REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated March 6,
2000, is entered into by and among RHEOMETRIC SCIENTIFIC, INC., a New Jersey
corporation (the "Company"), ANDLINGER CAPITAL XXVI LLC, a Delaware limited
liability company ("Investor"), and Axess Corp. ("Axess"). Investor and Axess
are sometimes referred to hereinafter individually as a "Stockholder" and
collectively as the "Stockholders."
Background
The Company, Axess and Investor are entering into a Securities Purchase
Agreement and the Company and the Stockholders are entering into a Stockholders'
Agreement, each dated the date hereof. In connection with the entry into those
agreements, and as an inducement to the Stockholders to enter into such
agreements, the Company is granting the registration rights provided in this
Agreement.
Terms
In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
I. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the Rules
promulgated under the Securities Exchange Act of 1934, as amended.
"Closing Date" means the Closing Date under the Securities Purchase
Agreement.
"Common Stock" means the common stock, no par value per share, of the
Company.
"Permitted Transferee" shall have the meaning given such term in the
Stockholders' Agreement for so long as that agreement is in effect and, when
such agreement is no longer in effect, any permitted transferee.
"Person" means a natural person, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Preferred Stock" means the Company's Convertible Redeemable Preferred
Stock, Series A, issued to Axess pursuant to the Securities Purchase Agreement.
"Registrable Securities" shall mean (i) any shares of Common Stock now
or hereafter issued to and/or owned by a Stockholder or by a Permitted
Transferee of a Stockholder, (ii) any shares of Common Stock or other securities
issued or issuable pursuant to the conversion of the Preferred Stock or the
exercise of Warrants, and (iii) any Common Stock or other securities which may
be issued or distributed in respect of such Common Stock, Preferred Stock or
Warrants by way of conversion, stock dividend or stock split, or other
distribution, recapitalization, or reclassification (including without
limitation by way of merger, consolidation, sale of assets or similar event). As
to any particular Registrable Securities, once issued, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such securities shall have been
distributed to the public pursuant to Rule 144 or 144A (or any successor
provisions) under the Securities Act, (iii) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any state securities or blue sky law
then in force, or (iv) such securities shall have ceased to be outstanding.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Stockholders' Agreement" means the Stockholders' Agreement dated the
date hereof among the Company, Investor, and Axess.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated the date hereof between the Company, Axess and Investor.
"underwritten registration or "underwritten offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Warrant" means the warrant to purchase 2,000,000 shares of Common
Stock issued to Investor pursuant to the Securities Purchase Agreement.
II. Demand Registrations
A. Upon the written request of (i) Investor, at any time after the first annual
anniversary of the Closing Date and prior to the third anniversary of Closing
Date or (ii) either Stockholder at any time after the third anniversary of the
Closing Date, requesting that the Company effect the registration under the
Securities Act of all or part of the particular requesting Stockholder's (the
"Requesting Stockholder's") Registrable Securities and specifying the intended
method of disposition thereof, the Company will, as expeditiously as possible,
use its best efforts to effect the registration under the Securities Act of (i)
the Registrable Securities which the Company has been so requested to register
by the Requesting Stockholder so as 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, however, that the Company
may delay the filing of the registration statement for up to a single 90-day
period if the Board determines that such filing should not be made due to a
valid need not to disclose confidential information or because it would
materially interfere with any material financing, acquisition, corporate
reorganization, or merger involving the Company. So long as the Company does not
breach any of its obligations in respect of the demand registration (other than
a breach which would not adversely affect the Requesting Stockholder's rights)
with respect to each holder, the Company shall only be required to comply with
two (2) requests by each Stockholder for demand registration. The Company shall
give written notice to each Stockholder other than the Requesting Stockholder of
its intention to file a registration statement pursuant to this paragraph at
least 30 days prior to the filing thereof, and if requested in writing by such
other Stockholders within 30 days after receipt of such notice, the Company will
include in such registration statement any shares of Common Stock held by the
other Stockholders and requested to be so included. All of the Stockholders
whose shares of Common Stock will be included in a registration statement
(whether a Requesting Stockholder or other Stockholder electing to participate)
pursuant to any "demand" or "piggyback" registration under this Agreement are
referred to herein as the "Participating Stockholders."
