2.02
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, made this 22nd day of February, 1996, among and between
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (individually, each a "Holder" and
collectively, the "Holders") and II-VI INCORPORATED, a Pennsylvania
corporation (the "Company").
WITNESSETH:
WHEREAS, Holders, as of the date hereof, are the record and beneficial
holders of an aggregate of 186,183 shares (the "Shares") of the
Company's common stock, no par value (the "Common Stock"); and
WHEREAS, Holders desire to have the Shares subject to the rights
described herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound hereby, the parties
hereto agree as follows:
Definitions. For purposes of this Agreement:
The term "Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same are in effect from time to time;
The term "Commission" means the Securities and Exchange Commission or
any other federal agency at the time primarily responsible for
administering the Securities Act;
The term "Merger Agreement" means the Merger Agreement and Plan of
Reorganization by and among the Company, II-VI Lightning Optical
Incorporated, Lightning Optical Corporation, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇ ▇▇▇▇ and Dr. ▇▇▇▇ ▇▇▇▇▇; and
The term "Registrable Securities" means (i) the Shares and (ii) any
capital stock of the Company issued as a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Shares, in
each case, which are held by a Holder.
Registration Under the Act. The Company shall use commercially
reasonable efforts to file, as expeditiously as possible but in no event
later than ninety (90) days of the date hereof, a registration statement
under the Act on Form S-3 (or Form S-1 if Form S-3 is not available)
(subject to obtaining all necessary consents from independent public
accountants required to file such registration statement), covering the
registration of all of the Registrable Securities then outstanding, and
the Company shall use reasonable commercial efforts to cause such
registration statement to be declared effective under the Act. The
Company is not currently aware of any reason why it would not be able to
file such registration statement within ninety (90) days of the date
hereof.
Notice of Sales. Holders shall promptly notify the Company of sales
made pursuant to any registration statement filed pursuant to this
Agreement.
Registration Procedures. Whenever required under Paragraph 2 to effect
the registration of any Registrable Securities, the Company shall:
Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use reasonable commercial
efforts to cause such registration statement to become and remain
effective; provided, however, that in connection with any proposed
registration under Paragraph 2, the Company shall in no event be
obligated to cause any such registration to remain effective for more
than twenty-four (24) months, excluding any suspension of such
effectiveness occurring as a result of an event described in the next
succeeding sentence of this Section 4(a). In connection therewith, the
Company shall use its best efforts to notify Holders of the happening of
any event during the period a registration statement is effective which
makes any statement made in such registration statement or the related
prospectus untrue in any material respect or which requires the making
of any changes in such registration statement or prospectus so that, as
of such date, the statements therein are not misleading and do not omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (which advice shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made) and use best efforts, consistent
with Company's past practices, to prepare a supplement or post-effective
amendment to a registration statement or the related prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such prospectus will not contain any 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, in
light of the circumstances under which they were made, not misleading;
provided, that the Company shall not be required to update, pursuant to
this Section 4, any such document during a period where the Company
shall, in good faith and using reasonable business judgment, believe
that the premature disclosure of any event or information would have a
material effect on the Company.
Each Holder agrees that, upon receipt of any such notice from the
Company of the happening of any event of the kind described herein, such
Holder will forthwith discontinue disposition of Registrable Securities
pursuant to such registration statement until such Holder's receipt of
the copies of the supplemented or amended prospectus, and, if so
directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
Prepare and file with the Commission 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.
Furnish to the Holders such numbers of copies of a final prospectus in
conformity with the requirements of the Act, and such other documents as
they may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by them.
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 United States jurisdictions as shall be reasonably requested by
Holders for the distribution of the securities covered by the
registration statement, 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 (unless done in a prior offering), and further
provided that (anything in this Agreement to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall require
that expenses incurred in connection with the qualification of the
securities in that jurisdiction be borne by selling shareholders, then
such expenses shall be payable by the Holders pro rata based upon the
number of shares registered, to the extent required by such
jurisdiction.
Obligation to Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this
Agreement that each Holder shall furnish to the Company such information
regarding such Holder or, the Registrable Securities held by them, and
the intended method of disposition of such securities, as the Company
shall reasonably request and as shall be required in connection with the
action to be taken by the Company hereunder.
Expenses of Registration. All expenses incurred in connection with a
registration effected pursuant to Paragraph 2 (excluding underwriters'
or brokers' discounts and commissions, if any, and counsel, advisory or
consultant fees of any selling Holder), including all registration and
qualification fees, printers' and accounting fees (except as set forth
in the Merger Agreement), and fees and disbursements of counsel for the
Company, shall be borne by the Company. Any expenses of a registered
offering under Paragraph 2 not required to be borne by the Company shall
be borne pro rata by the Holders.
