EXHIBIT 10.28
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
June 18, 1999 by and among Tetra Tech, Inc., a Delaware corporation ("Tetra
Tech"), and the parties listed on SCHEDULE A attached hereto (each, a "Holder"
and collectively, the "Holders").
R E C I T A L S
A. Tetra Tech and the Holders are parties to an Agreement and Plan of
Reorganization of even date (the "Reorganization Agreement"), pursuant to which
XXXX Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary
of Tetra Tech, will merge with and into Utilities & C.C., Inc., a California
corporation ("XXXX").
B. Pursuant to the Reorganization Agreement, the shareholders of XXXX
will receive shares of the common stock, $.01 par value, of Tetra Tech
("Tetra Tech Common Stock"); and
C. This Agreement is the Registration Rights Agreement referred to in
SECTION 6.2 of the Reorganization Agreement and, pursuant thereto, must be
entered into by the parties in connection with the consummation of the
transactions contemplated by the Reorganization Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"FORM S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by Tetra Tech with the SEC.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and
all material incorporated by reference in such Prospectus.
"REGISTER", "REGISTERED" and "REGISTRATION" shall mean and refer to
a registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
"REGISTRATION EXPENSES" shall have the meaning set forth in
SECTION 4.
"REGISTRABLE SECURITIES" shall mean the shares of Tetra Tech Common
Stock (i) issued pursuant to the Reorganization Agreement, and (ii) issued as
a dividend or other distribution with respect to or in exchange for or in
replacement of the shares referenced in (i) above; PROVIDED, HOWEVER, that
Registrable Securities shall not include any shares of Tetra Tech Common
Stock that have previously been registered or sold to the public or have been
sold pursuant to Rule 144 ( or similar successor Rule).
"REGISTRATION STATEMENT" shall mean any registration statement of
Tetra Tech in compliance with the Securities Act that covers Registrable
Securities pursuant to the provisions of this Agreement, including, without
limitation, the Prospectus, all amendments and supplements to such
Registration Statement, including all post-effective amendments, all exhibits
and all material incorporated by reference in such Registration Statement.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act
or any similar successor rule, as the same shall be in effect from time to
time.
"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act or any similar successor rule, as the same shall be in effect from time
to time.
"RULE 415" shall mean Rule 415 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time
to time.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SEC" shall mean the Securities and Exchange Commission.
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"UNDERWRITTEN OFFERING" shall mean a registration in which
securities of Tetra Tech are sold to an underwriter or through an underwriter
as agent for reoffering to the public.
2. REGISTRATION.
(a) Tetra Tech shall file a Registration Statement on Form S-3,
providing for the sale by the Holders, pursuant to Rule 415, and/or any
similar rule that may be adopted by the SEC, of the Registrable Securities.
Tetra Tech shall use commercially reasonable efforts to cause such
Registration Statement to become effective on or before October 18, 1999, and
to keep such Registration Statement continuously effective for a period
ending on the date on which all such Holders are eligible to sell Registrable
Securities under Rule 144 (or similar successor rule) without any volume
limitation. If, at the time Tetra Tech is required to file a Registration
Statement pursuant to this SECTION 2(a), Tetra Tech is not eligible to file a
Registration Statement on Form S-3 to register resales by stockholders, Tetra
Tech shall initially file a Registration Statement on Form S-1 and shall
comply with the provisions of the immediately preceding sentence. Upon
becoming eligible to use the Registration Statement on Form S-3 to register
resales by stockholders (whether pursuant to a ruling or waiver from the SEC
or otherwise), Tetra Tech shall promptly file a Registration Statement on
Form S-3 or convert the existing Registration Statement to Form S-3 relating
to the offer and sale of Registrable Securities by the Holders from time to
time. Thereafter, Tetra Tech shall use commercially reasonable efforts to
cause such new or amended Registration Statement to be declared effective by
the SEC as promptly as practicable.
(b) No Holder shall have the right to register securities under
this Agreement unless such Holder provides and/or confirms in writing prior
to or after the filing of the Registration Statement such information
(including, without limitation, information as to the number of Registrable
Securities that such Holder has sold pursuant to any such Registration
Statement from time to time) as Tetra Tech reasonably requests in connection
with such Registration Statement.