B. A registration requested pursuant to Article II(a) will not be
deemed to have been effected unless it has become effective; provided, that if,
within 135 days after it has become effective, the offering of Registrable
Securities pursuant to such registration is interfered with by any stop order,
injunction, or other order or requirement of the SEC or other governmental
agency or court prior to the sale of all the Registrable Securities registered
thereunder, such registration will be deemed not to have been effected.
Notwithstanding the preceding sentence, if any such stop order is rescinded, the
effective period shall continue upon such rescission and be extended by the
number of days by which such stop order delayed the filing.
C. The Requesting Stockholder causing the registration statement shall
have the right to select an underwriter or underwriters of nationally recognized
standing satisfactory to the Company to administer the offering.
D. A registration statement filed pursuant to this Article II may,
subject to the following provisions, include (i) shares of Common Stock for sale
by the Company for its own account and (ii) shares of Common Stock held by
persons who by virtue of agreements with the Company in compliance with the
provisions of this Article II are entitled to include such shares in such
registration (the "Other Stockholders"), in each case for sale in accordance
with the method of disposition specified by the requesting holders. If such
registration shall be underwritten, the Company and Other Stockholders proposing
to distribute their shares through such underwriting shall enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting on terms no less
favorable to the Company and such Other Stockholders than the terms afforded the
holders of Registrable Securities. If and to the extent that the managing
underwriter determines that marketing factors require a limitation on the number
of shares to be included in such registration, then the shares of Common Stock
held by Other Stockholders (other than Registrable Securities)
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and shares of Common Stock to be sold by the Company for its own account shall
be excluded from such registration to the extent so required by such managing
underwriter, and unless the holders of such shares and the Company have
otherwise agreed in writing, such exclusion shall be applied first to the shares
held by the Other Stockholders to the extent required by the managing
underwriter, then to the shares of Common Stock of the Company to be included
for its own account to the extent required by the managing underwriter. If the
managing underwriter determines that marketing factors require a limitation of
the number of Registrable Securities to be registered under this Article II
(including the Registrable Securities of a Stockholder to be registered pursuant
to the Piggyback Registration Rights of Article III hereof), then Registrable
Securities shall be excluded in such manner that the securities to be sold shall
be allocated 50% to each Stockholder. In any event all securities to be sold
other than Registrable Securities will be excluded prior to any exclusion of
Registrable Securities. If any holder of Registrable Securities or Other
Stockholder who has requested inclusion in such registration as provided above,
disapproves of the terms of the underwriting (including without limitation, the
number of shares owned by such Stockholder or Other Stockholder to be excluded
from such registration), such holder of securities may elect to withdraw
therefrom by written notice to the Company and the managing underwriter, and if
such Stockholder is the Requesting Holder, such request shall not count as one
of the Requesting Stockholder's demand registrations hereunder. Any securities
so withdrawn by a Stockholder or by an Other Stockholder shall also be withdrawn
from registration. Except for registration statements on Form X-0, X-0 or any
comparable form or successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Article II until
180 days after the effective date of such registration.
