Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of June 18, 1999, between The XxxXxxx-
Xxxxxxxxxx Corporation, a Delaware corporation ("MSC"), Dendron
Technology B.V., a Dutch corporation, and Fronos Technology B.V.,
a Dutch corporation (together the "NI Subs").
RECITALS
WHEREAS, MSC has entered into that certain Stock
Purchase Agreement, dated as of May 26, 1999 (the "Stock Purchase
Agreement"; all capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms in the Stock
Purchase Agreement) with the NI Subs;
WHEREAS, pursuant to the Stock Purchase Agreement MSC
has agreed to issue to the NI Subs on the Closing Date (i)
subordinated promissory notes in an aggregate principal amount of
$11,000,000 with a term to full maturity of ten (10) years, (ii)
subordinated promissory notes in an aggregate principal amount of
$3,236,012 with a term to maturity of two (2) years (together the
"Notes"), and (iii) five year warrants for the purchase of
1,400,00 shares of common stock of MSC at an exercise price of
$10.00 per share (the "Warrants");
WHEREAS, the issuance of the Notes and Warrants has not
been registered under the Securities Act and the Notes and
Warrants are subject to restrictions on resale or other
disposition;
WHEREAS, MSC desires to grant, and the NI Subs desire
to accept, the registration rights set forth in this Agreement in
respect of the Securities, as defined herein; and
WHEREAS, execution and delivery of this Agreement by
the parties hereto is a condition precedent to the closing of the
Stock Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises
contained herein and intending to be legally bound the parties
agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall
have the following respective meanings:
"Holder" means the NI Subs and any transferee or
assignee as permitted under Section 8 hereof.
"Securities" means the Notes and Warrants issued to the
NI Subs pursuant to the Stock Purchase Agreement and the shares
of common stock of MSC purchasable upon exercise of the Warrants.
As to any particular Securities, once issued such securities
shall cease to be Securities when (A) 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,
(B) such securities shall have been sold in accordance with Rule
144 (or any successor provision) under the Securities Act, (C)
such securities are eligible to be resold pursuant to Rule 144(k)
or (D) such securities have been transferred to a person who is
not a Holder.
The terms "register," "registered" and "registration"
refer to the preparation and filing with the SEC of a
registration statement or similar document in compliance with the
Securities Act and the declaration or ordering of the
effectiveness of such registration statement or document.
"Registration Expenses" means all expenses, except
Selling Expenses, incurred by MSC while complying with Section 2
of this Agreement. Registration Expenses shall include, without
limitation, all registration and filing fees and other
qualification fees, blue sky fees, printing expenses and fees and
disbursements of MSC's accountants and legal counsel incurred in
any registration pursuant to Section 2.
"SEC" means the United States Securities and Exchange
Commission or any successor agency.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Selling Expenses" means all underwriting discounts,
selling commissions, stock transfer taxes relating to any
Holder's registered securities and any fees and disbursements of
counsel, accountants or other agents for any Holder.
"Stock Purchase Agreement" shall have the meaning given
in the recitals hereof.
SECTION 2. Registration.
(a) Registration Statement. Within 120 days from the
date of this Agreement, MSC will file a registration statement on
Form S-3 (if available) with the SEC covering the resale of the
Securities from time to time in unsolicited broker's transactions
including only usual and customary brokers' commissions.
(b) Notice of Effectiveness. Promptly upon
declaration of effectiveness by the SEC of a registration
statement filed pursuant to this Agreement, MSC shall give
written notice thereof to each Holder whose Securities are
included in such registration statement.
(c) Blackout Periods. Following the effective date of
any registration statement filed pursuant to this Section 2, MSC
shall be entitled, from time to time, to notify the Holders to
discontinue offers or sales of Securities pursuant to such
registration statement for the period of time stated in such
notice, up to a maximum of sixty (60) consecutive days (such
notice being a "Blackout Notice"), if MSC determines, in its
reasonable business judgment, that such offers and sales would
materially interfere with any financing, acquisition, corporate
reorganization, securities offering or other material
transaction, or if there has been any development, event,
occurrence or change in circumstances which MSC would not be
required to disclose at such time other than in connection with a
registration statement, involving MSC or any of its subsidiaries,
taken as a whole. Such notice shall be signed by an authorized
officer of MSC. Each Holder agrees that upon receipt of a
Blackout Notice such Holder shall discontinue offers or sales of
Securities pursuant to any such registration statement for the
period of time stated in the Blackout Notice and the time period
set forth in subsection 2(d) shall be tolled during such period.
MSC may issue any number of Blackout Notices and such notices may
be given consecutively.
(d) Effectiveness of Registration Statements. MSC
shall cause any registration statement filed pursuant to this
Section 2 to remain effective for at least two years after it is
declared or ordered effective or until the Holders have completed
the distribution described therein, whichever first occurs;
provided, however, that in no event will MSC be required to
prepare or file audited financial statements with respect to any
fiscal year by a date prior to the date on which MSC would be so
required to prepare and file such audited financial statements if
such registration statement were no longer effective and usable.