Delay of Registration. Holders shall not have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
Indemnification. In the event any Registrable Securities are included
in a registration statement under this Agreement:
To the extent permitted by law, the Company will indemnify and hold
harmless each Holder joining in a registration, against any losses,
claims, damages, or liabilities, joint or several, to which they may
become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on any untrue or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus, or any amendments or
supplements thereto, or arise out of or are based upon 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
arise out of any violation by the Company of any rule or regulation
promulgated under the Act applicable to the Company and relating to
action or inaction required of the Company in connection with any
registration; provided, however, that the indemnity agreement contained
in this Section 8(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, expenses or action if such
settlement is effected without the consent of the Company nor shall the
Company be liable in any such case for any such loss, claim, damage,
liability, expenses, or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Holder.
To the extent permitted by law, each Holder will indemnify and hold
harmless the Company, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, and each agent and
any underwriter for the Company (within the meaning of the Act) against
any losses, claims, damages, or liabilities, joint or several, to which
the Company and/or any such director, officer, controlling person,
agent, or underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus, or any amendments or supplements thereto, or arise out of or
are based upon 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, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such registration statement,
preliminary or final prospectus, or amendments or supplements thereto,
in reliance upon and in conformity with information furnished by such
Holder expressly for use in connection with such registration;
provided, however, that the indemnity agreement contained in this
Section 8(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, expense or action if such settlement is
effected without the consent of such Holder, which consent shall not be
unreasonably withheld.
Promptly after receipt by an indemnified party under this paragraph of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against any indemnifying
party under this Section, notify the indemnifying party in writing 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.
The failure to notify an indemnifying party promptly of the commencement
of any such action, if prejudicial to his ability to defend such action,
shall relieve such indemnifying party of any liability to the
indemnified party under this Section, but the omission so to notify the
indemnifying party will not relieve him of any liability that he may
have to any indemnified party otherwise than under this Section.
Limitations on Transfer. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their successors and
assigns; provided, that the registration rights granted to the Holders
in Section 2 hereof may not be assigned or transferred in whole or in
part by any of the Holders.
Termination. Unless sooner terminated pursuant to the terms of this
Agreement, the obligations of the Company pursuant to Section 2 hereof
shall expire upon the earlier of: (i) the sale or other disposition of
the Registrable Securities by the Holders, (ii) twenty-four (24) months
following the effectiveness of the registration statement filed pursuant
to Paragraph 2 (subject to extension as set forth in Paragraph 4(a)
hereof), or (iii) the date when the Registrable Securities then
outstanding may be resold during the succeeding three-month period
without the Holders being required to deliver a prospectus with respect
thereto under the Act or the rules and regulations promulgated
thereunder. In addition to the foregoing, the obligations of the
Company pursuant to this Agreement shall terminate as to any Holder who
notifies the Company in writing that such Holder does not wish to have
such Holder's shares registered hereunder.
Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and
negotiations relating thereto.
Governing Law. This Agreement, together with the rights and obligations
of the parties hereunder shall be governed by and construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania without
regard to any jurisdiction's conflicts of laws provisions.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Titles and Subtitles. The titles and subtitles used in this Agreement
are for convenience only and are not to be considered in construing or
interpreting this Agreement.
Notices. Any notice, request or other communication required or
permitted under this Agreement shall be given in writing and shall be
deemed to be effectively given upon (i) personal delivery, (ii) delivery
by U.S. Express Mail or other overnight courier service which provides
evidence of delivery, (iii) legible facsimile transmission with
confirmation of receipt, or (iv) the expiration of five (5) days
following deposit with the United States Postal Service, by registered
or certified mail, postage prepaid, addressed, in each case, to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President (telecopy: 412-352-4980), with
a copy to ▇▇▇▇▇▇ ▇. German, Esquire, ▇▇▇▇▇▇▇▇, German & ▇▇▇▇▇, P.C., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy:
412-261-6221), and to any of the Holders, c/o Lightning Optical
Corporation, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(telecopy: 813-938-9493), with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire,
Johnson, Blakely, Pope, Bokor, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (telecopy: 813-
441-8617), or such other address as any party may designate by ten (10)
days advance written notice to the other party in accordance with the
provisions of this Section.
Amendments. This Agreement may not be amended without the written
consent of the holders of at least a majority of the then outstanding
Registrable Securities.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by a duly authorized officer or partner as of the day first
above written.
HOLDERS:
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
WITNESS: II-VI INCORPORATED
▇▇▇▇▇▇ ▇. German By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary Title: President
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