EXECUTION COPY
===============================================================================
$172,500,000
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
Dated as of March 1, 2000
by and among
INVITROGEN CORPORATION
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
CHASE SECURITIES INC.
XXXX XXXXXXXX INCORPORATED
U.S. BANCORP XXXXX XXXXXXX INC.
===============================================================================
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of March 1, 2000 by and among Invitrogen Corporation, a Delaware
corporation (the "COMPANY"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Bear, Xxxxxxx & Co. Inc., Chase Securities Inc., Xxxx Xxxxxxxx
Incorporated and U.S. Bancorp Xxxxx Xxxxxxx Inc. (each an "INITIAL PURCHASER"
and collectively, the "INITIAL PURCHASERS"). The Company proposes to issue and
sell to the Initial Purchasers (the "INITIAL PLACEMENT") $150,000,000 in
aggregate principal amount of its 5 1/2% Convertible Notes due 2007 (the "FIRM
CONVERTIBLE NOTES"). The Company also proposes to issue and sell to the Initial
Purchasers not more than $22,500,000 in agregate principal amount of its 5 1/2%
Convertible Subordinated Notes due 2007 (the "ADDITIONAL CONVERTIBLE NOTES" and,
together with the Firm Convertible Notes, the "NOTES"). As an inducement to the
Initial Purchasers to enter into the purchase agreement, dated as of February
25, 2000 (the "PURCHASE AGREEMENT"), and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company agrees with the Initial
Purchasers, (i) for the benefit of the Initial Purchasers and (ii) for the
benefit of the holders from time to time of the Notes whose names appear in the
register maintained by the Registrar in accordance with the provisions of the
Indenture (as defined in Section 1 hereof) (including the Initial Purchasers),
as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGREEMENT" means this Registration Rights Agreement.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, par value $0.01 per
share, issuable upon the conversion of the Notes.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"HOLDER" has the meaning set forth in Section 2 hereof.
"INDENTURE" means the Indenture, dated as of February March 1, 2000,
between the Company and the Trustee, relating to the Notes, as the same may be
amended from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"LOSSES" has the meaning set forth in Section 7(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate
principal amount of securities registered under a Shelf Registration Statement.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of Transfer Restricted Securities covered by such Shelf
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"SHELF REGISTRATION" means a registration effected pursuant to Section 3
hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 3
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 3 hereof that covers some or
all of the Transfer Restricted Securities as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, and in each case, including the Prospectus contained
therein, all exhibits thereto and all material incorporated therein by
reference.
"SUPPLEMENTAL DELAY PERIOD" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities of any notice from the
Company of the existence of any fact or event of the kind described in Section
4(b)(2) hereof and ending on the date of receipt by such Holder of an amended or
supplemented Shelf Registration Statement or Prospectus, as contemplated by
Section 4(h) hereof, or the receipt by such Holder of written notice from the
Company (the "ADVICE") that the use of the Prospectus may be resumed, and the
receipt of copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
"TRANSFER RESTRICTED SECURITIES" means each Note and the Common Stock
issuable upon conversion thereof until (i) the date on which such Note or the
Common Stock issuable upon conversion thereof has been effectively registered
under the Act and disposed of in accordance with the Shelf Registration
Statement, (ii) the date on which such Note or Common Stock issuable upon
conversion thereof is distributed to the public pursuant to Rule 144 under the
Act (or any similar provision then in effect) or is salable pursuant to Rule
144(k) under the Act or (iii) the date on which such Note or the Common Stock
issuable upon conversion thereof ceases to be outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
"UNDERWRITER" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such person becomes the registered holder of such
Transfer Restricted Securities under the Indenture and includes broker-dealers
that hold Transfer Restricted Securities (i) as a result of market making
activities
2
and other trading activities and (ii) which were acquired directly from the
Company or an Affiliate of the Company.
SECTION 3. SHELF REGISTRATION
The Company shall within 90 days of the date of original issuance of the
Notes, file with the Commission and thereafter shall use its reasonable best
efforts to cause to be declared effective under the Act on or prior to 180 days
(plus any additional days allowed as a result of a Supplemental Delay Period)
after the date of original issuance of the Notes, a Shelf Registration Statement
relating to the offer and sale of the Transfer Restricted Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement.
The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date of
original issuance of the Notes or such shorter period that will terminate when
(i) all the Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement, (ii) the
date on which, in the opinion of counsel to the Company, all of the Transfer
Restricted Securities then held by the Holders may be sold by such Holders in
the public United States securities markets in the absence of a registration
statement covering such sales or (iii) the date on which there ceases to be
outstanding any Transfer Restricted Securities (in any such case, such period
being called the "SHELF REGISTRATION PERIOD"). The Company shall be deemed not
to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such securities during that period,
unless (i) such action is required by applicable law, (ii) such action is taken
by the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly thereafter complies with
the requirements of Section 4(h) hereof, if applicable or (iii) such action is
taken because of any fact or circumstance giving rise to a Supplemental Delay
Period.