(e) Holdback Agreement. In the event of any filing of
a prospectus supplement or the commencement of an underwritten
public distribution of any securities issued by MSC under a
registration statement, whether or not the Securities are
included, each Holder agrees not to effect any public sale or
distribution of the Securities (except as part of such
underwritten public distribution), including a sale pursuant to
Rule 144 or Rule 144A under the Securities Act, during a period
designated by MSC in a written notice duly given to Holders,
which period shall commence approximately fourteen (14) days
prior to the effective date of any such filing of such prospectus
supplement or the commencement of such underwritten public
distribution of such MSC securities under a registration
statement and shall continue for up to ninety (90) consecutive
days after such effective date or commencement.
SECTION 3. Expenses of Registration.
MSC shall bear the Registration Expenses arising out of
the registration described in Section 2 hereof; provided,
however, that all Selling Expenses relating to the registered
securities of any Holder shall be borne by Holder and MSC shall
have no liability therefor.
SECTION 4. Registration Procedures.
For the registration carried out by MSC pursuant to
this Agreement, MSC shall give each Holder written notice of the
initiation of such registration and MSC will:
(a) provide to each Holder participating in such
registration a reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and any other
documents as may reasonably be necessary to facilitate a public
offering;
(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 and to comply with the
provisions of the Securities Act with respect to the disposition
of all Securities covered by such registration statement during
the effectiveness of such registration statement;
(c) use its best efforts to register or qualify all
Securities covered by such registration statement under the
securities or blue sky laws of such states as each Holder shall
reasonably request, except that MSC shall not for any such
purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in any such
jurisdiction or to consent generally to service of process in any
such jurisdiction; and
(d) immediately notify each Holder of Securities
covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities 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 omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in
light of the circumstances then existing, and at the request of
any such Holder prepare and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such 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 light of the
circumstances then existing.
SECTION 5. Information by Holder.
Each Holder of Securities participating in any
registration shall provide MSC, when requested, with written
information regarding itself, its ownership of securities issued
by MSC and such other information as may be necessary or
desirable in connection with such registration. Such writing
shall expressly state that it is being furnished to MSC for use
in the preparation of a registration statement, preliminary
prospectus, supplementary prospectus, final prospectus or
amendment or supplement thereto, as the case may be. Each Holder
agrees, by its acquisition of Securities and its acceptance of
the benefits provided to it hereunder, to furnish promptly to MSC
all information required to be disclosed in order to make any
previously furnished information not misleading.
SECTION 6. Delay of Registration.
No Holder shall obtain or seek an injunction
restraining or otherwise delaying any registration referred to in
this Agreement as a result of any controversy arising out of the
interpretation or implementation of this Agreement.
SECTION 7. Indemnification.
(a) MSC will indemnify each Holder of Securities
covered by any such registration statement, its officers,
directors and partners and each person who controls such Holder
within the meaning of Section 15 of the Securities Act against
all reasonable expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing
incurred in the defense and settlement of any litigation, arising
out of or based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any registration
statement, prospectus or documents incorporated by reference
therein, or based upon any omission (or alleged omission) of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and including any of the
foregoing incurred or arising out of any violation by MSC of the
Securities Act or any rule or regulation promulgated under the
Securities Act; provided, however, that MSC will not be under an
obligation to indemnify any of them (i) if any of the foregoing
are based upon any untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished
to MSC by any Holder or (ii) to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of any Holder's failure to send or
give a copy of the final prospectus or supplement to the persons
asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written
confirmation of the sale of Securities to such person if such
statement or omission was corrected in such final prospectus or
supplement; provided further, that the indemnity agreements
contained in this subsection shall not apply to amounts paid in
any settlement if such settlement is effected without the consent
of MSC.
(b) Each Holder participating in a registration
pursuant to this Agreement will indemnify MSC, its directors and
officers, each person who controls MSC within the meaning of
Section 15 of the Securities Act, and each other Holder and each
of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act,
against all reasonable expenses, claims, losses, damages and
liabilities incurred and actions arising out of any untrue
statement (or alleged untrue statement) of a material fact
contained in any registration statement and any documents related
thereto or based upon any omission (or alleged omission) of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and including any of the
foregoing incurred or arising out of the violation by any such
Holder of the Securities Act or any rule or regulation
promulgated thereunder; provided, however, that such Holder will
only be obligated to indemnify any of them for any of the
foregoing based upon a material misstatement or an omission
(alleged or otherwise) made in reliance upon information
furnished to MSC in writing by such Holder.
