Exhibit 2.2
Xxxxx 00, 0000
Xxxxx, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Gentlemen:
Reference is made to that certain Share Purchase Agreement, dated as of
November 17, 1997 (the "Agreement"), between Mizar, Inc., a Delaware corporation
("Mizar"), and Loughborough Sound Images Limited, a company registered in
England and Wales ("LSI"). Capitalized terms used herein shall have the
respective meanings set forth in the Agreement.
In connection with the transactions contemplated by the Agreement, and
in consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Subject to the terms and conditions contained herein, LSI hereby
waives Mizar's requirement under the Agreement to cause the Registration
Statement to become effective and consents to Mizar's withdrawal of the
Registration Statement.
2. Subject to the terms and conditions contained herein, LSI hereby
waives the requirement that the shares of Mizar Common Stock to be issued in the
Exchange be approved for listing on the NMS as of the Closing Date; provided,
however, that Mizar covenants to cause such shares to be so approved for listing
on or before the effective date of the Registration Statement (as defined on
Schedule 1 hereto).
3. LSI and Mizar hereby mutually consent to the extension of the
termination date in Section 9.1(b) from March 31, 1998 to April 30, 1998.
4. Mizar hereby grants, effective from and after Closing, to the holders
of LSI capital stock (and their transferees and assigns) the registration rights
set forth on Schedule I hereto with respect to the shares of Mizar Common Stock
to be issued in the Exchange.
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March 24, 1998
Page 48
5. For the purpose of enforcing the obligations set forth in paragraph 4
hereof, each of the holders of LSI capital stock (and their transferees and
assigns) shall be deemed a third party beneficiary of this Agreement.
6. Mizar hereby represents and warrants that, (i) assuming that each of
the LSI shareholders are not U.S. persons or acquiring Mizar Common Stock on
behalf of any U.S. person, the issuance of shares of Mizar Common Stock to the
LSI stockholders in the Exchange is exempt from registration under the
Securities Act of 1933, as amended and (ii) Mizar is eligible to register the
shares of its Common Stock issued to the LSI stockholders for resale by them on
a continuous or delayed basis pursuant to a Registration Statement on Form S-3.
7. Mizar agrees that it will deliver to LSI the opinion of its legal
counsel in form acceptable to counsel for LSI as to the matters described in
clause (i) of paragraph 6 above, in the form set forth on Schedule II hereto.
Please indicate your acceptance of the foregoing terms by your execution
in the space provided below.
Very truly yours,
Loughborough Sound Images Limited
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
Accepted and agreed as of the date first written above:
Mizar, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President-Finance and Chief Financial Officer
48
Schedule I
Registration Rights
1. Upon the demand after the Closing of holders of at least 500,000 shares
of Mizar Common Stock to be issued in the Exchange, Mizar shall prepare and file
with the Securities and Exchange Commission ("SEC") a Registration Statement
("Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act") on Form S-3, or if for any reason Mizar is not then eligible to file
a Form S-3, then on Form S-1 registering all of the shares of Mizar Common Stock
issued in the Exchange (the "Registrable Securities") for resale to the public.
In addition, each time prior to the "Termination Date" (defined below)
that Mizar decides to file a Registration Statement under the 1933 Act (other
than on Forms S-4 or S-8 or any successor form for the registration of
securities issued or to be issued in connection with a merger or acquisition or
employee benefit plan) covering the offer and sale by it or other holders of
Mizar's securities who may demand registration of such securities of any of its
securities for money, Mizar shall give written notice thereof to all holders of
Registrable Securities. Mizar shall include in such Registration Statement such
shares of Registrable Securities for which it has received written requests to
register such shares within 30 days after such written notice has been given. If
the Registration Statement is to cover an underwritten offering, such
Registrable Securities shall be included in the underwriting on the same terms
and conditions as the securities otherwise being sold through the underwriters.
