Exhibit 4.04
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of the 6th day of January,
2000, is entered into by and between Xxxxxx Automation, Inc., a Delaware
corporation (the "Company"), and Daifuku America Corporation, an Illinois
corporation ( "Investor").
RECITALS
WHEREAS, the Company and the Investor are parties to a certain
Agreement and Plan of Merger dated December 15, 1999 among the Company, ASC
Merger Corp., ASI Merger Corp., Investor, and Daifuku Co., Inc. (the
"Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires that the Investors and the
Company enter into a certain Shareholder Agreement dated January 6, 2000,
relating to voting and stock transfers by the Investor (the "Shareholder
Agreement"); and
WHEREAS, among the conditions to the consummation of the transactions
contemplated by the Purchase Agreement is the execution and delivery of a
Registration Rights Agreement providing certain registration rights for the
Investor; and
WHEREAS, the parties hereto desire to set forth herein the registration
rights of the Investor;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and for other good and valuable consideration
the Company and Investor hereby agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Anniversary Date" means the first, second or third anniversary of the
Closing Date as defined in the Purchase Agreement.
"Charter" means the Certificate of Incorporation of the Company, as
amended.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act and the Exchange
Act.
"Common Stock" means (a) the Company's Common Stock, $.01 par value, as
authorized on the date of this Agreement, (b) any other capital stock of any
class or classes (however designated) of the Company, authorized on or after the
date hereof, the holders of which shall have the right, without limitation as to
amount, either to all or to a share of the balance of current
Registration Rights Agreement -1-
Execution Copy
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of which
shall ordinarily, in the absence of contingencies or in the absence of any
provision to the contrary in the Company's Charter, be entitled to vote for the
election of a majority of directors of the Company (even though the right so to
vote may have been suspended by the happening of a contingency), and (c) any
other securities into which or for which any of the securities described in (a)
or (b) may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
"Company Indemnified Person" means the Company, its directors, each of its
officers who have signed or otherwise participated in the preparation of the
registration statement, each underwriter of the Registrable Securities so
registered (including any broker or dealer through whom such of the shares may
be sold) and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
at the time.
"Excluded Registration" means a registration under the Securities Act of
shares issued solely in connection with any acquisition of any entity or
business, shares issuable solely upon the exercise of stock options, or shares
issuable solely pursuant to employee benefit plans, including Registration
Statements on Form X-0, X-0 or any successor form.
"Investor Indemnified Person" means the Investor and each underwriter of
the Registrable Shares (including their officers, directors, affiliates and
partners) so registered (including any broker or dealer through whom such shares
may be sold) and each Person, if any, who controls such Investor or any such
underwriter within the meaning of Section 15 of the Securities Act.
"Liabilities" for purpose of Sections 6 and 7 of this Agreement includes
any claims, damages, losses, and liabilities or expenses.
"Material Adverse Effect" means (a) a material adverse effect on the
results of operations, business or financial condition of the Company, or (b)
any material limitation on the ability of the Company to perform its obligations
under, or the legality, validity or enforceability of, this Agreement.
"Person" means an individual, corporation, partnership, joint venture,
limited liability company, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Purchase Agreement" has the meaning indicated in the first Recital to
this Agreement.
"Purchased Shares" means the shares of Common Stock purchased by the
Investors pursuant to the Purchase Agreement.
Registration Rights Agreement -2-
Execution Copy
"Registrable Securities" means the Purchased Shares; provided, however,
that Purchase Shares shall cease to be Registrable Securities upon any sale
pursuant to a registration statement under the Securities Act, Section 4(1) of
the Securities Act or Rule 144 promulgated under the Securities Act, or any
sale, transfer or assignment in any manner to any Person who, by virtue of
Section 13 hereof, is not entitled to the rights provided by this Agreement.
"Registration Statement" means a registration statement filed under the
Securities Act pursuant to this Agreement.
"Securities Act" means the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Shareholder Agreement" has the meaning indicated in the second Recital to this
Agreement.
Section 2. Short Form Demand Registrations.