(c) Notwithstanding the foregoing, for a period not to exceed 90
days, Tetra Tech shall not be obligated to prepare and file the Registration
Statement required hereunder if Tetra Tech, in its good faith judgment,
reasonably believes that the filing of such Registration Statement would
require the disclosure of material non-public information regarding Tetra
Tech and, accordingly, that the filing thereof, at the time requested, or the
offering of Tetra Tech Common Stock pursuant thereto, would materially and
adversely affect (i) a pending or scheduled public offering or private
placement of securities of Tetra Tech, (ii) an acquisition, merger,
consolidation or similar transaction by or of Tetra Tech, (iii) preexisting
and continuing negotiations, discussions or pending proposals with respect to
any of the foregoing transactions, or (iv) the financial condition of Tetra
Tech in view of the disclosure of any pending or threatened litigation,
claim, assessment or governmental investigation which might be required
thereby.
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In the event that Tetra Tech, in good faith, reasonably believes
that such conditions are continuing after such 90-day period, it may, with
the consent of the Holders of a majority of the Registrable Securities
subject (or to be subject) to the Registration Statement, which consent shall
not be unreasonably withheld, extend such 90-day period for an additional 30
days. Any further delay shall require the consent of the Holders of all such
shares which may be withheld in their sole discretion.
3. REGISTRATION PROCEDURES. In connection with Tetra Tech's
registration obligations pursuant to SECTION 2 hereof, Tetra Tech will use
commercially reasonable efforts to effect such registration to permit the
sale of the Registrable Securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto Tetra
Tech will as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such Registration Statement to become effective; PROVIDED
that, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, Tetra Tech will furnish to the Holders of
the Registrable Securities covered by such Registration Statement and their
counsel, copies of all such documents proposed to be filed at least ten days
prior thereto, and Tetra Tech will not file any such Registration Statement
or amendment thereto or any Prospectus or any supplement thereto to which any
such Holder shall reasonably object within such ten day period; PROVIDED,
FURTHER, that Tetra Tech will not name or otherwise provide any information
with respect to any Holder in any Registration Statement or Prospectus
without the express written consent of such Holder, unless required to do so
by the Securities Act and the rules and regulations thereunder. The parties
will use their best efforts to resolve any objections under this SUBPARAGRAPH
(a);
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus
as may be necessary to comply with the provisions of the Securities Act and
the rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) notify the selling Holders (i) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by Tetra Tech of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the
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initiation or threatening of any proceeding for such purpose and (v) of the
happening of any event which makes any statement made in the Registration
Statement, the Prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference
in order to make the statements therein not misleading in light of the
circumstances then existing;
(d) make every commercially reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(e) deliver to each selling Holder, without charge, such
reasonable number of conformed copies of the Registration Statement (and any
post-effective amendment thereto) and such number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto (and any documents incorporated by reference therein) as such Holder
may reasonably request. Tetra Tech consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders in
connection with the offer and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(f) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the selling
Holders in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such selling Holder reasonably requests,
and use commercially reasonable efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such Registration Statement is required to be
kept effective pursuant to the terms of this Agreement; and do any and all
other acts or things necessary or advisable to enable the disposition in all
such jurisdictions reasonably requested by the Holders of the Registrable
Securities covered by such Registration Statement, PROVIDED that under no
circumstances shall Tetra Tech be required in connection therewith or as a
condition thereof to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(g) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to be sold, free of any and all restrictive legends, such certificates to be
in such denominations and registered in such names as the Holders may request;
(h) upon the occurrence of any event contemplated by SECTION
3(c)(v) above, promptly prepare following the completion of all regulatory
requirements a supplement or post-effective amendment to the Registration
Statement or the 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, the Prospectus will not contain an
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untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(i) make generally available to the holders of Tetra Tech's
outstanding securities earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than 60 days after the end of
any 12 month period (or 90 days, if such period is a fiscal year) beginning
with the first month of Tetra Tech's first fiscal quarter commencing after
the effective date of the Registration Statement, which statements shall
cover said 12 month period;
(j) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
Statement from and after a date not later than the effective date of such
Registration Statement;
(k) use its best efforts to cause all Registrable Securities
covered by each Registration Statement to be listed, subject to notice of
issuance, prior to the date of the first sale of such Registrable Securities
pursuant to such Registration Statement, on each securities exchange on which
the Tetra Tech Common Stock is then listed, and admitted to trading on the
Nasdaq Stock Market, if the Tetra Tech Common Stock is then admitted to
trading on the Nasdaq Stock Market; and
(l) enter into such agreements and take such other actions as a
majority of the Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
Each Holder agrees that, upon receipt of any notice from Tetra Tech of
the happening of any event of the kind described in SECTION 3(c)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
under the Prospectus related to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by SECTION 3(h) hereof, or until it is advised in writing by
Tetra Tech that the use of the Prospectus may be resumed.