SECTION 4. REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) The Company shall ensure that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects with the Act
and the rules and regulations thereunder, (ii) any Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, contain 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 and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(b) (1) The Company shall advise the Initial Purchasers and the
Holders of Transfer Restricted Securities named in any Shelf Registration
Statement that have provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by the Initial Purchasers or
any such Holder, confirm such advice in writing when a Shelf Registration
Statement and any amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective amendment thereto has
become effective.
3
(2) The Company shall advise the Initial Purchasers and the
Holders of Transfer Restricted Securities named in any Shelf Registration
Statement, which have provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
(i) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(ii) of the initiation by the Commission of proceedings relating
to a stop order suspending the effectiveness of the Shelf Registration
Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the existence of any fact and the happening of any event
(including, without limitation, pending negotiations relating to, or the
consummation of, a transaction or the occurrence of any event which would
require additional disclosure of material non-public information by the
Company in the Shelf Registration Statement as to which the Company has a
bona fide business purpose for preserving confidential or which renders
the Company unable to comply with Commission requirements) that, in the
opinion of the Company, makes untrue any statement of a material fact
made in its Shelf Registration Statement, the Prospectus or any amendment
or supplement thereto or any document incorporated by reference therein
or requires the making of any changes in the Shelf Registration Statement
or the Prospectus so that, as of such date, the statements therein are
not misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading.
Such advice may be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made.
(c) The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Shelf Registration Statement at
the earliest possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder named in any Shelf Registration Statement who so requests in writing and
who has provided to the Company an address for notices, without charge, at least
one conformed copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and, if the Holder so requests
in writing, all exhibits and schedules (including those incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities named in any Shelf Registration
Statement and who has provided to the Company an address for notices, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
contained in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; subject to any notice by the
Company in accordance with Section 5(b) hereof, the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders for the purposes of offering and resale
4
of the Transfer Restricted Securities covered by the Prospectus in accordance
with the applicable regulations promulgated under the Act.
(f) Prior to any offering of Transfer Restricted Securities pursuant
to any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of Transfer Restricted Securities named therein and
their respective counsel in connection with the registration or qualification of
such Transfer Restricted Securities for offer and sale under the securities or
blue sky laws of such jurisdictions of the United States as any such Holders
reasonably request in writing not later than the date that is five business days
prior to the date upon which this Agreement specifies that the Shelf
Registration Statement shall become effective; PROVIDED, HOWEVER, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general or unlimited service of process or to taxation in any such
jurisdiction where it is not then so subject.
(g) The Company shall endeavor to cooperate with the Holders of
Transfer Restricted Securities to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold pursuant
to any Shelf Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in writing at
least two business days prior to sales of securities pursuant to such Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraph
4(b)(2)(v) hereof, the Company shall promptly prepare a post-effective amendment
to any Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that as thereafter delivered
to purchasers of the Transfer Restricted Securities covered thereby, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED that
in the event of a material business transaction (including, without limitation,
pending negotiations relating to such a transaction) which would, in the opinion
of counsel to the Company, require disclosure by the Company in the Shelf
Registration Statement of material non-public information for which the Company
has a bona fide business purpose for not disclosing, then for so long as such
circumstances exist, the Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder.
(i) Not later than the effective date of any such Shelf Registration
Statement hereunder, the Company shall cause to be provided a CUSIP number for
the Notes registered under such Shelf Registration Statement, and provide the
applicable trustee with certificates for such Notes in a form eligible for
deposit with The Depository Trust Company.
(j) The Company shall make generally available to its security holders
in a regular filing on Form 10-Q or 10-K an earnings statement satisfying the
provisions of Rule 158 (which need not be audited) for the twelve-month period
commencing after effectiveness of the Shelf Registration Statement.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(l) The Company may require each Holder of Transfer Restricted
Securities, which are to be sold pursuant to any Shelf Registration Statement,
to furnish to the Company within 20 business days after written request for such
information has been made by the Company, such information regarding the Holder
and the distribution of such securities as the Company may from time to time
reasonably require for inclusion in such Shelf Registration Statement and such
other information as may be
5
necessary or advisable in the reasonable opinion of the Company and its
counsel, in connection with such Shelf Registration Statement. No Holder of
Transfer Restricted Securities shall be entitled to the benefit of any
Special Interest (as set forth in the Notes) under the Indenture and the
Notes or be entitled to use the Prospectus unless and until such Holder shall
have furnished the information required by this Section 4(l) and all such
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
(m) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Majority Holders reasonably agree should be
included therein in order to effect their distribution of the Notes and shall
make all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that the
Company shall not be required to take any action pursuant to this Section 4(m)
that would, in the opinion of counsel for the Company, violate applicable law or
to include information the disclosure of which at the time would have a material
adverse effect on the business or operations of the Company and/or its
subsidiaries, as determined in good faith by the Company.