(a) On the first, second and third Anniversary Dates, the number of the
Purchased Shares which remain subject to restrictions under Section 2.1 of the
Shareholder Agreement shall be reduced pursuant thereto. Not earlier than sixty
days prior to each Anniversary Date nor later than the later of (i) ninety days
after that Anniversary Date or (ii) sixty days after the expiration of any
stand-down period under paragraph (e) or Section 10 hereof, which prevented
exercise of registration rights the Investor may notify the Company in writing
that it intends to offer or cause to be offered for public sale all or any
portion (subject to paragraph (c) below) of the Registrable Securities which
previously have been released from the restrictions of Section 2.1 of the
Shareholder Agreement or will be released from those restrictions on that
Anniversary Date.
(b) Provided that the registration of Registrable Securities under the
Securities Act can be effected on Form S-3 (or any similar form promulgated by
the Commission which permits short form registration using extensive
incorporation by reference), the Company will use its best efforts to effect
qualification and registration under the Securities Act on said Form S-3 or
other short form registration of all or such portion of the Registrable
Securities as the Investor shall specify.
(c) Notwithstanding paragraph (a) above, the Company shall not be obligated
to effect any registration unless the market value of the Registrable Securities
to be sold in any such Registration Statement shall be estimated to be at least
$2,000,000 at the time of filing such Registration Statement.
(d) The obligations of the Company pursuant to this Section 2 shall expire
the later of (i) ninety days after the third Anniversary Date or (ii) sixty days
after the expiration of any stand-down period under paragraph (e) or Section 10
hereof.
(e) If, prior to the time of any request by Investor pursuant to this
Section 2, the Company has publicly announced its intention to register any of
its securities for a public offering under the Securities Act, no registration
of Registrable Securities shall be initiated
Registration Rights Agreement -3-
Execution Copy
pursuant to this Section 2 until 120 days after the effective date of the
registration so announced, unless the Company is no longer proceeding diligently
to effect such registration.
(f) The Company may include in each Registration Statement under this
Section 2 any authorized but unissued shares of Common Stock (or authorized
treasury shares) for sale by the Company, and any other Persons having a
contractual, incidental "piggy back" right to include securities in a
Registration Statement may include in each such Registration Statement, that
Person's shares of Common Stock subject to such right (a); provided, however,
that any such shares of Common Stock to be offered by the Company or such other
Person shall be excluded from such Registration Statement to the extent that the
managing underwriter of the offering (if the offering is underwritten) or the
Investor (if the offering is not underwritten) (i) determines in good faith that
the inclusion of such shares will interfere with the successful marketing of the
Registrable Securities to be included in the Registration Statement and (ii)
provides written notice of such determination to the Company. If a requested
registration involves an underwritten public offering and the managing
underwriter of such offering determines in good faith that the number of
securities sought to be offered should be limited due to market conditions, then
the number of securities to be included in such underwritten public offering
shall be reduced to a number deemed satisfactory by such managing underwriter,
provided that the securities to be excluded shall be excluded in the following
order of priority: first, all or any portion of the securities held by any other
Persons (other than the Investor) having a contractual, incidental "piggy back"
right to include such securities in a Registration Statement; and second, all or
any portion of the securities offered on behalf of the Company.
Section 3. "Piggy-Back" Registrations.