It shall be a condition precedent to the obligations of Tetra Tech to
take any action pursuant to this SECTION 3 with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to Tetra Tech
such information regarding itself and the Registrable Securities held by it
as shall be required by the Securities Act to effect the registration of such
Holder's Registrable Securities.
4. REGISTRATION EXPENSES. All expenses incident to any registration
to be effected hereunder and incident to Tetra Tech's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, National
Association of Securities Dealers, Inc., stock exchange and qualification
fees, fees and
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disbursements of Tetra Tech's counsel and of independent certified public
accountants of Tetra Tech (including the expenses of any special audit
required by or incident to such performance), the fees and disbursements of
one counsel and one accountant representing the Holders in such offering,
expenses of the underwriters that are customarily requested in similar
circumstances by such underwriters (excluding discounts, commissions or fees
of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Registrable
Securities, which will be borne by the Holders), all such expenses being
herein called "Registration Expenses," will be borne by Tetra Tech. Tetra
Tech will also pay its internal expenses, the expense of any annual audit and
the fees and expenses of any person retained by Tetra Tech.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY TETRA TECH. Tetra Tech agrees to indemnify
and hold harmless each Holder of Registrable Securities, its officers,
directors, partners and employees and each person who controls such Holder
(within the meaning of Section 15 of the Securities Act) from and against any
and all losses, claims, damages and liabilities (including any investigation,
legal or other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) (collectively, "Damages") to which such Holder may become subject
under the Securities Act, the Exchange Act or other federal or state
securities law or regulation, at common law or otherwise, insofar as such
Damages arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any amendment or supplement 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, in
light of the circumstances under which they were made, not misleading and
(iii) any violation or alleged violation by Tetra Tech of the Securities Act,
the Exchange Act or any state securities or blue sky laws in connection with
the Registration Statement, Prospectus or preliminary prospectus or any
amendment or supplement thereto, PROVIDED that Tetra Tech will not be liable
to any Holder to the extent that such Damages arise from or are based upon
any untrue statement or omission (x) based upon written information furnished
to Tetra Tech by such Holder expressly for the inclusion in such Registration
Statement, (y) made in any preliminary prospectus if such Holder failed to
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the party asserting the claim
underlying such Damages and such Prospectus would have corrected such untrue
statement or omission and (z) made in any Prospectus if such untrue statement
or omission was corrected in an amendment or supplement to such Prospectus
and such Holder failed to deliver such amendment or supplement prior to or
concurrently with the sale of Registrable Securities to the party asserting
the claim underlying such Damages.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
Holder of Registrable Securities whose Registrable Securities are sold under
a Prospectus which is a part of
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a Registration Statement agrees to indemnify and hold harmless Tetra Tech,
its directors and each officer who signed such Registration Statement and
each person who controls Tetra Tech (within the meaning of Section 15 of the
Securities Act), and each other Holder of Registrable Securities whose
Registrable Securities are sold under the Prospectus which is a part of such
Registration Statement (and such Holder's officers, directors and employees
and each person who controls such Holder within the meaning of Section 15 of
the Securities Act), under the same circumstances as the foregoing indemnity
from Tetra Tech to each Holder of Registrable Securities to the extent that
such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement of a material fact or omission of a material
fact that was made in the Prospectus, the Registration Statement, or any
amendment or supplement thereto, in reliance upon and in conformity with
information relating to such Holder furnished in writing to Tetra Tech by
such Holder expressly for use therein, PROVIDED that in no event shall the
aggregate liability of any selling Holder of Registrable Securities exceed
the amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Tetra
Tech and the selling Holders shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent
as customarily furnished by such persons in similar circumstances.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled
to indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER,