(c) Each party entitled to indemnification under this
Section 7 ("Indemnified Party") shall give prompt notice to the
party required to provide indemnification ("Indemnifying Party")
as soon as Indemnified Party has actual knowledge of any claim
for which indemnify may be sought, and shall permit Indemnifying
Party to assume and control the defense of any such claim or any
litigation resulting therefrom, provided that Indemnified Party
will have the right to approve (whose approval shall not be
unreasonably withheld) of the counsel chosen by Indemnifying
Party to defend such claim or litigation, and provided that
Indemnified Party may participate in such defense at Indemnified
Party's expense. The failure of any Indemnified Party to give
notice of a claim subject to indemnification shall not relieve
Indemnifying Party of its obligations under this Agreement unless
the failure to give such notice is materially prejudicial to
Indemnifying Party's ability to defend such claim. Indemnifying
Party shall not assume the defense for matters as to which there
is a conflict of interest or separate and different defense. In
defending such claim, Indemnifying Party shall not, without the
prior written consent of Indemnified Party, consent to the entry
of any judgment or enter into any settlement which does not
include an unconditional provision releasing Indemnified Party
from all liability in respect to such claim or litigation.
(d) The obligations of MSC and Holders under this
Section 7 shall survive the completion of any offering of
Securities in a registration statement under this Agreement, and
otherwise.
SECTION 8. Transfer of Registration Rights.
Any Holder's rights under Section 2 hereof may not be
assigned or transferred except to Nearchos Irinarchos or an
affiliate thereof.
SECTION 9. Amendment of Registration Rights.
Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively),
only with the written consent of MSC and Holders of a majority of
the Securities then outstanding. Any amendment or waiver
effected in accordance with this Section 9 shall be binding upon
each Holder, each transferee or assignee of Holder pursuant to
Section 8 of this Agreement.
SECTION 10. Rule 144.
MSC covenants that it will file, on a timely basis, all
reports required to be filed by it under the Securities Exchange
Act of 1934, and it will take such further action and provide
such documents as any Holder of Securities may request, all to
the extent required from time to time to enable the Holders to
sell Securities without registration under the Securities Act
within the limitation of the conditions provided by (a) Rule 144
under the Securities Act, as such rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted
by the SEC. Upon the request of the Holders, MSC will deliver to
the Holders a written statement verifying that it has complied
with such information and requirements.
SECTION 11. Notices.
All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed
to have been made (i) when delivered personally or by telecopier,
(ii) if to a party in the same country as the mailing party, when
mailed first class registered or certified mail, postage prepaid,
or (iii) if to a party in a different country from the sending
party, on the second day following deposit with a reputable
commercial air courier, charges prepaid, to each respective party
as shown below:
(a) If to the Holders of Securities, to the addresses
shown on the signature page(s) hereto, with a copy to:
Xxxxxx & Xxxxx
000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to MSC to:
The XxxXxxx-Xxxxxxxxxx Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
1999 Avenue of the Stars, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: D. Xxxxxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
SECTION 12. Parties in Interest.
This Agreement shall be binding upon and inure to the
benefit of each party, and nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this
Agreement. Nothing in this Agreement is intended to relieve or
discharge the obligation of any third person to any party to this
Agreement.
SECTION 13. Counterparts.
This Agreement may be executed in any number of
counterparts and by different parties 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.
SECTION 14. Headings.
The headings in this Agreement are for convenience only
and shall not limit or otherwise affect the meaning hereof.
SECTION 15. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without
regard to principles of conflict of law.
SECTION 16. Attorney's Fees.
In the event of any action, complaint, petition or
other proceeding ("Action") by any party arising under or out of,
in connection with or in respect of, this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees,
costs and expenses incurred in such Action. Attorney's fees
incurred in enforcing any judgment in respect of this Agreement
are recoverable as a separate item. The parties intend that the
preceding sentences be severable from the other provisions of
this Agreement, survive any judgement and, to the maximum extent
permitted by law, not be deemed merged into such judgment.
SECTION 17. Severability.
In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be
affected or impaired thereby.
SECTION 18. Entire Agreement.
This Agreement, together with the Stock Purchase
Agreement and the other agreements of MSC and the NI Subs of even
date herewith, contains the entire understanding of the parties
with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
THE XXXXXXX-XXXXXXXXXX CORPORATION
By: /s/ Xxxxx Xxxxx, Xx.
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Its: Chief Executive Officer
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DENDRON TECHNOLOGY B.V.
By: /s/ Nearchos Irinarchos
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Its: General Manager
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Notice Address:
c/o Nearchos Irinarchos
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Vikavagen 9
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X-000 00 Xxxxxx, Xxxxxx
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FRONOS TECHNOLOGY B.V.
By: /s/ Nearchos Irinarchos
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Its: General Manager
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Notice Address:
c/o Nearchos Irinarchos
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Vikavagen 9
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X-000 00 Xxxxxx, Xxxxxx
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