(a) In addition to its rights under Section 2 hereof, if at any time prior
to the third Anniversary Date the Company shall determine to register any of its
securities, other than an Excluded Registration, under the Securities Act
(including pursuant to a demand of any stockholder of the Company exercising
registration rights whose contractual rights do not prohibit inclusion of the
Registrable Securities), the Company shall send to Investor written notice of
such determination as soon as practicable, but in any event not less than 20
business days prior to the effective date of the Registration Statement. Subject
to the terms of this Agreement, such notice shall offer the Investor the
opportunity to register such number of shares of Registrable Securities as such
Investor may request on the same terms and conditions as the other securities to
be registered. In the event that the Investor desires to have its Registrable
Securities included in such Registration Statement, it shall so advise the
Company, in writing, stating the number of Registrable Securities that it
desires be registered, within 10 business days after the date of such notice
from the Company. The Investor shall have the right to withdraw such request for
the inclusion of the Investor's Registrable Securities in a Registration
Statement pursuant to this provision by giving written notice thereof to the
Company of said withdrawal at least five business days prior to the effective
date of the subject Registration Statement. The Company will, subject to the
limits of this Section 3, use its best efforts to include in such Registration
Statement all or any part of the Registrable Securities Investor requests to be
registered therein. However, if, in connection with any offering involving an
underwriting of the Common Stock to be issued by the Company, the managing
underwriter shall impose in writing a
Registration Rights Agreement -4-
Execution Copy
limitation on the number of shares of such Common Stock which may be included in
any such Registration Statement because it has determined in good faith that the
inclusion of such shares will interfere with successful marketing of the Common
Stock and there is excluded from such Registration Statement all shares of
Common Stock sought to be included therein (i) first by any holder thereof not
having any such contractual, incidental registration rights, and (ii) second by
any holder thereof having contractual, incidental registration rights
subordinate and junior to the rights of the Investor, then the Company shall be
obligated to include in such Registration Statement only the pro rata portion of
all remaining securities, including the Registrable Securities, the sum of which
equals the number of shares of Common Stock determined in good faith by the
managing underwriters.
(b) The rights granted by the Company under this Section 3 shall terminate
on the earlier of (i) the third Anniversary Date or (ii) the date when the
Company has effected two incidental piggy-back registrations for the benefit of
the Investor hereunder. Notwithstanding the foregoing, if the managing
underwriter limits the Registerable Securities to be registered pursuant to
incidental piggy-back registration rights such that the Investor is unable to
register at least 50% of the Registerable Securities it requested be included in
such registration, then such registration shall not be considered an incidental
piggy-back registration for the purposes of this Section 3(b)(ii).
Section 4. Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to effect the registration of
Registrable Securities under the Securities Act, the Company will:
(a) promptly prepare and file with the Commission within 90 days a
Registration Statement with respect to such securities, and use its best efforts
to cause such Registration Statement to become effective;
(b) maintain the effectiveness of the Registration Statement until the
earlier to occur of (i) the completion by the underwriters of the distribution
pursuant to such Registration Statement or (ii) ninety days after the
effectiveness of such Registration Statement;
(c) provide Investor and any underwriter with as many copies of the
preliminary and final prospectus as either party may reasonably request for the
period effectiveness is required to be maintained under paragraph (b) above;
(d) prepare and promptly file with the Commission any such amendment or
supplement to such Registration Statement or prospectus as may be necessary to
maintain effectiveness for the period under paragraph (b) or to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
Registration Rights Agreement -5-
Execution Copy
(e) prepare and file with the Commission, promptly upon the request of
Investor, any amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel for Investor (and concurred in by
counsel for the Company), is required under the Securities Act or the rules and
regulations thereunder in connection with the distribution of the Registrable
Securities by Investor;
(f) promptly notify Investor and any underwriter and (if requested by any
such Person) confirm such notice in writing, of the happening of any event which
makes any statement made in the Registration Statement or related prospectus
untrue or which requires the making of any changes in such Registration
Statement or prospectus so that such document will not contain any untrue
statement of a material fact or omit to state any 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; and, as promptly as
practicable thereafter, prepare and file with the Commission and furnish a
supplement or amendment to such prospectus so that, as thereafter deliverable to
the purchasers of such Registrable Securities, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(g) notify Investor promptly after the Company shall receive notice
thereof, of the time when such Registration Statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(h) notify Investor promptly of any request by the Commission for the
amending or supplementing of such Registration Statement or prospectus or for
additional information;
(i) advise Investor promptly after the Company shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued;
(j) furnish to Investor a copy of all documents filed and all
correspondence from or to the Commission in connection with any such offering of
securities;
(k) register or qualify the Registrable Securities covered by said
Registration Statement under the applicable securities or "blue sky" laws of
such jurisdictions as Investor may reasonably request; provided, that the
Company shall not be obligated to qualify to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to the service of process in suits other than those arising out of the offer or
sale of the securities covered by the registration statement in any jurisdiction
where it is not then so subject; and
(l) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
Registration Rights Agreement -6-
Execution Copy
Section 5. Further Obligations of the Parties.