that any person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but
the fees and expenses of such counsel shall be at the expense of such person
and not of the indemnifying party unless (A) the indemnifying party has
agreed to pay such fees or expenses, (B) the indemnifying party shall have
failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (C) in the reasonable judgment of such person
and the indemnifying party, based upon advice of their respective counsel, a
conflict of interest may exist between such person and the indemnifying party
with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such claim on behalf of
such person). If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably
withheld). No indemnified party will be required to consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by all claimants or plaintiffs to such
indemnified party of a release from all liability in respect to such claim or
litigation. Any indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim. As used in this SECTION 5(c),
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the terms "indemnifying party", "indemnified party" and other terms of
similar import are intended to include only Tetra Tech (and its officers,
directors and control persons as set forth above) on the one hand, and the
Holders (and their officers, directors, partners, employees, attorneys and
control persons as set forth above) on the other hand, as applicable.
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties acknowledge and agree that it would not be just and equitable if
contribution pursuant to this SECTION 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in this SECTION 5(d).
Notwithstanding the foregoing, no Holder shall be required to contribute any
amount in excess of the amount such Holder would have been required to pay to
an indemnified party if the indemnity under SECTION 5(b) hereof was
available. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligation of any person to contribute pursuant to
this SECTION 5(d) shall be several and not joint.
(e) TIMING OF PAYMENTS. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of
this SECTION 5 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) SURVIVAL. The indemnity and contribution agreements contained
in this SECTION 5 shall remain in full force and effect, regardless of any
investigation made by or on behalf of Tetra Tech, a participating Holder, its
officers, directors, partners, attorneys, agents or any person, if any, who
controls Tetra Tech or such Holder as aforesaid, and shall survive the
transfer of such Registrable Securities by such Holder.
6. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of
this Agreement:
(a) Tetra Tech shall, with respect to a Registration Statement filed
pursuant to SECTION 2, give the Holders of such Registrable Securities so
registered, their underwriters, if any,
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and their respective counsel and accountants the opportunity to participate
in the preparation of such Registration Statement (other than reports and
proxy statements incorporated therein by reference and properly filed with
the SEC) and each Prospectus included therein or filed with the SEC, and each
amendment thereof or supplement thereto; and
(b) Tetra Tech shall give the Holders of such Registrable
Securities so registered, their underwriters, if any, and their respective
counsel and accountants such reasonable access to its books and records and
such opportunities to discuss the business of Tetra Tech with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders or such
underwriters, to conduct a reasonable investigation within the meaning of
Section 11(b)(3) of the Securities Act.
7. REPRESENTATIONS. Tetra Tech represents and warrants to, and agrees
with, the Holders that:
(a) The Registration Statement and the Prospectus, when it becomes
effective or is filed with the SEC, will conform in all material respects to the
requirements of the Securities Act and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary to make the statements not misleading in light of the circumstances
then existing.
(b) At all times subsequent to the effective date of the
Registration Statement, when a Prospectus would be required to be delivered
under the Securities Act, the Registration Statement and the Prospectus, as
then amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated or
necessary to make the statements not misleading in light of the circumstances
then existing.
(c) Any documents incorporated by reference in the Prospectus,
when they become or became effective or are or were filed with the SEC, as
the case may be, will conform or be conformed in all material aspects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents will contain or contained an untrue statement of a
material fact or will admit or omitted to state a material fact required to
be stated or necessary to make the statements therein not misleading in light
of the circumstances then existing.
(d) The above representations and warranties shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to Tetra Tech by a Holder expressly for use
in the Registration Statement or the Prospectus.