III. Piggyback Registrations.
A. If the Company at any time after the date hereof proposes to
register its Common Stock under the Securities Act (other than a registration
statement on Forms S-8 or S-4 or any similar or successor form or any other
registration statement relating to an exchange offer or an offering of
securities solely to the Company's employees or security holders), whether or
not for sale for its own account including, without limitation, as a result of
the exercise of any demand registration rights (other than demand registration
rights held by or through RSI(NJ)QRS 12-13, Inc. to the extent exercised within
one year after the date of the Agreement), whether pursuant to Article II above
or otherwise, pursuant to a registration statement on which it is permissible to
register Registrable Securities for sale to the public under the Securities Act,
it will each such time give written notice to all Stockholders of its intention
to do so at least 30 days prior to the date of filing the proposed registration
statement and of such Stockholder's rights hereunder. Upon the written request
of a Stockholder made within 25 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Stockholder), the Company will use its reasonable best efforts to effect
the registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register. If a registration requested
involves an underwritten public offering, a Participating Stockholder may elect,
in writing prior to the effective date of the registration statement filed in
connection
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with such registration, not to register such securities in connection with such
registration. The Company may terminate its efforts to register such securities,
including the Registrable Securities, at any time without liability to any
Participating Stockholder.
B. If a registration involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the amount of
securities requested to be included in such registration by all selling holders
exceeds the amount which can be sold in such offering, so as to be likely to
have an adverse effect on such offering as contemplated by the Company
(including the price at which the Company proposes to sell such securities),
then the Company will include in such registration (i) first, 100% of either (A)
the Common Stock the Company proposes to sell on a primary basis or (B) the
Common Stock a Stockholder proposes to sell upon exercise of "demand"
registration rights pursuant to Article II, (ii) second, to the extent of the
amount of Registrable Securities requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above, the amount of Registrable Securities which
the holders have requested to be included in such registration, such amount to
be allocated pro rata among holders exercising "piggyback" registration rights
on the basis of the relative number of shares of securities then held by each
such holder (provided, that any securities thereby allocated to any such holder
that exceed such holder's request will be reallocated among the remaining
requesting holders in like manner).
IV. Registration Expenses.
The Company shall be responsible for any and all expenses incident to
performance of or compliance with the registration rights set forth in this
Agreement, including, without limitation, (i) all SEC and stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses of complying with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications), (iii) all printing, messenger, and delivery
expenses, (iv) all fees and expenses incurred in connection with the listing of
the securities on any securities exchange or The Nasdaq Stock Market, (v) the
fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
reasonable fees and disbursements of one counsel selected by a majority in
interest of the Participating Stockholders to represent them in connection with
each such registration, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including liability
insurance if the Company so desires, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any.
V. Registration Procedures.
If and whenever the Company is required to use its best efforts to
effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will as expeditiously
as possible:
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A. prepare and, in any event within 60 days after the end of the period
within which all other requests for registration may be given to the Company,
file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
B. prepare and file with the SEC 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 a period not
in excess of 135 days and to comply with the provisions of the Securities Act
with respect to 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, that before filing a registration statement or prospectus,
or any amendments or supplements thereto, the Company will furnish to one
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement to represent all holders of Registrable
Securities covered by such registration statement, copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel;
C. furnish to each seller of such Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
seller;
D. use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions where such registration or qualification is
required and which seller shall reasonably request, and do any and all other
acts and things which 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, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign Company in
any jurisdiction where, but for the requirements of this clause (d), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
E. 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 seller or
sellers thereof to consummate the disposition of such Registrable Securities;
F. immediately notify the Participating Stockholders at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (b), of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein
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not misleading in the light of the circumstances then existing, and at the
request of a Participating Stockholder, prepare and furnish to such
Participating Stockholder a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing. If the Board determines that
such amended or supplemental prospectus should not be prepared and filed due to
a valid need not to disclose confidential information or because either would
materially interfere with any material financing, acquisition, corporate
reorganization, or merger involving the Company, then the Company shall have the
right, upon giving the notice under this Article V-F, to postpone such
requirement to deliver an amended or supplemental prospectus for a single 60-day
period, provided, that, (i) the period during which the Company is obligated to
keep the registration statement effective under Article V-B shall be extended by
the duration of such postponement and (ii) the Company states in such notice
that it is postponing its delivery of such amended or supplemental prospectus
pursuant to this sentence;
G. otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable (but not more than 15 months) after the effective date
of the registration statement, an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
H. use its best efforts to list such Registrable Securities on any
securities exchange (including without limitation the Nasdaq National Market) on
which the Common Stock is then listed, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of such
exchange, and to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
I. enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions customarily taken by
registrants as sellers of a majority of such Registrable Securities or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
J. use commercially reasonable efforts to obtain a "cold comfort"
letter or letters from the Company's independent public accountants in customary
form and covering matters of the type customarily covered by "cold comfort"
letters as the seller or sellers of a majority of such Registrable Securities
shall reasonably request; and
K. make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant, or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents, and properties of the Company, and cause all of
the Company's officers,
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directors, and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant, or agent in connection with such
registration statement.