(n) The Company shall enter into such agreements and take all other
reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification and contribution provisions and procedures no
less favorable than those set forth in Section 7 (or such other provisions and
procedures acceptable to the Majority Holders), with respect to all parties to
be indemnified pursuant to Section 7.
(o) The Company shall upon receipt of a reasonable request in writing
therefor:
(i) make reasonably available at reasonable times prior to the
effectiveness of the related Shelf Registration Statement for inspection
by representatives of the Holders of Transfer Restricted Securities to be
registered thereunder and any attorney, accountant or other agent
retained by such Holders, at the office where normally kept during normal
business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause
the Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders' attorneys, accountants
or other agents in connection with any such Shelf Registration Statement
as is customary for similar due diligence examinations; PROVIDED,
HOWEVER, that the foregoing inspection and information gathering shall be
coordinated by one counsel designated by the Holders and that such
persons shall first agree in writing with the Company that any
information that is designated in writing by the Company, in good faith,
as confidential at the time of delivery of such information shall be kept
confidential by such person, unless such disclosure is made in connection
with a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Majority Holders), addressed to each
selling Holder named in the Shelf Registration Statement covering such
matters (in form, scope and substance) as those matters set forth in
Section 9(e) of the Purchase Agreement;
(iii) obtain "cold comfort" letters (or, in the case of any
person that does not satisfy the conditions for receipt of a "cold
comfort" letter specified in Statement on Auditing Standards
6
No. 72, an "agreed-upon procedures letter") and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to
each selling Holder of Transfer Restricted Securities registered
thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(iv) deliver such documents and certificates as may be
reasonably requested by the Majority Holders, including those to evidence
compliance with Section 4(h).
The foregoing actions set forth in clauses (ii), (iii) and (iv) of
this Section 4(o) shall be performed upon the effectiveness of such Shelf
Registration Statement and the effectiveness of each post-effective
amendment thereto.
(v) The Company may offer securities of the Company other than
the Notes under the Shelf Registration Statement, except where such offer
would conflict with the terms of the Purchase Agreement.
SECTION 5. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities severally but not jointly,
by the acquisition of such Transfer Restricted Securities, agrees:
(a) To furnish the information required to be furnished pursuant to
Section 4(l) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a
Supplemental Delay Period, it will keep the fact of such notice confidential,
forthwith discontinue disposition of its Transfer Restricted Securities pursuant
to the Shelf Registration Statement, and will not deliver any Prospectus forming
a part thereof until receipt of the amended or supplemented Shelf Registration
Statement or Prospectus, as applicable, as contemplated by Section 4(h) hereof,
or until receipt of the Advice. If a Supplemental Delay Period should occur, the
Shelf Registration Period shall be extended by the number of days of which the
Supplemental Delay Period is comprised; PROVIDED that the Shelf Registration
Period shall not be extended if the Company has received an opinion of counsel
(which counsel, if different from counsel to the Company referred to in Section
9(e) of the Purchase Agreement, shall be reasonably satisfactory to the Majority
Holders of the Transfer Restricted Securities named in the Shelf Registration
Period and which opinion shall be in writing) to the effect that the Transfer
Restricted Securities can be freely tradable without the continued effectiveness
of the Shelf Registration Statement.
(c) If so directed by the Company in a notice of the commencement of a
Supplemental Delay Period, each Holder of Transfer Restricted Securities will
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 the Transfer Restricted Securities.
(d) Sales of such Transfer Restricted Securities pursuant to a Shelf
Registration Statement shall only be made in the manner set forth in such
currently effective Shelf Registration Statement.
