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EXHIBIT 4.2
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement") is
made and entered into as of January 25, 2000, by and among GENOMIC SOLUTIONS
INC., a Delaware corporation (the "Company"), those stockholders of the Company
who execute a counterpart signature page (each of whom is referred to herein
individually as a "Stockholder" and collectively as the "Stockholders"), the
Warrantholders (as defined below) and solely for the purposes of Section 1.3 of
this Agreement, Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"). This Agreement amends and
restates the Shareholders Agreement dated as of December 24, 1997, entered into
by and among the Company and certain of its stockholders and warrantholders, as
amended (the "Original Stockholders Agreement").
RECITALS:
A. The Original Stockholders Agreement provided for certain rights,
privileges and restrictions applicable to the Company's Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and common stock (the
"Common Stock") held by stockholders who executed and delivered the Original
Stockholders Agreement. In addition, the Original Stockholders Agreement
provided for and accommodated certain rights, privileges and restrictions with
respect to warrants for Common Stock (the "Warrants") that were issued in
connection with certain Business Loan Agreements dated April 23, 1999, and
October 28, 1999, respectively, between the Company and the Warrantholders. The
holders of the Warrants are referred to individually as a "Warrantholder" and
collectively, as the "Warrantholders".
B. The Company has authorized and issued a new series of preferred
stock, the Series P Preferred Stock, to PerkinElmer, Inc. ("PerkinElmer")
pursuant to the terms of an Investment Agreement, dated December 14, 1999
between PerkinElmer and the Company (the "Investment Agreement"). The Investment
Agreement grants PerkinElmer an option to acquire such number of shares of
Series P Preferred Stock so that PerkinElmer would hold 19.9% (on a fully
diluted basis) of the outstanding capital stock of the Company.
C. PerkinElmer has entered into securities purchase agreements (each a
"Purchase Agreement" and collectively, the "Purchase Agreements") with at least
_______ % of the Company's equity holders whereby PerkinElmer has an option to
acquire from such holders all of the equity securities of the Company held by
such holders.
D. The holder of the Series M Preferred Stock was not a party to the
Original Stockholders Agreement.
E. To consolidate the rights of the existing preferred holders and to
provide for and accommodate certain rights, privileges and restrictions with
respect to the Series P Preferred Stock and to provide for, restate and in some
instances modify certain rights,
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privileges and restrictions with respect to the Series M Preferred Stock, which
were previously contained in the Series M Preferred Stock Purchase Agreement
between B.I. Systems Corporation and Millipore Corporation, dated as of May
1997, as amended as of April 23, 1999, and October 28, 1999, the Company and the
Stockholders desire to enter into this Agreement to amend and restate the
Original Stockholders Agreement.
F. This Agreement is be read in conjunction with those rights,
preferences, privileges and restrictions granted and imposed on all classes of
the Company's stock which are established by the Amended and Restated
Certificate of Incorporation of the Company, as amended (the "Certificate"), the
Investment Agreement and the Purchase Agreements. To the extent that any
provision of this Agreement is inconsistent with any agreement heretofore
executed, except the Certificate, the Investment Agreement and the Purchase
Agreements, this Agreement shall be deemed controlling.
NOW THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, the
Company, the Stockholders, the Warrantholders and, for purposes of Section 13,
Xxxxxxxx, agree as follows:
SECTION 1. RIGHT OF FIRST OFFER AND COVENANTS OF THE COMPANY.
1.1 Right of First Offer.
(a) Subject to the terms and conditions specified in this
Section 1.1, the Company hereby grants to each holder of Series B,
Series M, Series C, Series D, or Series P Preferred Stock (each a
"Preferred Stockholder", and collectively, the "Preferred
Stockholders") and to each Warrantholder a right to participate in
future sales by the Company of its Shares (as hereinafter defined). For
purposes of this Section 1.1 and Section 1.4, Preferred Stockholder or
Warrantholder includes any partners or retired partners, and designated
affiliated purchasers ("Designees"), including spouses and ancestors,
lineal descendants and siblings of such partners or spouses who acquire
Series B, Series M, Series C, Series D or Series P Preferred Stock or
Warrants, or Common Stock issued upon conversion or exercise thereof,
by gift, will or intestate succession of a Preferred Stockholder or a
Warrantholder. A Preferred Stockholder or Warrantholder shall be
entitled to apportion the right of first offer hereby granted it among
itself and its partners and Designees in such proportions as it deems
appropriate.
