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Exhibit 99.05
Name: _________________________
SELLING STOCKHOLDER AGREEMENT
AGREEMENT, dated as of February __, 2000 (the "Agreement"), among Xxxxxx
Automation, Inc., a Delaware corporation (the "Company"), and each stockholder
of the Company listed on Exhibit A, attached hereto (collectively the "Selling
Stockholders").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has determined that a
public offering (the "Public Offering") of the Company's Common Stock, $.01 par
value (the "Common Stock"), would be beneficial to the Company and its
stockholders and proposes to issue shares of Common Stock (the "Company Shares")
for such purpose; and
WHEREAS, the Company also has determined that it would be beneficial to
the Company and its stockholders for certain stockholders to have the
opportunity to sell in the Public Offering a portion of the shares of Common
Stock held by such stockholders; and
WHEREAS, the Company has offered such stockholders such opportunity and
the Selling Stockholders propose to accept such offer and sell in the Public
Offering an aggregate of up to ______________ shares of Common Stock (the
"Stockholder Shares").
NOW THEREFORE, in consideration of the premises and the mutual and
dependent promises hereinafter set forth and such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. PAYMENT OF EXPENSES.
(a) The Company shall pay (i) all of the expenses, other than
underwriting discounts, incurred in connection with the Public Offering
(including, but not limited to, all registration, filing and qualification fees,
transfer agent's fees, printing and engraving fees and legal and accounting
fees), and (ii) the Company's pro rata portion of all underwriting discounts
incurred in connection with the Public Offering, determined in accordance with
the number of Company Shares and Stockholder Shares actually sold by each
respective party in the Public Offering.
(b) Each Selling Stockholder shall pay such Selling
Stockholder's pro rata portion of all underwriting discounts incurred in
connection with the Public Offering, determined in accordance with the number of
Company Shares and Stockholder Shares actually sold by each respective party in
the Public Offering.
(c) Notwithstanding the provisions of this Section 1 or any
other agreement of the Company to pay certain expenses of the Public Offering,
if the payment of any such expenses by the Company shall be prohibited by any
state Blue Sky or securities regulatory
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commission in a jurisdiction in which Shares are offered, then each Selling
Stockholder agrees to pay his or its pro rata portion of any such expenses
determined in accordance with the number of Company Shares and Stockholder
Shares actually sold by each respective party in the Public Offering.
SECTION 2. INDEMNIFICATION; CONTRIBUTION.
(a) The Company shall indemnify each of the Selling
Stockholders, and each person (if any) who controls such Selling Stockholder
within the meaning of Section 15 of the Securities Act of 1933, as amended (the
"Act"), against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement filed or to be filed with the Securities and Exchange
Commission (the "Commission"), in connection with the Public Offering, as the
same may be amended or supplemented from time to time (the "Registration
Statement") or in any prospectus filed with, or delivered to, the Commission in
connection with the Public Offering, or caused by any omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances in which they
were made, not misleading; provided, however, insofar as such losses, claims,
damages, or liabilities are caused by an untrue statement of a material fact
contained in, or any material fact omitted from, information relating to a
Selling Stockholder furnished in writing to the Company by such Selling
Stockholder for use in the Registration Statement or any amendment or supplement
thereto, or any such prospectus, then the Company shall have no obligation
hereunder to indemnify the Selling Stockholder furnishing such information.
(b) Each Selling Stockholder shall indemnify each of the Company
and the other Selling Stockholders, and each person (if any) who controls the
Company or such other Selling Stockholder within the meaning of Section 15 of
the Act against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any prospectus filed with, or delivered to, the
Commission in connection with the Public Offering, or caused by any omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, but only with respect to information
relating to such Selling Stockholder furnished in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration Statement or any
amendment or supplement thereto, or any such prospectus, PROVIDED, HOWEVER, no
Selling Stockholder shall be liable in an amount that exceeds the aggregate
public offering price of the Stockholder Shares sold by the Selling Stockholder,
net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling
Stockholders contained in this Section 2 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive delivery of shares of Common Stock pursuant
to the Public Offering.
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(d) In order to provide for just and equitable contribution in
circumstances in which indemnification provided for in paragraphs (a) or (of
this Section 2 is unavailable, the Company and each of the Selling Stockholders
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses (including all reasonable fees and disbursements of counsel incurred in
defending against any claim, damage, or liability), to which one or more of the
Selling Stockholders may be subject in such proportion as is appropriate to
reflect the relevant fault of the Company and the respective Selling
Stockholders in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities and expenses as well as any other
relevant equitable considerations; PROVIDED, HOWEVER, that:
(i) in any case where any Selling Stockholder is
seeking contribution hereunder such Selling Stockholder shall be entitled to
contribution from the remaining Selling Stockholders pursuant to this Agreement
only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be
required to contribute or make any payments under this paragraph (d) which in
the aggregate exceed his pro rata share of such losses, claims, damages,
liabilities and expenses determined in accordance with the total number of
Company Shares and Stockholder Shares sold by each respective party hereto
PROVIDED, HOWEVER, that no Selling Stockholder shall be liable to contribute an
amount that exceeds the aggregate public offering price of the Stockholder
Shares sold by the Selling Stockholder, net of the underwriting discount; and
(iii) neither the Company nor any Selling
Stockholder will be required to make any contribution to another Selling
Stockholder with respect to matters for which the other Selling Stockholder
would not otherwise be entitled to be indemnified under paragraph (a) of this
Section 2 had such indemnification been available.
SECTION 3. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts.
SECTION 4. INVALIDITY.
If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the remaining provisions of the Agreement, all of which shall remain
in full force and effect.
SECTION 5. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
SECTION 6. NOTICES.
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Any notice given pursuant to this Agreement shall be sent by certified
mail, return receipt requested, to the address set forth under each party's name
on the signature page of this Agreement, or to such other address as may be
designated by notice given to each party pursuant to the provisions hereof.
SECTION 7. HEADINGS.
The headings contained in this Agreement are for descriptive purposes
only and shall not be given substantive effect.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement under seal as of the day and year first written above.
XXXXXX AUTOMATION, INC.
By: _____________________________
Xxxxxx X. Xxxxxxxx, President
SELLING STOCKHOLDERS
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Address:
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EXHIBIT A
SELLING STOCKHOLDERS
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER(S) TO BE SOLD BE SOLD
---------------------- --------------- -------------
Daifuku America Corporation 150,000 100,000
Xxxxxx Xxxxxxxx 255,000 45,000
Xxxxx Xxxxxxxx 5,000 1,000
Xxxxx Xxxxxxxxx 7,000 1,000
Xxxxx Xxxxxx 9,000 1,000
Xxxxxxx Xxxxxxx 33,000 5,000
Xxxxxxx Xxxxxx 36,000 4,000
Xxxxx Xxxxxxxx 2,500 --
Xxxxxx Xxxxxx 2,500 --
-------- -------
500,000 165,000
Total ........................................ ======== =======
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