If the managing underwriter(s) in any underwritten offering shall advise Mizar
in writing that the inclusion of all of the shares of Registrable Securities and
any other Mizar Common Stock requested to be registered would have an adverse
effect on the proposed distribution of the securities to be issued by Mizar in
such public offering, then the number of shares of Registrable Securities and
other Mizar Common Stock to be included in the offering (except for shares to be
issued by Mizar in an offering initiated by Mizar) shall be reduced to such
smaller number with the participation in such offering by the holders of
Registrable Securities to have priority over the participation by other holders
of Mizar Common Stock. In connection with any of the foregoing Registration
Statements, Mizar will as expeditiously as possible:
(a) use its best efforts to cause such Registration Statement
to become effective and remain effective so that the Registrable
Securities may be offered and sold on a continuous or delayed basis in
accordance with Rule 415 under the 1933 Act, until the earlier of three
years after the Closing Date or such time as all of the Registrable
Securities have been sold by the holders of the Registrable Securities
(the "Holders") under such Registration Statement or pursuant to Rule 144
under the 1933 Act or until all such Registrable Securities are eligible
for resale under the 1933 Act without volume limitations set forth in Rule
144 (the "Termination Date");
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be requested by the Holders, or as
may be required by the 1933 Act or rules and regulations thereunder to
keep the Registration Statement effective until all Registrable Securities
covered by such Registration Statement are sold in accordance with the
intended plan of distribution set forth in such Registration Statement or
the prospectus forming a part thereof (the "Prospectus");
(c) deliver to the Holders, without charge, as many copies of
each Prospectus as the Holders may reasonably request (Mizar hereby
consenting to the use of each such Prospectus by the Holders in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus) and a reasonable number of copies of the then-effective
Registration Statement and any post-effective amendments thereto and any
supplements to the Prospectus, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(d) register or qualify or cooperate with the Holders and
their counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as the Holders may reasonably designate in
writing and do anything else necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided that Mizar shall 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
service of process in any such jurisdiction where it is not then so
subject;
(e) cause all such Registrable Securities to be listed on each
securities exchange or automated quotation system on which similar
securities issued by Mizar are then listed;
(f) advise each Holder, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such Registration Statement or the
initiation or threatening of any proceeding for such purpose and promptly
use its reasonable best efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order should be issued;
(g) at least three days prior to the filing of any amendment
or supplement to such Registration Statement or prospectus or any document
that is to be incorporated by reference into such Registration Statement
or prospectus, furnish a copy thereof to each seller of such Registrable
Shares;
4
(h) notify the Holders at any time when a prospectus relating to
such Registration Statement is required to be delivered under the 1933
Act, of the happening of any event as a result of which the prospectus
included in such Registration Statement, as then in effect, includes an
untrue statement of a material fact or an omission to state a material
fact required to be stated in a Registration Statement or Prospectus or
necessary to make the statements in a Registration Statement or Prospectus
not misleading (hereafter, a "Misstatement"). At the request of any such
Holder, Mizar will promptly prepare (and, when completed, give notice to
each Holder of Registrable Securities) 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 material fact or omit to state any fact necessary to make
the statements contained therein not misleading; provided that upon such
notification by Mizar, each Holder of the Registrable Securities will not
offer or sell Registrable Securities until Mizar has notified such Holder
that it has prepared a supplement or amendment to such prospectus and
delivered copies of such supplement or amendment to such Holder;
(i) provide a transfer agent and registrar for all of the
Registrable Shares not later than the effective date of such S-3
Registration Statement; and
(j) in connection with any underwritten offering enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as a majority of the Holders of the
Registrable Securities being sold in such offering, or the underwriters,
if any, reasonably request in order to expedite or facilitate the
disposition of the Registrable Securities.
2. Based upon the written opinion of Mizar's securities law counsel,
Mizar may, by written notice to the Holders, for a period not to exceed 30 days,
suspend the Registration Statement and require that the Holders cease sales of
the Registrable Securities thereunder, if (i) Mizar is engaged in negotiations
or preparations for any transaction that Mizar desires to keep confidential for
valid business reasons, and (ii) Mizar determines in good faith that the public
disclosure requirements imposed on Mizar as a result of the Registration
Statement would require public disclosure of such negotiations or preparations;
provided, however, that Mizar may not exercise this right on more than one
occasion. Mizar will thereafter promptly prepare (and, when completed, give
notice to each Holder of Registrable Securities) 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 material fact or omit to state any fact necessary to make the statements
contained therein not misleading. Each Holder, in the event Mizar is issuing
shares of beneficial interest to the public in an underwritten offering, agrees,
if requested by the managing underwriter or underwriters for such
3
underwritten offering, not to effect any public sale or distribution of
Registrable Securities or any securities convertible into or exchangeable or
exercisable for such Registrable Securities, including a sale pursuant to Rule
144 (or any similar provision then in force) under the 1933 Act or under any
other registration statement other than one pertaining to such underwritten
offering, during the 14 days prior to, and during the 90-day period beginning
on, the effective date of such underwritten offering, provided, however, that no
Holder shall be required to refrain from selling Registrable Securities more
than once in any twelve-month period.