(b) Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class
of its capital stock ("Shares"), the Company shall first make an
offering of a portion of such Shares (as determined in subsection (2)
below) to each Preferred Stockholder and each Warrantholder in
accordance with the following provisions:
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(1) The Company shall deliver a written notice ("Notice")
to the Preferred Stockholders and Warrantholders stating (i)
its bona fide intention to offer such Shares, (ii) the number
of such Shares to be offered, and (iii) the price and terms,
if any, upon which it proposes to offer such Shares.
(2) Within 20 calendar days after the Notice is sent, any
Preferred Stockholder and any Warrantholder may elect to
purchase or obtain, at the price and on the terms specified in
the Notice, up to that portion of such Shares which equals the
proportion (such proportion is referred to herein as a
Preferred Stockholder's or Warrantholder's "Proportion") that
the number of shares of Common Stock held by such Preferred
Stockholder or Warrantholder (treating preferred stock as if
fully converted to Common Stock and Warrants as if fully
exercised for Common Stock) bears to the total number of
shares of Common Stock of the Company then outstanding
(assuming for such calculation any shares issuable upon
conversion of any capital stock convertible into or
exchangeable for Common Stock).
(3) The Company may, during the 10-day period following
the expiration of the 20-day period provided in subsection (2)
hereof, offer the portion of such Shares which the Preferred
Stockholders and Warrantholders have not elected to purchase
to any person or persons at a price not less than the price,
and upon terms no more favorable to the offeree than the
terms, specified in the Notice. If the Company does not enter
into an agreement for the sale of the Shares within 90 days of
the expiration of such 10-day period, or if such agreement is
not consummated within 120 days following the expiration of
such 10-day period, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered
unless first reoffered to the Preferred Stockholders and the
Warrantholders in accordance herewith.
(4) The right of first offer in this Section 1.1 shall not
be applicable (i) to the issuance or sale of shares of Common
Stock (as adjusted to reflect any stock splits, combinations
or other events involving the Common Stock) to employees,
consultants or members of the Company's Board of Directors
(the "Board") pursuant to employee or director stock plans
which are approved in writing by the Board, (ii) to the Public
Offering (as defined in Section 2.15 hereof) or to any
offering of Shares after consummation of the Public Offering,
(iii) to the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities of the
Company, (iv) to any Common Stock issued upon conversion of
the Series B Preferred Stock, Series C Preferred Stock, Series
D Preferred Stock, Series M Preferred Stock, Series P
Preferred Stock or other series of preferred stock issued
pursuant to the Certificate or the Warrants, (v) to securities
issued in connection with any acquisition
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or business combination transaction approved by the Board, or
(vi) to securities issued in connection with equipment lease
financings or other financings with commercial lenders or in
strategic transactions involving the Company and other
entities including joint ventures or marketing, distribution
or development arrangements, in each case provided that any
issuance pursuant to subsection (vi) has been approved by the
Board.
1.2 Covenants.
(a) Prior Consent. Without the prior consent of the holders of
no less than 66 2/3% of the then outstanding shares of Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock, as if converted, voting
as a single class, the Company shall not:
(i) authorize, create or issue (whether by contract
or otherwise) any class of equity security senior to or pari
passu with the Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock; and
(ii) repurchase, redeem or retire any shares of the
capital stock of the Company or any option or warrant
exercisable therefor, except for repurchases under restricted
stock agreements with employees previously approved by the
Board.
(b) Taxes. The Company will promptly pay and discharge, or
cause to be paid and discharged, when due and payable, all lawful
taxes, assessments, and governmental charges or levies imposed upon the
income, profits, property, or business of the Company; provided,
however, that any such tax, assessment, charge, or levy need not be
paid if the validity thereof shall currently be contested in good faith
by appropriate proceedings and if the Company shall have set aside on
its books adequate reserves with respect thereof.
(c) Maintain Properties. The Company will keep its properties
in good repair, working order, and condition, reasonable wear and tear
excepted, and from time to time will make all necessary and proper
repairs, renewals, replacements, additions, and improvements thereto.
(d) Maintain Corporate Existence. The Company shall maintain
in full force and effect its corporate existence, rights, and
franchises and all material licenses and other material rights to use
processes, licenses, trademarks, trade names, or copyrights owned or
possessed by it and deemed by the Company to be necessary to the
conduct of its business.
(e) Insurance. The Company will maintain insurance of the
types and in the amounts generally deemed adequate for its business.
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(f) Financial Information. The Company shall deliver to the
Preferred Stockholders and the holders of Registrable Securities
(defined in Section 2.1 below) as soon as practicable, (i) after the
end of each fiscal year of the Company, and in any event within 90 days
thereafter, an audited consolidated balance sheet of the Company as of
the end of such year and audited consolidated statements of income,
stockholders' equity and cash flows for such year, which year-end
financial reports shall be prepared in accordance with generally
accepted accounting principles and (ii) after the end of each of the
first three fiscal quarters of each year, and in any event within 45
days after the end of each such fiscal quarter, unaudited quarterly
financial statements, which quarterly statements shall be prepared in
accordance with generally accepted accounting principles.