8. RULE 144. Tetra Tech covenants that it will use commercially
reasonable efforts to file, on a timely basis, the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such
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further action as any Holder may reasonably request (including, without
limitation, compliance with the current public information requirements of
Rule 144(c) and Rule 144A), all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the conditions provided by Rule
144, Rule 144A or any similar rule or regulation hereafter adopted by the
SEC. Upon the request of any Holder, Tetra Tech will promptly deliver to such
Holder a written statement verifying that it has complied with such
information and requirements.
9. SPECIFIC PERFORMANCE. Each Holder, in addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of damages, will be entitled to specific performance of its rights under this
Agreement. Tetra Tech agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
10. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by facsimile or delivered personally
by hand or nationally recognized courier addressed (a) if to a Holder, as
indicated on the list of Holders attached hereto as SCHEDULE A, or at such
other address as such Holder or permitted assignee shall have furnished to
Tetra Tech in writing, with a copy to Xxxxxxx, Xxxxx & Xxxxxx, 0000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxxxxxxx X.
Xxxxx, Esq.; Facsimile (000) 000-0000, or (b) if to Tetra Tech, at such
address or facsimile number as Tetra Tech shall have furnished to each Holder
in writing. All such notices and other written communications shall be
effective on the date of mailing, facsimile transfer or delivery.
11. SUCCESSORS AND ASSIGNS: ASSIGNMENT OF RIGHTS. The rights and
benefits of a Holder hereunder may not be assigned to a transferee or
assignee without the consent of Tetra Tech; PROVIDED, HOWEVER, that, no later
than the 10th day prior to the filing of the Registration Statement under
SECTION 2 hereof, the rights and benefits of a Holder hereunder may be
transferred in connection with a transfer or assignment of any Registrable
Securities held by such Holder (i) by gift to immediate family members of
such Holder, or trusts or other entities for the sole benefit thereof, or
(ii) by gift to any entity in which such Holder, his or her immediate family
members, or trusts or other entities for the sole benefit thereof
beneficially own all of the voting securities; PROVIDED, HOWEVER, that in
each case, the transferee executes an instrument pursuant to which the
transferee agrees to be bound by the terms and conditions hereof as a Holder,
and such other documents as Tetra Tech or its counsel may reasonably require,
after which, such transferee shall be deemed a "Holder" hereunder. Any
transfer of Registrable Securities, and rights hereunder, shall be subject to
compliance with applicable securities laws and the restrictions contained in
the Investment Letter executed by each Holder pursuant to the Reorganization
Agreement.
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12. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
13. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement, the
Reorganization Agreement and the other agreements contemplated thereby
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof. Without limiting the
foregoing, the rights of the Holders to registration pursuant to the terms of
this Agreement shall be subject to the limitations on resale contained in the
Investment Letter (as defined in the Reorganization Agreement). Neither this
Agreement nor any term hereof may be amended, waived, discharged or
terminated, except by a written instrument signed by Tetra Tech and the
holders of at least 51% of the Registrable Securities and any such amendment,
waiver, discharge or termination shall be binding upon all the parties
hereto, but in no event shall the obligation of any party hereto be
materially increased, except upon the written consent of such party.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together
shall constitute one instrument.
15. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California without giving effect
to principles of conflicts of laws thereof.
16. NO THIRD PARTY BENEFICIARIES. The covenants and agreements set
forth herein are for the sole and exclusive benefit of the parties hereto and
their respective successors and assigns and such covenants and agreements
shall not be construed as conferring, and are not intended to confer, any
rights or benefits upon any other persons.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TETRA TECH, INC.
By: /s/ Li-San Hwang
----------------------------------
Li-San Hwang
Chairman, Chief Executive Officer
and President
HOLDERS:
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxx
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SCHEDULE A
SCHEDULE OF HOLDERS
Number of Shares of Tetra Tech
Common Stock Issued Pursuant
Holder's Name/Address/Facsimile No. to the Reorganization Agreement
----------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx 88,275 shares
Utilities & C.C., Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxxxxx 49,655 shares
Utilities & C.C., Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
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