required to contribute any amount in excess of the
net proceeds received by such Holder from the offering to which the losses,
claims, damages, liabilities or expenses relate.
The relative fault of such indemnifying and indemnified parties shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact, or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses incurred by such party in
connection with investigating or defending such claim
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9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may participate
in any registration hereunder that is underwritten unless such person (a) agrees
to sell such person's securities on the basis provided in any underwriting
arrangements approved by the person or persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
(a) REMEDIES. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
(b) AMENDMENT AND WAIVERS. The provisions of this Agreement may be amended
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company has obtained the
written consent of the Stockholder and its Affiliates (to the extent they are
holders of Registrable Securities) and of Holders of at least 50% of the
Registrable Securities held by any other Persons.
(c) SUCCESSORS AND ASSIGNS. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and permitted assigns of the parties hereto whether
so expressed or not. A Holder shall be permitted to assign its rights hereunder
to any Person to whom it transfers any Registrable Securities in a transaction
not involving any public offering, provided that (A)(i) the number of
Registrable Securities so transferred is not less than 1,000,000 shares
(adjusted for any stock split, reverse stock split or combination of shares) and
(ii) the assignee agrees with the Company in writing to be bound by the
provisions of this Agreement or (B) such Person is an Affiliate of Stockholder.
(d) SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(e) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the
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signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(f) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(g) GOVERNING LAW. The General Corporation Law of Delaware will govern all
issues concerning the relative rights of the Company and the Holders of
Registrable Securities. All other questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto will be governed by the internal law, and not the law of conflicts, of
the State of Delaware.
(h) NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally or two
days after deposit in the mail, certified or registered mail, return receipt
requested and postage prepaid, to the recipient. Such notices, demands and
other communication will be sent to the Stockholder initially as set forth below
and to each other Holder of Registrable Securities at such Holder's address as
it appears in the records of the Company (unless otherwise indicated by any such
Holder to the Company in writing) and to the Company at its principal executive
offices.
For ATC: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: President
with a copy to: Amoco Corporation
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Attorney --
Corporate Law Department
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
VYSIS, INC.
By:____________________________________
Name:_______________________________
Title:______________________________
AMOCO TECHNOLOGY COMPANY
By:____________________________________
Name:_______________________________
Title:______________________________
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