(a) Whenever the Company is required to register Registrable Securities
hereunder, it agrees that it shall also do the following:
(i) Upon three days' prior written notice and at reasonable times during
normal business hours and without undue interruption of the
Company's business or operations, permit Investor or its counsel or
other representatives to inspect and copy such corporate documents,
records and properties as may reasonably be requested by them to
enable them to exercise their due diligence responsibilities, and
cause the Company's officers and agents to supply any information
reasonably requested for that purpose;
(ii) Enter into any reasonable underwriting agreement required by the
proposed underwriters for the Investor and use its best efforts to
facilitate the public offering of the securities;
(iii) In connection with any underwritten public offering of such
Registrable Securities, furnish to each selling holder a copy of:
(A) an opinion of counsel for the Company, dated the effective
date of the registration Statement; and
(B) a "comfort letter" signed by the Company's independent public
accountants who have examined and reported on the Company's
financial statements included in the Registration Statement,
to the extent permitted by the applicable standards of the
American Institute of Certified Public Accountants;
in each case covering substantially the same matters with respect to
the Registration Statement (and the prospectus included therein) and
with respect to events subsequent to the date of the financial
statements, as are customarily covered in opinions of issuer's
counsel and in accountants' "comfort letter" delivered to the
underwriters in underwritten public offerings of securities in
accordance with Statement on Auditing Standards No. 72, but only to
the extent that the Company is required to deliver or cause the
delivery of such opinion or "comfort letter" to the underwriter in
the offering; and
(iv) Use its best efforts to insure the obtaining of all necessary
approvals from the National Association of Securities Dealers, Inc.
(g) Investor agrees to timely provide to the Company, at its request, such
information and materials as it may reasonably request in order to effect the
registration of such Registrable Securities. The Company shall not be obligated
to register Registrable Securities, pursuant to
Registration Rights Agreement -7-
Execution Copy
Section 2 or Section 3 hereof if Investor fails promptly to provide the Company
such information.
Section 6. Indemnification of Investor Indemnified Persons.
(a) In the event that the Company registers any of the Registrable
Securities under the Securities Act, the Company will, to the extent permitted
by law, indemnify and hold harmless each Investor Indemnified Person from and
against any and all Liabilities, joint or several, to which they or any of them
become subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the
Investor Indemnified Persons for any legal or other expenses reasonably incurred
by them or any of them in connection with investigating or defending any
actions, whether or not resulting in any Liability, insofar as such Liabilities
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
filing with any state securities authority, in any preliminary or amended
preliminary prospectus or in the final prospectus (or the Registration Statement
or prospectus as from time to time amended or supplemented by the Company) 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 in order to make the
statements therein not misleading, or any violation by the Company of any rule
or regulation promulgated under the Securities Act or any state securities laws
or regulations applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, unless (i) such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, preliminary or amended preliminary
prospectus or final prospectus in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith by
Investor expressly for use therein or unless (ii) in the case of a sale directly
by Investor (including a sale of such Registrable Securities through any
underwriter retained by Investor to engage in a distribution solely on behalf of
Investor), such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus, and Investor failed to deliver a copy of the final
or amended prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the Person asserting any such loss, claim, damage or
liability in any case where such delivery is required by the Securities Act or
any state securities laws.
(b) Promptly after receipt by any Investor Indemnified Person of notice of
the commencement of any action in respect of which indemnity may be sought
against the Company, such Investor Indemnified Person will notify the Company in
writing of the commencement thereof, and, subject to the provisions hereinafter
stated, the Company shall assume the defense of such action (including the
employment of counsel, who shall be counsel reasonably satisfactory to such
Investor Indemnified Person) and the payment of expenses insofar as such action
shall relate to any alleged Liabilities in respect of which indemnity may be
sought against the Company.