1.3 Right of First Refusal.
(a) If any holder of Series B (a "Series B Holder"), Series C
(a "Series C Holder"), Series D (a "Series D Holder") or Series M
Preferred Stock (a "Series M Holder") or Warrantholder wishes to
transfer any shares of Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series M Preferred Stock or Warrants,
or Common Stock issued upon conversion or exercise of such preferred
stock or Warrants, or if Xxxxxxxx wishes to transfer any shares of
Common Stock issued to him at any time, in any case except in a
Permitted Transfer (defined in Section 1.3(m) below) (each such person
is referred to herein as a "Selling Stockholder"), the Selling
Stockholder shall do so only for cash, unsecured promissory notes, cash
equivalents, or a combination of the foregoing, and shall first give
written notice (the "Offer Notice") to the Company, identifying the
securities proposed to be transferred (the "Offered Securities"),
identifying the proposed transferee, and stating the price at which,
and other material terms on which, the Selling Stockholder wishes to
transfer the Offered Securities, including the date of the proposed
transfer. This Section 1.3 shall not apply in the case of a Public
Offering and shall not apply to any purchases pursuant to the Purchase
Agreements. For purposes of this Section 1.3, Preferred Stockholder
shall not include any holder of Series P Preferred Stock.
(b) Delivery of an Offer Notice by any Series B Holder, Series
C Holder, Series D Holder, Warrantholder or Xxxxxxxx to the Company
shall constitute an offer to transfer the Offered Securities, in whole
but not in part, first to the Company, and then to the Preferred
Stockholders and Warrantholders, pursuant to this Section 1.3, at the
price and on the other material terms described in the Offer Notice.
Delivery of an Offer Notice by any Series M Holder to the Company shall
constitute an offer to transfer to the Offered Securities, in whole but
not in part, to the Company pursuant to this Section 1.3 at the price
and on the other material terms described in the Offer Notice. The
offer described in any Offer Notice is referred to herein as the
"Offer".
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(c) Within seven calendar days after it receives an Offer
Notice from a Series B Holder, Series C Holder, Series D Holder,
Warrantholder or Xxxxxxxx, the Company will deliver a copy of the Offer
Notice to each Preferred Stockholder and each Warrantholder.
(d) The Company may elect, by written notice delivered to the
Selling Stockholder not later than fourteen calendar days after the
Company receives the Offer Notice from any Selling Stockholder, to
accept the Offer with respect to all of the Offered Securities.
(e) If the Company does not elect to accept the Offer, then
within seven calendar days after the expiration of the period specified
in Section 1.3(d), the Company will notify each Preferred Stockholder
and each Warrantholder of the Preferred Stockholder's and
Warrantholder's rights under Section 1.3(g).
(f) If the Company does not accept an Offer made by a Series M
Holder in its entirety, then, subject to the provisions of Section
1.3(l), the terms of the Purchase Agreement executed by the Series M
Holder, if any, and any other agreements binding on the Series M
Holder, the Series M Holder may transfer the Offered Securities to the
transferee named in the Offer Notice, at any time within the period of
ninety calendar days beginning on the date the Company received the
Offer Notice. The provisions of this Section 1.3 shall again apply to
any transfer of Offered Securities not transferred within such period.
(g) Upon receipt of a notice of their rights from the Company,
as provided in Section 1.3(e) above, each of the Preferred Stockholders
and each of the Warrantholders may elect to accept the Offer with
respect to all or any portion of the Offered Securities, but at least
the Preferred Stockholder's or Warrantholder's Proportion of the
Offered Securities, by written notice delivered to the Company and the
Selling Stockholder not later than twenty-one calendar days after the
Preferred Stockholder or Warrantholder received the Offer Notice.
(h) If pursuant to Section 1.3(g) Preferred Stockholders and
Warrantholders who accept the Offer made by the Series B Holder, Series
C Holder, Series D Holder, Warrantholder or Xxxxxxxx ("Participants")
elect, in the aggregate, to accept all of an Offer, then the
Participants shall participate in the purchase of the Offered
Securities in the following proportions:
(i) first, each Participant shall purchase the
Participant's Proportion of the Offered Securities; and
(ii) then, if there are any Offered Securities
remaining unpurchased, those Participants who elected to
purchase more than their Proportion shall purchase the
remaining Offered Securities in the relative proportions of
the amounts by which each of them elected to purchase
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more than his, her or its Proportion, or in such other
proportions on which the Participants shall agree.