3. Mizar agrees to indemnify, to the extent permitted by law, each Holder
of Registrable Shares, its officers and directors and each person who controls
such Holder (within the meaning of the 0000 Xxx) against all losses, claims,
damages, liabilities and expenses (including attorneys' fees) caused by any
untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to Mizar by such Holder expressly for use
therein or by such Holder's failure to deliver a copy of the Registration
Statement or prospectus or any amendments or supplements thereto after Mizar has
furnished such Holder with a sufficient number of copies of the same. In
connection with the S-3 Registration Statement, each Holder of Registrable
Securities will furnish to Mizar in writing such information and affidavits as
Mizar reasonably requests for use in connection with any such registration
statement or prospectus. In addition, in consideration for the Registration
Rights granted to them hereby, each Holder will agree in writing with Mizar
that, to the extent permitted by law, such Holder will indemnify Mizar, its
directors and officers and each Person who controls Mizar (within the meaning of
the 0000 Xxx) against any losses, claims, damages and liabilities resulting from
any untrue statement of material fact contained in the S-3 Registration
Statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
Holder; provided that the obligation to indemnify will be individual to each
Holder and will be limited to the net amount of proceeds received by such Holder
from the sale of Registrable Securities pursuant to the S-3 Registration
Statement. Any person entitled to indemnification herein will (i) be required to
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability
4
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of securities.
Mizar also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event Mizar's
indemnification is unavailable for any reason.
4. Mizar shall bear all expenses of the Registration Statement and all
other expenses incident to Mizar's compliance with this Agreement, which shall
include, without limitation, all registration and filing fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for Mizar and one
counsel for all of the Holders, and all independent certified public accountants
and other Persons retained by Mizar, Mizar's internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal and accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance for Mizar and its board
of directors and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by
Mizar are then listed but which shall not include any selling commissions or
underwriting discounts.
5
SCHEDULE II
000-000-0000
April ___, 1998
Loughborough Sound Images Limited
Xxxxxxxxxxxx Xxxx
Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxxxx
XX00 0XX Xxxxxxx
Gentlemen:
We are counsel for Mizar, Inc., a Delaware corporation ("Mizar"), and are
representing it in connection with the transactions contemplated by the terms of
that certain Share Purchase Agreement, dated November 17, 1997 (the "Purchase
Agreement"), by and between Mizar and Loughborough Sound Images Limited, a
company registered in England and Wales ("LSI"), and the letter agreement dated
March 24, 1998 (the "Letter Agreement"), between Mizar and LSI. Capitalized
terms used herein shall have the definition given to such terms in the Purchase
Agreement. We have been requested by Mizar to render this opinion letter
pursuant to paragraph 7 of the Letter Agreement.
For purposes of this opinion letter, we have examined and relied upon the
originals, or copies certified or otherwise identified to our satisfaction, of
such corporate documents and records of Mizar and certificates of public
officials and other documents, and have received such information, including
written certificates, from officers and representatives of Mizar, as we have
deemed necessary or appropriate to enable us to express the opinions expressed
below. In each case where we have relied upon such corporate documents,
information, or certificates, we believe such reliance is reasonable and have no
knowledge that the information provided is false, misleading, or otherwise
should not be relied upon.
Based upon the foregoing, and subject to the assumptions, limitations, and
qualifications set forth below, we are of the opinion that:
1. The issuance to the LSI Shareholders of the shares of Mizar
Common Stock that are to be issued under the terms of the
Purchase Agreement (the "Shares"), when effected in accordance
with the terms thereof and of the Letter Agreement, is exempt
from registration under the Securities Act of 1933, as amended
(the "Securities Act").
Loughborough Sound Images Limited
April __, 1998
Page 2
2. The Shares, when issued in accordance with the terms of the Letter
Agreement and the Purchase Agreement, will be duly and validly
issued, fully paid and non-assessable.
The opinions expressed herein are subject to the following assumptions,
limitations, and qualifications:
A. For purposes of the opinion rendered in paragraph 1, we have
assumed that (a) no offer or sale of the Shares is made to a person in the
United States, nor will any offer or sale be made for the account or benefit of
a person in the United States, (b) to Mizar's knowledge, each of the LSI
Shareholders are outside of the United States, and (c) Mizar implements the
appropriate "offering restrictions" required under the provisions of Regulation
S of the Securities Act.
B. For purposes of the opinions rendered herein, we have also assumed
(a) the genuineness of all signatures other than the signatures of
representatives of Mizar, (b) the authenticity of all documents submitted to us
as originals, (c) the conformity to authentic original documents of all
documents submitted to us as certified, conformed, or photostatic copies, (d)
the due authorization, execution, and delivery of all documents referred to in
this opinion by the parties to such documents other than Mizar, and (e) the
accuracy of all factual recitations contained in certificates or similar
documents examined by us.
C. The opinions expressed in this letter are based upon the law in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such law be changed by legislative action, judicial
decision, or otherwise.
This opinion letter is being furnished to you solely for your benefit and
only with respect to the transactions recited herein. Accordingly, it may not be
relied upon by, or quoted in any manner or delivered to, any person or entity
without, in each instance, our prior written consent.
Very truly yours,
-2-