(c) Such Investor Indemnified Person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
Company unless the employment of such counsel has
Registration Rights Agreement -8-
Execution Copy
been specifically authorized by the Company. The Company shall not be liable to
indemnify any Investor Indemnified Person for any settlement of any such action
effected without the Company's consent. The Company shall not, except with the
approval of each Investor Indemnified Person being indemnified under this
Section 6, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to the parties being so indemnified of a release from all liability in
respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which any Investor Indemnified
Person makes a claim for indemnification pursuant to this Section 6 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 6 provides for indemnification in
such case, then the Company and such Investor Indemnified Person will contribute
to the aggregate Liabilities to which they may be subject (after contribution
from others) in such proportion so that Investor Indemnified Person is
responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the Registration
Statement bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; but if it is determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such allocation may not be enforced,
then the Company and such Investor Indemnified Person shall contribute to the
aggregate Liabilities as is appropriate to reflect the relative fault of the
Company on the one hand and of the Investor Indemnified Person on the other in
connection with the statements or omissions which resulted in such Liabilities,
as well as any other relevant equitable consideration. The relative fault of the
Company on the one hand and of the Investor Indemnified Person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the Investor Indemnified Person on the other, and each party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that, in any such case no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation.
Section 7. Indemnification of Company Indemnified Persons.
(a) In the event that the Company registers any of the Registrable
Securities under the Securities Act, the Investor, to the extent permitted by
law, will indemnify and hold harmless the Company Indemnified Persons from and
against any and all Liabilities, joint or several, to which they or any of them
may become subject under the Securities Act or under any other statute or at
common law or otherwise, and, except as hereinafter provided, will reimburse
each such Company Indemnified Person for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or defending
any actions, whether or not resulting in any Liability, insofar as such
Liabilities arise out of or are based upon any untrue statement or alleged
Registration Rights Agreement -9-
Execution Copy
untrue statement of a material fact contained in the Registration Statement or
any filing with any state securities commission or agent, in any preliminary or
amended preliminary prospectus or in the final prospectus (or in the
Registration Statement or prospectus as from time to time amended or
supplemented) 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 in
order to make the statements therein not misleading, but only insofar as any
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith by the
Investor expressly for use therein.
(b) Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against such Company Indemnified
Person, the Company will notify Investor in writing of the commencement thereof,
and Investor shall, subject to the provisions hereinafter stated, assume the
defense of such action (including the employment of counsel, who shall be
counsel reasonably satisfactory to the Company) and the payment of expenses
insofar as such action shall relate to the alleged Liabilities in respect of
which indemnity may be sought against Investor.
(c) Each Company Indemnified Person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall not be at the expense of Investor unless
employment of such counsel has been specifically authorized by Investor. The
Investor shall not be liable to indemnify any Company Indemnified Person for any
settlement of any such action effected without its consent. Investor shall not,
except with the approval of each party being indemnified under this Section 7,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to the parties being so indemnified of a release from all liability with respect
to such claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the Company Indemnified
Person makes a claim for indemnification pursuant to this Section 7, but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding that this Section 7 provides for indemnification, in such case,
then, the Company and Investor will contribute to the aggregate Liabilities to
which they may be subject (after contribution from others) in such proportion so
that Investor is responsible for the portion represented by the percentage that
the public offering price of its Registrable Securities offered by the
Registration Statement bears to the public offering price of all securities
offered by such Registration Statement, and the Company is responsible for the
remaining portion; but if it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such allocation
may not be enforced, then the Investor and such Company Indemnified Person shall
contribute to the aggregate Liabilities as is appropriate to reflect the
relative fault of the Company on the one hand and of the Investor on the other
in connection with the statements or omissions which resulted in such
Liabilities, as well as any other relevant equitable consideration. The relative
fault of the Company on the one hand and of the Investor on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement
Registration Rights Agreement -10-
Execution Copy
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Investor on the other, and each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
Section 8. Rule 144. So long as the Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act, the
Company will use its best efforts to file timely with the Commission such
information as the Commission may require under either of said sections. The
Company shall use its best efforts to take all action as may be required as a
condition to the availability of Rule 144 under the Securities Act (or any
successor exemptive rule hereinafter in effect) with respect to such Common
Stock. The Company shall furnish to Investor forthwith upon request (i) a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company as filed with the Commission, and (iii) such other reports
and documents as a Investor may reasonably request in availing itself of any
rule or regulation of the Commission allowing a holder to sell any such
Registrable Securities without registration.