(i) If the Company elects to accept an Offer made by a Series
M Holder in its entirety, then the Series M Holder shall transfer the
Offered Securities to the Company and the Company shall acquire the
Offered Securities from the Series M Holder, at the price and on the
other material terms described in the Offer Notice. The consummation of
the transfer shall take place at the Company's chief executive offices
on the date specified for the proposed transfer in the Offer Notice
(but not earlier than thirty-four calendar days after the Company shall
have received the Offer Notice), or at such other location or date in
which the participants in the transaction agree in writing.
(j) If the Company or Participants elect to accept an Offer
made by a Series B Holder, Series C Holder, Series D Holder,
Warrantholder or Xxxxxxxx in its entirety, then the Selling Stockholder
shall transfer the Offered Securities to the Company or the
Participants, as the case may be, and the Company or the Participants,
as the case may be, shall acquire the Offered Securities from the
Selling Shareholder, at the price and on the other material terms
described in the Offer Notice. The consummation of the transfer shall
take place at the Company's chief executive offices on the date
specified for the proposed transfer in the Offer Notice (but not
earlier than sixty-three calendar days after the Company shall have
received the Offer Notice), or at such other location or date on which
the participants in the transaction agree in writing.
(k) If neither the Company nor Participants accept an Offer
made by a Series B Holder, Series C Holder, Series D Holder,
Warrantholder or Xxxxxxxx in its entirety, then, subject to the
provisions of Section 1.3(l), the terms of the Purchase Agreement
executed by the Selling Stockholder, if any, and any other agreements
binding on the Selling Stockholder, the Selling Stockholder may
transfer the Offered Securities to the transferee named in the Offer
Notice, at any time within the period of 120 calendar days beginning on
the date the Company received the Offer Notice. The provisions of this
Section 1.3 shall again apply to any transfer of Offered Securities not
transferred within such period.
(l) A Selling Stockholder may not transfer the Offered
Securities pursuant to Section 1.3(f) or Section 1.3(k) unless and
until the transferee of the Offered Securities shall have executed this
Agreement in counterpart or delivered a written acknowledgment to the
Company that the securities to be received in the proposed transfer are
subject to this Agreement, thereby agreeing to be bound hereby in all
respects.
(m) A "Permitted Transfer" is a transfer of securities to a
Permitted Transferee if, prior to or concurrently with the consummation
of the transfer, the
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Permitted Transferee agrees in writing to be bound by all of the terms
and conditions of this Agreement. A "Permitted Transferee" means any
of:
(i) the spouse or a lineal ancestor or descendant
(whether natural or adopted) of the transferor;
(ii) a trust all of the beneficiaries (primary and
contingent) of which are either the transferor or the spouse
or a lineal ancestor or descendant (natural or adopted) of the
transferor; or
(iii) a partner in a transferor which is a
partnership, a stockholder of a transferor which is a
corporation or a member in a transferor which is a limited
liability company, which person receives the transfer as part
of a distribution among partners, stockholders or members, as
the case may be, of the transferor.
1.4 Tag-Along Rights. If a third-party ("Intended Transferee") presents
a bona fide written offer to one or more Stockholders or Warrantholders (the
"Intended Transferors") to purchase securities of the Company (the "Subject
Securities") constituting fifty percent (50%) or more of the Company's Common
Stock Equivalents, as defined below, which the Intended Transferors desire to
accept, and, after receiving an Offer Notice with respect to such offer, the
Company, the Preferred Stockholders and the Warrantholders have all failed to
exercise their rights under Section 1.3 to purchase all of the Subject
Securities, the Intended Transferors shall provide written notice of such
failure to the Company, which immediately upon receipt will send written notice
thereof to the Preferred Stockholders and the Warrantholders (the notice
delivered to the Preferred Stockholders and the Warrantholders is referred to
herein as the "Tag-Along Notice"). The Preferred Stockholders and the
Warrantholders shall be entitled to participate in the transaction with the
Intended Transferee, in the same capacity as the Intended Transferors, such that
each of the Preferred Stockholders and each of the Warrantholders shall be
entitled to transfer, on the terms and conditions and in the manner set forth in
the Offer Notice covering the Intended Transferee's offer, that percentage of
the Company's Common Stock Equivalents owned by him, her or it which is equal to
the percentage of the Company's Common Stock Equivalents that the Subject
Securities represent. The "Company's Common Stock Equivalents" means all shares
of Common Stock and all shares of Common Stock into which or for which any
securities of the Company may be converted, exchanged or exercised. To exercise
his, her or its rights under this Section, a Preferred Stockholder or
Warrantholder shall so notify the Intended Transferors, the Intended Transferee
and the Board on or before the twentieth (20th) business day after the Tag-Along
Notice is received by the Preferred Stockholders and the Warrantholders. For
purposes of this Section 1.4, the terms "Stockholders" and "Preferred
Stockholders" shall not include any holder of Series P Preferred Stock. This
Section 1.4 shall not apply to purchases pursuant to the Purchase Agreements.