SECTION 6. REGISTRATION EXPENSES
7
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 3 and 4 hereof and will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection with any Shelf Registration Statement. Notwithstanding the foregoing
or anything in this Agreement to the contrary, each Holder shall pay all
underwriting discounts and commission of any underwriters with respect to any
Transfer Restricted Securities sold by it.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with the Shelf Registration Statement and to the
extent permitted by law, the Company agrees to indemnify and hold harmless each
Holder of Transfer Restricted Securities covered thereby (including each Initial
Purchaser), the directors, officers, employees, partners, representatives and
agents of each such Holder and each person who controls any such Holder within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an "indemnified
party") against any and all losses, claims, damages, judgments or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any Prospectus, or in any amendment thereof or supplement thereto, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
judgment, liability or action; PROVIDED, HOWEVER, that (i) the Company will not
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of, or is based upon, any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder specifically for inclusion therein and (ii) the
Company will not be liable to any indemnified party under this indemnity
agreement with respect to the Shelf Registration Statement or Prospectus to the
extent that any such loss, claim, damage or liability of such indemnified party
results solely from an untrue statement of a material fact contained in, or the
omission of a material fact from, the Shelf Registration Statement or
Prospectus, which untrue statement or omission was corrected in an amended or
supplemented Shelf Registration Statement or Prospectus, if the person alleging
such loss, claim, damage or liability was not sent or given, at or prior to the
written confirmation of such sale, a copy of the amended or supplemented Shelf
Registration Statement or Prospectus if the Company had previously furnished
copies thereof to such indemnified party and if delivery of a prospectus is
required by the Act and was not so made. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a Shelf
Registration Statement (including each Initial Purchaser) severally agrees to
indemnify and hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Shelf Registration Statement and (iv) each
person who controls the Company within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have. In no event shall any Holder, its directors, officers or
any person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect
8
to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section
7 or notice of the commencement of any action, the indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to assume the defense of any
such claim and to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party, and the indemnified party reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party did not employ counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party authorized the
indemnified party to employ separate counsel at the expense of the indemnifying
party. The indemnifying party shall indemnify and hold harmless the indemnified
party from and against all losses, claims, damages and liabilities by reason of
any settlement of any action (i) effected with its written consent or (ii)
effected without its written consent if the settlement is entered into more than
twenty business days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by the immediately
preceding sentence effected without its consent if such indemnifying party (i)
reimburses such indemnified party in accordance with such request to the extent
that it considers such request to be reasonable and (ii) provides written notice
to the indemnified party substantiating the unpaid balance as unreasonable, in
each case, prior to the date of settlement. An indemnifying party shall not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding for which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action), unless such settlement,
compromise or consent
9
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not
include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of the indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall to the extent permitted by law have a
joint and several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "LOSSES") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Shelf Registration Statement that resulted in such Losses; PROVIDED,
HOWEVER, that in no case shall any Initial Purchaser be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Note, as set forth in Section 2 of the Purchase Agreement.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits, but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth in Section 2 of the Purchase
Agreement and (y) the total amount of additional interest that the Company was
not required to pay as a result of registering the securities covered by the
Shelf Registration Statement that resulted in such Losses. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth in Section 2 of the Purchase Agreement,
and benefits received by any other Holders shall be deemed to be equal to the
value of the Transfer Restricted Securities sold by such Holders under the Shelf
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the indemnifying party, on the one hand, or by the indemnified party, on the
other hand. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Shelf Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d). The obligations of each Holder and each Initial Purchaser hereunder are
several and not joint.
(e) The provisions of this Section 7 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive the sale by a Holder of Transfer
Restricted Securities or Exchange Notes.
10
SECTION 8. RULE 144A and RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 9. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Notes; PROVIDED, HOWEVER, that with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to depart from the provisions hereof, with respect
to a matter, which relates exclusively to the rights of Holders whose securities
are being sold pursuant to a Shelf Registration Statement and does not directly
or indirectly affect the rights of other Holders, may be given by the Majority
Holders, determined on the basis of Notes being sold rather than registered
under such Shelf Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section
9(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture
(ii) with a copy in like manner to Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation;
(iii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iv) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
11
Upon the date of filing of a Shelf Registration Statement notice shall be
delivered to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, on behalf of
the Initial Purchasers (in the form attached hereto as Exhibit A) and shall be
addressed to: Attention: Xxxxxx Xxxxxxxx ( Compliance Department), 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of, and be binding upon, the successors and assigns of each of the parties
hereto, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Notes. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Notes and any such Holder
may specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State (without reference to the
conflict of law rules thereof).
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) NOTES HELD BY THE COMPANY, ETC. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Notes is required
hereunder, Notes held by the Company or its Affiliates (other than subsequent
Holders of Notes if such subsequent Holders are deemed to be Affiliates solely
by reason of their holdings of such Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto with respect
to the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INVITROGEN CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President & CFO
13
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
CHASE SECURITIES INC.
XXXX XXXXXXXX INCORPORATED
U.S. BANCORP XXXXX XXXXXXX INC.
BY: XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
14
EXHIBIT A
NOTICE OF FILING OF
SHELF REGISTRATION STATEMENT
To: Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx (Compliance Department)
Fax: (000) 000-0000
From: Invitrogen Corporation
__% Convertible Subordinated Notes due 2007
Date: _________________, 2000
For your information only (NO ACTION REQUIRED):
Today, _______________, 2000, we filed a Shelf Registration Statement with the
Securities and Exchange Commission.
15