Section 9. Expenses of Registration.
(a) In the case of any registration under Section 2 or 3 of this Agreement,
the Company shall bear all costs and expenses of each such registration,
including but not limited to printing, legal and accounting expenses, Securities
and Exchange Commission and National Association of Securities Dealers, Inc.
filing fees and expenses, and "blue sky" fees and expenses and the reasonable
fees and disbursements of not more than one counsel for the selling holders of
Registrable Securities in connection with the registration of their Registrable
Securities; provided, however, that the Company shall have no obligation to pay
or otherwise bear (i) the cost and expenses of procuring underwriters' insurance
in connection with the sale of Registrable Securities, (ii) any portion of the
fees or disbursements of more than one counsel for Investor in connection with
the registration of the Registrable Securities, (iii) any portion of the
underwriters' commissions or discounts attributable to the Registrable
Securities being offered and sold by the Investor, or (iv) in the case of the
registration under Section 2, any costs and expenses which (exclusive of
underwriters' commissions or discounts) exceed an amount equal to 3% of the
aggregate gross proceeds of the offering under the Registration Statement filed
pursuant to Section 2. Notwithstanding the foregoing, any underwriters'
commissions of any registration under Section 3 shall be borne pro rata by the
Company, the other stockholders registering securities and the Investor, based
upon the aggregate gross proceeds attributable to each such Person.
(b) The Company shall pay all expenses in connection with any registration
initiated pursuant to Section 2 or 3 which is withdrawn, delayed or abandoned at
the request of the Company, unless such registration is withdrawn, delayed or
abandoned solely because of any actions of the Investor.
Registration Rights Agreement -11-
Execution Copy
Section 10. Right of Company To Delay Registration. For a period not to
exceed 120 days, the Company shall not be obligated to prepare and file, or
prevented from delaying or abandoning, a Registration Statement pursuant to this
Agreement at any time when the Company, in its good faith judgment with advice
of counsel, reasonably believes:
(a) that the filing thereof at the time requested, or the offering of
Registrable Securities pursuant thereto, would materially and adversely affect
(a) a pending or schedule public offering of the Company's securities, (b) an
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction by or of the Company, (c) pre-existing and continuing negotiations,
discussions or pending proposals with respect to any of the foregoing
transactions, or (d) the financial condition of the Company, in view of the
disclosure of any pending or threatened litigation, claim, assessment or
governmental investigation which may be required; and
(b) that the failure to disclose any material information with respect to
the foregoing would cause a violation of the Securities Act or the Exchange Act.
Section 11. Conditions to Registration Obligations. The Company shall not
be obligated to effect the registration of Registrable Securities pursuant to
Section 2 or 3 unless all holders of shares being registered consent to such
reasonable conditions as the Company shall determine (with the advice of
counsel) are required by law, including without limitation:
(a) conditions prohibiting the sale of shares until the Registration
Statement shall have been effective for a specified period of time;
(b) conditions requiring the holder to comply with all prospectus delivery
requirements of the Securities Act and with all anti-stabilization,
anti-manipulation and similar provisions of Section 10 of the Exchange Act and
any rules issued thereunder by the Commission, and to furnish to the Company
information about sales made in such public offering;
(c) conditions prohibiting the holders upon receipt of telegraphic or
written notice from the Company (until further notice) from effecting sales of
shares, such notice being given to permit the Company to correct or update a
registration statement or prospectus;
(d) conditions requiring that at the end of the period during which the
Company is obligated to keep the Registration Statement effective under Section
4, the holders of shares included in the Registration Statement shall
discontinue sales of shares pursuant to such Registration Statement upon receipt
of notice from the Company of its intention to remove from registration the
shares covered by such Registration Statement that remain unsold, and requiring
them to notify the Company of the number of shares registered that remain unsold
immediately upon receipt of notice from the Company; and
(e) conditions requiring the Investor to enter into an underwriting
agreement in form and substance reasonably satisfactory to the Company, provided
that (i) any managing
Registration Rights Agreement -12-
Execution Copy
underwriter engaged by the Company in any offering made pursuant to Section 3
shall require the approval in writing of Investor, which consent shall not be
unreasonably withheld, and (ii) any managing underwriter engaged by the Investor
in any offering made pursuant to Section 2 shall require the approval in writing
of the Company, which shall not be unreasonably withheld.