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SECTION 2. REGISTRATION RIGHTS.
The Company covenants and agrees as follows:
2.l Definitions. For purposes of this Section 2:
(a) The terms "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of
1933, as amended (the "Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Series B, Series C,
Series D, Series P or Series M Preferred Stock, (ii) any Common Stock
issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of,
such Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series P Preferred Stock, Series M Preferred Stock or
Common Stock, or (iii) any Common Stock acquired pursuant to Purchase
Agreements or issuable upon exercise of any securities acquired
pursuant to Purchase Agreements; provided, however, that Common Stock
or other securities shall only be treated as Registrable Securities if
and so long as (1) they have not been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, and (2) they have not been sold in a transaction exempt
from the registration and prospectus delivery requirements of the Act
under Section 4(1) thereof so that all transfer restrictions and
restrictive legends with respect thereto are removed upon the
consummation of such sale;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common
Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which
are, Registrable Securities;
(d) The term "Holder" means any person who is the record owner
of Registrable Securities or shares of Series B, Series C, Series D,
Series P or Series M Preferred Stock, or any assignee thereof in
accordance with Section 2.12 hereof; and
(e) The term "SEC" means the Securities and Exchange
Commission or any other federal agency at the time administering the
Act.
2.2 Company Registration.
(a) Subject to Section 2.2(b) below, if (but without any
obligation to do so) the Company proposes to register any of its stock
or other securities under
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the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale
of securities to participants in a Company stock plan, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of the Registrable Securities or a SEC Rule
145 transaction), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of
each Holder given within fifteen (15) days after mailing of such notice
by the Company, the Company shall, subject to the provisions of
Sections 2.4, 2.5, 2.6 and 2.7 below, cause to be registered under the
Act all of the Registrable Securities that each such Holder has
requested to be registered. Notwithstanding the foregoing, after the
Company's initial public offering, the Company will not be required to
give notice to the Holders of Registrable Securities if the
underwriters managing the proposed offering have advised the Company in
writing that in their judgment market conditions will not allow the
inclusion of any secondary shares in such offering. If the managing
underwriters and the Company subsequently determine to add any
secondary shares in the offering, such notice shall be provided, and
each Holder shall have the registration rights provided in this Section
2.
(b) The registration rights of the Holders pursuant to Section
2.2(a) above are subject to the demand registration rights of the
Warrantholders, as more particularly described in the Registration
Rights Agreement dated April 23, 1999, as amended October 28, 1999, by
and between the Company and the Warrantholders. The Company shall
notify the Holders of any such registration unless the underwriters
managing the proposed offering have advised the Company in writing that
the inclusion of Registrable Securities in such registration will
reduce the amount of shares of Common Stock requested by the
Warrantholders to be included in such registration. The Company shall
be required to include the Registrable Securities in any such demand
registration only to the extent that such inclusion will not reduce the
amount of shares of Common Stock requested by the Warrantholders to be
included in the registration. Thereafter, to the extent that the total
amount of Registrable Securities requested by the Holders to be
included in such offering exceeds the amount of securities that the
underwriters determine may be included in the offering, the Registrable
Securities will be apportioned among the Holders according to the total
amount of securities owned by each Holder or in such other proportions
as shall mutually be agreed to by such Holders.
2.3 Demand Registration. Subject to the terms of this Agreement, if the
Company shall receive from the Holders representing at least thirty percent
(30%) of the Registrable Securities then outstanding, at any time after six (6)
months after the effective date of the registration statement covering the
Company's initial public offering, a written notice that they intend to offer or
cause to be offered for public sale at least twenty-five percent (25%) of the
Registrable Securities then outstanding (or any lesser percentage if the
Registrable Securities to be included in the registration statement have an
aggregate offering price to the public greater than $5,000,000), the Company
will so notify all Holders. Upon written request of any Holder given within
fifteen (15) days after the
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receipt by such Holder from the Company of such notification, the Company will
use its best efforts to cause such of the Registrable Securities as may be
requested by any Holder (including the Holder giving the initial notice of
intent to offer) to be registered under the Act as expeditiously as possible (a
"Demand Registration"). The Company shall not be required to effect more than
one (1) Demand Registration. If (i) in the good faith judgment of the Board, a
Demand Registration would be materially detrimental to the Company and the Board
concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and (ii) the Company furnishes to each
Holder a certificate signed by the President of the Company stating that, in the
good faith judgment of the Board, it would be materially detrimental to the
Company for such registration statement to be filed in the near future, then the
Company shall have the right to defer such filing for the period during which
such Demand Registration would be materially detrimental, provided that the
Company may not defer the filing for a period of more than ninety (90) days
after receipt of the request for a Demand Registration and more than once in any
12-month period.