As a condition to the Company's obligation under this Article V to
cause a registration statement or an amendment to be filed, or Common Stock to
be included in the registration statement, each Participating Stockholder shall
provide such information and execute such documents (including any customary
agreement or undertaking relating to expenses, indemnification or other matters
to the extent consistent with the provisions of this Agreement) as may
reasonably be required by the Company in connection with such registration. In
addition, Participating Stockholders shall provide counsel for the Company with
such documents and information as may be reasonably requested by counsel for the
Company.
VI. Indemnification.
A. In the event of any registration of any securities of the Company
under the Securities Act, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, all Participating Stockholders,
each of their affiliates, and their respective directors and officers, general
and limited partners or members (and the directors, officers, affiliates, and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages, or liabilities, joint or several, and expenses to which
such seller, any such director or officer, general or limited partner, or member
or affiliate or any such underwriter or controlling Person may become subject
under the Securities Act, common law or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions or proceedings in respect thereof,
whether commenced or threatened, and whether or not such Indemnified Party is a
party thereto) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary, final, or summary prospectus contained therein or any amendment
or supplement thereto, or (b) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action, or proceeding; provided, that the Company shall not be liable to any
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof), or expense
arises out of or is based upon (i) any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
amendment or supplement thereto or in any such preliminary, final, or summary
prospectus in reliance upon and in conformity with written information with
respect to a Participating Stockholder furnished to the Company by such
Participating Stockholder for use in the preparation thereof, or (ii) an untrue
statement or alleged untrue statement, omission or alleged omission in a
prospectus if such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to such prospectus
which amendment or supplement is delivered to such Participating Stockholder
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in a timely manner and such Participating Stockholder thereafter fails to
deliver such prospectus as so amended or supplemented prior to or concurrently
with the sale of such Registrable Securities to the Person asserting such
damages. The indemnity agreements shall not apply to amounts paid in settlement
of claims if such settlement is effectuated without the consent of the Company
(which shall not be unreasonably withheld or delayed). Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any Indemnified Party and shall survive the transfer of
such securities by such seller.
B. In the event of any registration of any securities of the Company
under the Securities Act, each prospective seller thereunder will, and it hereby
does, indemnify and hold harmless (in the same manner and to the same extent as
set forth in Article VI-A) the Company, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final, or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information with respect to such seller furnished to the Company by such seller
for use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing; provided, however, that the indemnity
agreement contained in this Article VI-B shall not apply to amounts paid in
settlement of any loss, claim, damage, liability, or action arising pursuant to
a registration if such settlement is effected without the consent of such seller
(which consent shall not be unreasonably withheld). Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any of the prospective sellers, or any of their respective
affiliates, directors, officers, or controlling Persons and shall survive the
transfer of such securities by such seller. Notwithstanding the foregoing, the
obligations of each prospective Seller to indemnify shall be limited to an
amount equal to the proceeds to each such Seller of securities sold as
contemplated herein.
C. Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Article VI, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, that the failure of the indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under this Article VI, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party will
consent to entry of any
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judgment or enter into any settlement which does not include as an unconditional
term thereof, the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
D. Indemnification similar to that specified herein (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
VII. Hold-Back Agreements
In connection with each public offering, each Stockholder and the
Company shall agree not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any equity securities of
the Company, or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (in each case, other than as part of such
underwritten public offering), within seven days before or 90 days (or such
lesser period as the managing underwriters may permit) after the effective date
of such registration; provided that a Stockholder shall be so limited only if
notice of the effective date of such registration statement has been given to
such Stockholder. The Company hereby also agrees to use its best efforts to
cause as the managing underwriters may require each other holder ("Non-Public
Holders") of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company purchased
from the Company (at any time other than in a public offering) to so agree. The
foregoing provisions shall not apply to any holder of Registrable Securities if
such holder is prevented by applicable statute or regulation from entering into
any such agreement; provided, however, that any such holder shall undertake, in
its request to participate in any such underwritten offering, not to effect any
public sale or distribution of Registrable Securities (except as part of such
underwritten registration) during such period unless it has provided 45 days
prior written notice of such sale or distribution to the managing underwriter or
underwriter.
VIII. Rule 144 Reporting
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of the Restricted
Securities to the public without registration, the Company agrees to:
1. make and keep public information available as those terms are
understood and defined and interpreted in and under Rule 144 under the
Securities Act, as tall times from and after ninety (90) days following the
effective date of the first registration under the Securities Act filed by the
Company for an offering of its securities to anyone other than its employees;
2. use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act at any time after it has become subject to such
reporting requirements; and
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3. so long as the holder of Registrable Securities owns any Restricted
Securities, furnish to such holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of Rule 144, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as such holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing the
purchaser to sell any such securities without registration.
IX. Miscellaneous
A. Amendment and Modification. This Agreement may be amended only in a
writing executed by all the parties hereto. No course of dealing between or
among any Persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
B. Successors and Assigns; Entire Agreement. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
This Agreement, together with the Securities Purchase Agreement, Stockholders'
Agreement and the ancillary agreements and instruments entered into in
connection herewith and therewith, sets forth the entire agreement and
understandings among the parties as to the subject matter hereof and thereof and
merges and supersedes all prior discussions and understandings of any and every
nature among them.
C. Separability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
D. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram, facsimile transmission
with confirmation of receipt, or telex, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties as
follows:
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If to the Company, to:
Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
If to Investor, to:
Andlinger Capital XXVI LLC
c/o Andlinger & Company, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
with a required copy to:
Dechert Price & Xxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Fax: 000-000-0000
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If to Axess, to:
Axess Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
Fax: 000-000-0000
with a required copy to:
Xxxx X. Xxxxxxxx, Esq.
St. Xxxx & Xxxxx, LLC
Xxx Xxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
E. Governing Law. The validity, performance, construction and effect of
this Agreement shall be governed by and construed in accordance with the
internal law of New York, without giving effect to principles of conflicts of
laws.
F. Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
G. Counterparts. This Agreement may be executed in two or more
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 instrument.
H. Further Assurances. Each party shall cooperate and take such action
as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
I. Effectiveness; Termination. This Agreement shall be effective upon
the consummation of the transactions on the Closing Date contemplated by the
Securities Purchase Agreement and, unless sooner terminated, shall terminate ten
years after the date of this Agreement and any additional period permitted by
law, provided that the indemnification rights and obligations set forth in
Article VI hereof shall survive the termination of this Agreement.
J. Remedies. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of
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damages, will be entitled to specific performance of its rights under this
Agreement, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
K. Party No Longer Owning Registrable Securities. If a party hereto
ceases to own any Registrable Securities, such party will no longer be deemed to
be a Stockholder for purposes of this Agreement; provided that the
indemnification rights and obligations set forth in Article VI hereof shall
survive any such cessation of ownership.
L. Pronouns. Whenever the context may require, any pronouns used herein
shall be deemed also to include the corresponding neuter, masculine or feminine
forms.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ANDLINGER CAPITAL XXVI LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
AXESS CORP.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