Section 12. Market Stand-Off Agreement.
(a) Investor agrees that in the event the Company proposes to offer for
sale to the public any of its equity securities and (i) if Investor holds
beneficially or of record five percent (5%) or more of the outstanding equity
securities of the Company, (ii) if requested by the Company and an underwriter
of Common Stock or other securities of the Company, and (iii) if all other
"affiliates" and such 5% stockholders are requested by the Company and such
underwriter to sign, and actually do sign, any agreement restricting the sale or
other transfer of shares of the Company, then it will not sell, assign, donate,
pledge, encumber, hypothecate, grant an option to, or otherwise transfer or
dispose of, whether in privately negotiated transactions or to the public in
open market transactions, any Common Stock or other securities of the Company
held by it (except those securities which are to be included in such
registration by the Company) during the 120 day period following the effective
date of the registration statement of the Company filed under the Securities
Act. Such agreement shall be in writing and in form and substance reasonably
satisfactory to the Investor, the Company and such underwriter and pursuant to
customary and prevailing terms and conditions. The Company may imposed
stop-transfer instructions with respect to the Shares (or securities) subject to
the foregoing restrictions until the end of said 120 day period.
Section 13. Transferability of Registration Rights. The registration rights
granted to Investor by this Agreement may not be assigned to any other Person,
except that they may be assigned: (i) to any business entity controlled by,
controlling, or under common control with Investor, (ii) to the ultimately
surviving or controlling Person in connection with any merger, consolidation,
sale of stock or sale of substantially all of the assets of Daifuku Co., Inc.,
or (iii) with the consent of the Company; provided in each case that such
assignee or transferee agrees in writing to be bound by all of the provision of
this Agreement. To the extent transferred or assigned as permitted herein, all
references to Investor shall be interpreted to include any such transferee or
assignee. Subject to this Section 13, this Agreement shall be binding upon and
inure to the benefit of the Company and the Investor and their respective heirs,
successors and assigns, except that the Company shall not have the right to
delegate its obligations hereunder or to assign its rights hereunder or any
interest herein without the prior written consent of the Investor.
Section 14. Miscellaneous.
(a) No Waiver; Cumulative Remedies. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Registration Rights Agreement -13-
Execution Copy
(b) Amendments, Waivers and Consents. Changes in or additions to this
Agreement may be made and compliance with any covenant or provision set forth
herein may be omitted or waived by the written agreement of the Company and
Investor.
(c) Notices. All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
fax (with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses or fax numbers
set forth below (or to such other address, person's attention or fax number as a
party may designate by notice to the other parties given in accordance with this
Section):
(i) If to Company:
Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
With a copy to:
Brown, Rudnick, Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Esquire
(ii) If to the Investor:
Daifuku America Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
Registration Rights Agreement -14-
Execution Copy
With a copy to:
Masuda, Funai, Xxxxxx & Xxxxxxxx
Two Continental Towers
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000-0000
Tel: (847) .000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
(d) Prior Agreements. This Agreement, constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
concerning the subject matter hereof.
(e) Severability. The provisions of this Agreement, are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained in this Agreement,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement or such other
agreements; but this Agreement and such other agreements, shall be reformed and
construed as if such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provisions or part reformed
so that it would be valid, legal and enforceable to the maximum extent possible.
(f) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware and without giving
effect to choice of laws provisions thereof.
(g) Headings. Articles, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(i) Further Assurances. From and after the date of this Agreement, upon the
request of any Investor or the Company, the Company and the Investor shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
Registration Rights Agreement -15-
Execution Copy
In Witness Whereof, the parties hereto have executed, or caused to be
executed by their authorized official, effective as of the date first above
written.
XXXXXX AUTOMATION, INC.
Address:
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
DAIFUKU AMERICA CORPORATION
Address:
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000 By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Registration Rights Agreement -16-
Execution Copy