2.4 Obligations of the Company. Whenever required under Section 2.2 or
2.3 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts
and take all steps necessary to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of
the Registrable Securities registered thereunder, keep such
registration statement effective for up to 90 days or until all of the
securities registered thereunder are sold, whichever occurs sooner.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition
of all securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request to facilitate the disposition of Registrable
Securities owned by them.
(d) Furnish to the counsel of any Holder, a copy of the
registration statement five (5) days prior to the filing of such
registration statement.
(e) Use its best efforts to register and qualify the
securities covered by such registration statement for listing on the
National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ") or such other similar exchange.
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(f) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 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 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.
2.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
2.6 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 2.2 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by the persons
entitled to select the underwriters, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by Holders to be included in such offering
exceeds the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among all
selling stockholders according to the total amount of securities owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder of
Registrable Securities and
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which is a partnership or corporation, the partners, retired partners and
stockholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling stockholder" and any
pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares owned by all entities and individuals
included in such "selling stockholder," as defined in this sentence.
2.7 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 2.
2.8 Indemnification. If any Registrable Securities are included in a
registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become
subject under the Act, or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) 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, or (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, or
the 1934 Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any
legal or other expenses reasonably incurred by one law firm retained by
them (or such additional law firms retained by a Holder or Holders if
such Holder or Holders reasonably believe there exists a conflict of
interest among them) in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this subsection 2.8(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any loss, claim,
damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by any such Holder, underwriter or controlling
person.
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(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other
Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject,
under the Act, or the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by
such Holder expressly for use in connection with such registration; and
each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant
to this subsection 2.8(b), in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this subsection
2.8(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be
unreasonably withheld; provided, however, that, the obligation to
indemnify will be several, not joint and several, among such sellers of
Registrable Securities, and in no event shall any indemnity under this
subsection 2.8(b) exceed the net proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying xxxxx under this
Section 2.8, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.8, but the
failure to deliver written notice to the indemnifying party will not
relieve it
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of any liability that it may have to any indemnified party otherwise
than under this Section 2.8.
(d) The obligations of the Company and Holders under this
Section 2.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 2, and
otherwise.
2.9 Reports Under the 1934 Act. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety
(90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general
public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of
SEC Rule 144 (at any time after ninety (90) days after the effective
date of the first registration statement filed by the Company), the Act
and the 1934 Act (at any time after it has become subject to such
reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so
filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
2.10 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders of the Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form S-3 for a
public offering the aggregate offering price of which would exceed $1,000,000,
the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as
are specified in a written request given within fifteen (15) days
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after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section
2.10: (i) if Form S-3 is not available for such offering by the
Holders; (ii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board it would be detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more
than ninety (90) days after receipt of the request of the Holder or
Holders under this Section 2.10; (iii) if the Company has, within the
twelve (12) month period preceding the date of such request, already
effected two registrations for the Holders pursuant to Section 2.2, 2.3
or this Section 2.10; or (iv) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
2.11 Expenses of Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to a total of three registrations,
whether pursuant to Section 2.2, 2.3 or 2.10 or a combination thereof, including
(without limitation) all registration, filing, and qualification fees, printers
and accounting fees relating or apportionable thereto and the fees and
disbursements of one counsel for the selling Holders selected by them (which the
Company may request be the Company's counsel if such counsel is reasonably
acceptable to such selling Holders), but excluding underwriting discounts and
commissions and stock transfer taxes relating to Registrable Securities.
2.12 Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may only be
assigned to a purchaser, assignee or transferee of the underlying Registrable
Securities.
2.13 "Market Stand-Off" Agreement. Each Holder hereby agrees that for a
period of 180 days following the effective date of the first registration
statement of the Company covering Common Stock filed on Form S-l under the Act
and for any registration effected pursuant to Sections 2.2, 2.3 or 2.10 provided
the Holders are given written notice of the offering at least fifteen (15) days
prior to the Company's filing with the SEC of a registration statement relating
thereto), it shall not, unless otherwise agreed by the Company and the managing
underwriters, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common
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Stock included in such registration; provided, however, that all officers and
directors of the Company and all other persons with registration rights (whether
or not pursuant to this Agreement) enter into similar agreements.
To enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.14 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company which would allow such holder or prospective holder to include such
securities in any registration filed under Section 2.2, 2.3 or 2.10 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included.
2.15 Termination. The rights provided in this Section 2 shall terminate
on the fifth anniversary of the closing of the Company's initial public offering
pursuant an effective registration statement under the Act covering the offer
and sale of Common Stock, where the aggregate offering price to the public is at
least $20,000,000, and where the public offering price per share is not less
than $8.00 per share (the "Public Offering").
SECTION 3. VOTING AGREEMENT
(a) Voting Agreement Regarding Composition of Board. The
Company and each of the holders of shares of Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series P
Preferred Stock agree that so long as the voting agreement set forth in
this Section remains in effect, each of them shall take all action
necessary from time to time (including, without limitation, the voting
of securities of the Company, the execution of written consents, the
calling of special meetings, the removal of directors, the filling of
vacancies on the Board, the waiving of notice and attendance at
meetings ) to maintain the membership of the Board as follows:
(i) The Chief Executive Officer of the Company shall
serve as a director of the Company;
(ii) As long as Chase Capital Partners or its
designees continues to own at least 785,000 shares of capital
stock of the Company, treating preferred stock as if fully
converted to Common Stock, Chase Capital Partners or its
designees shall have the right to designate one person to
serve as a director of the Company;
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(iii) As long as American Healthcare Fund II, L.P.
continues to own shares of the Company equal to at least 50%
of the shares held by it on the date of this Agreement,
treating preferred stock as if fully converted to Common
Stock, it shall have the right to designate one person to
serve as a director of the Company;
(iv) As long as either Xxxxxxx Xxxxxxxxx
("Xxxxxxxxx") or Xxxxxx Xxxxxxx ("Xxxxxxx") continue to own
shares of the Company equal to at least 50% of the shares held
by Xxxxxxxxx or Xxxxxxx on the date of this Agreement,
treating preferred stock as if fully converted to Common
Stock, Xxxxxxxxx and Xxxxxxx shall each have the right to
designate one person to serve as a director of the Company;
and
(v) If PerkinElmer or its designee exercises its
option pursuant to the Investment Agreement and purchases
additional shares from the Company to hold 19.9% of the
Company's outstanding capital stock, on a fully diluted basis,
and continues to hold such shares, PerkinElmer or its designee
shall have the right, but not the obligation, to designate one
person to serve as a director of the Company.
(vi) The remaining directors shall be designated by
the unanimous consent of the directors designated under
clauses (i), (ii), (iii), (iv) and (v), if applicable, of this
Section 3(a).
(b) Removal of Directors. If the person or persons entitled to
name a director pursuant to clause (ii), (iii), (iv) or (v) of Section
3(a). (the "Principals") give notice at any time to the Company that
the individual then serving as a director of the Company at such
Principals' designation is no longer their designee, then the Company
shall take all action necessary to remove the director so designated.
Any directors appointed in replacement of a director removed in
accordance with this Section 3(b) will be appointed in accordance with
Section 3(a).
(c) Election of Directors. If an individual serving at any
time as a director of the Company dies, resigns or is removed as a
director of the Company, then the Company and the holders of shares of
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series P Preferred Stock shall take all action necessary to
elect as a director of the Company any individual newly designated by
the Principals in accordance with Section 3(a) with respect to the
director who died, resigned or was removed.
(d) Voting Agreement. These Sections 3(a) through 3(d) are
intended to be a voting agreement within the meaning of Section 218(c)
of the Delaware Act.
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(e) Number of Directors. The Company agrees to maintain a
number of directors constituting the Board that is sufficient to give
the effect to the provisions of this Section 3.
SECTION 4. STOCK CERTIFICATE LEGEND.
(a) Required Legend. Simultaneously with the execution of this
Agreement, the Stockholders, other than holders of Series P Preferred
Stock, shall surrender all certificates of Stock to the Company for
endorsement with the following legend, which shall be conspicuously
placed on such certificates:
"The sale, transfer, assignment, pledge,
hypothecation or other disposition of the shares represented
by this certificate is restricted by the provisions of the
Amended and Restated Stockholders Agreement, dated as of
December __, 1999 (as it may be amended from time to time), to
which the Company and the holder of this certificate, among
others, are parties, a copy of which may be inspected at the
Company's principal office. The provisions of such agreement
are incorporated herein by reference."
All certificates of stock issued to or acquired by any Stockholder
after the date of this Agreement shall also bear the foregoing legend.
(b) Effect of Missing Legend. Section 4(a) above
notwithstanding, the fact that such legend has not been placed on a
certificate of stock held by any Stockholder shall not affect the
rights of the parties to this Agreement in any way, and all
certificates of stock on which such legend has not been placed shall be
deemed to have had that legend placed on them for the purposes of this
Agreement.
(c) Availability of Agreement. The Company shall maintain a
copy of this Agreement at its principal place of business and shall
make such copies available for review to any person who shall inquire
about the Agreement.
SECTION 5. INVESTOR AGREEMENT.
5.1 Acknowledgment of Investor Agreement. The Stockholders, other than
PerkinElmer, hereby acknowledge and agree to be bound, as if signatories, by
those certain tag-along rights granted to the selling stockholders of PBA
Technology Limited ("PBA"), as set forth in Section 5 of the Purchase Agreement
among the Company, PBA and certain shareholders of PBA dated December 24, 1997.
SECTION 6. MISCELLANEOUS.
6.1 Waivers and Amendments. With the written consent of the holders of
more than 66 2/3% of the shares of Series B Preferred Stock, Series C Preferred
Stock, Series
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D Preferred Stock, Series P Preferred Stock and Series M Preferred Stock and of
the Warrants, together with any shares issued upon conversion of each respective
class of preferred stock or upon exercise of the Warrants, each voting as a
separate class on a fully converted or exercised basis, the obligations of the
Company and the rights of the holders of Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series P Preferred Stock, Series M
Preferred Stock, the Warrants and shares issued upon conversion of each
respective class of preferred stock or upon exercise of the Warrants under this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively and either for a specified period of time or
indefinitely), and with the same consent the Company, when authorized by
resolution of the Board, may enter into a supplementary agreement for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement; provided, however, that no such waiver or
supplemental agreement shall reduce the aforesaid percentage which is required
to consent to any waiver or supplemental agreement, without the unanimous
consent of the record or beneficial holders of all of the then outstanding
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series P Preferred Stock, Series M Preferred Stock, Warrants, on a fully
converted or exercised basis, and shares issued upon the conversion or exercise
of each. Upon the effectuation of each such waiver, consent, agreement of
amendment or modification, the Company promptly shall give written notice
thereof to the record holders of the then outstanding Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series P Preferred Stock,
Series M Preferred Stock, Warrants and shares issued upon conversion or exercise
of each. This Agreement or any provision hereof may not be changed, waived,
discharged or terminated orally, but only by a statement in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, except to the extent provided in this Section 6.1.
6.2 Termination. Except with respect to the rights provided in Section
2, which terminate in accordance with Section 2.15, the rights and obligations
in this Agreement shall terminate upon the consummation of a Public Offering.
6.3 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware as such laws are applied to agreements between
Delaware residents entered into and to be performed entirely within Delaware.
6.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties.
6.5 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
6.6 Notices, Etc. Any notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery
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or upon the seventh day following mailing by registered air mail, postage
prepaid, addressed (a) if to a Stockholder, Warrantholder or Xxxxxxxx, as
indicated on Schedule 1 attached hereto, or at such other address as he or it
shall have furnished to the Company, or (b) if to the Company, to Genomic
Solutions Inc., 0000 Xxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx, 00000, and
addressed to the attention of the corporate secretary, or at such other address
as the Company shall have furnished to the Stockholders and Warrantholders, or
(c) if to any other holder of the preferred shares or of Common Stock issued
upon conversion of the preferred shares at such address as such holder shall
have furnished to the Company in writing, or, until such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
preferred shares or shares of Common Stock issued upon conversion of the
preferred shares, who so furnished an address to the Company. In addition, any
notice delivered to an address outside the United States shall be duplicated by
counterpart telex, internet e-mail or facsimile notice (if available).
6.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any securities issued or sold or to be
issued or sold hereunder, upon any breach or default of the Company under this
Agreement shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any holder of any breach or
default under this Agreement, or any waiver on the part of any holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
6.8 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall be modified in such manner as to be
valid, legal, and enforceable but so as to most nearly retain the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
6.9 Titles and Subtitles. The titles and subtitles of this Agreement
are intended for reference and shall not by themselves determine the
construction or interpretation of this Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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6.11 Expenses. The Company and each Stockholder shall pay its or his
own costs and expenses in connection with the negotiation, execution, delivery
and performance of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by themselves or by their respective representatives thereunto duly
authorized as of the day and year first above written. The undersigned
Stockholders execute this Agreement with respect to all shares of Company's
capital stock currently owned and hereafter acquired.
GENOMIC SOLUTIONS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Its: President and
Chief Executive Officer
"Stockholder" or "Warrantholder"
------------------------------------
Print Name:
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