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EXHIBIT 4.19
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made this day
of April, 2000, between Genomic Solutions Inc., a Delaware corporation, 0000
Xxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000 (the "Company") and Xxxxxxx X.
Xxxxxxxx, 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Holder").
A. As of the date hereof, Holder is in possession of shares of the
Company's Common Stock.
B. The Company and the Holder are entering into this Agreement to set
forth certain registration rights with respect to the Common Shares.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the following
definitions:
(a) "Common Stock" means the Company's common stock, par value $.001,
until the time that the Third Amended and Restated Certificate of
Incorporation is effective, at which point the common stock becomes
callable, until the expiration of the Call Period, as that term is
defined in the Third Amended and Restated Certificate of Incorporation,
and from the time of expiration of the Call Period, means the Company's
common stock, par value $.001.
(b) "IPO" means a registration statement filed with the Securities and
Exchange Commission and declared effective relating to an initial
public offering of common stock firmly underwritten by a nationally
recognized underwriter who certifies to the Purchaser that such
underwriter believes that (i) the offering will result in no less than
$20,000,000 of gross proceeds to the Company and (ii) the securities
offered will qualify for listing on the New York Stock Exchange or the
National Market Tier of the Nasdaq Stock Market (an initial public
offering that in fact results in no less than $20,000,000 of gross
proceeds to the Company and the listing of the offered securities on
the New York Stock Exchange or the National Market Tier of the Nasdaq
Stock Market.
(c) "Person" means an individual, a partnership, a limited liability
company, a joint venture, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof, or any
other entity.
(d) "Registrable Securities" means any shares of Common Stock issued or
issuable with respect to the Common Shares by way of stock dividend,
stock split or in connection with a combination of stock,
recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities will cease to be
Registrable Securities on the earliest of the following dates: (i) the
date such securities have been sold to the public pursuant to an
offering registered under the Securities Act,
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or (ii) the date such securities are eligible to be sold pursuant to
Rule 144 (or any similar provisions then in force) under the Securities
Act.
(e) "Registration Period" means the period commencing immediately after
the consummation of the IPO and ending on the fifth anniversary of the
consummation of the IPO.
(f) "Registration Statement" means any registration statement of the
Company that covers any Registrable Securities pursuant to the
provisions of this Agreement.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
2. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any of its securities under the
Securities Act (other than pursuant to (i) an IPO; (ii) a registration
on Form S-4 or any successor form, or (iii) an offering of securities
in connection with an employee benefit plan, a stock option plan, a
stock dividend plan, a stock ownership plan or a dividend reinvestment
plan) at any time during the Registration Period and the registration
form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company shall give prompt
written notice to the Holder of its intention to effect such a
registration (each a "Piggyback Notice") and, subject to Sections 2(b)
and 2(c) below, the Company shall include in such registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within fifteen (15) days after
the date of sending of the Company's notice (the "Included Registrable
Securities"); provided, however, that, at the Company's option, the
Company may file a separate Registration Statement for, and with
respect to, Included Registrable Securities in satisfaction of the
Company's obligation hereunder.
(b) The registration rights granted to the Holder pursuant to Section 2
(a) above are subordinate and subject to the rights of the holders of
the Company's Series M Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series P
Preferred Stock (collectively, the "Preferred Stock"), as more
particularly described in the Shareholders Agreement, as amended,
between the Company and certain of its stockholders, dated as of
December 24, 1997, and amended and restated as of January 25, 2000, and
the holders of registration rights under the April and October Business
Loan Agreements dated April 23, 1999 and October 28, 1999 respectively
(the "Warrantholders"). The Company shall be required to include the
Holder's shares in any registration only to the extent that such
inclusion will not reduce the amount of securities to be registered and
sold by the holders of Preferred Stock and the Warrantholders. If the
managing or principal underwriters named in the registration statement
advise the Company that, in the good faith judgment of such managing or
principal underwriters, the number of shares of Common Stock which the
Holder, the Company and all other shareholders have requested to be
included in such registration statement exceed the number of shares it
is advisable to offer and to sell at such time,
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then the Company shall include in such registration, to the extent of
the number of shares of Common Stock which the Company is so advised
can be sold in such offering, the shares of Common Stock that the
Company proposes to issue and sell for its own account, the shares of
Common Stock requested to be registered and sold by the holders of
Preferred Stock and the Warrantholders and the number of shares of
Common Stock to be registered and sold by the Holder and all other
shareholders requesting registration.
(c) If a Piggyback Registration is an underwritten secondary
registration initiated by and on behalf of holders of the Company's
securities other than the Holder of Registrable Securities pursuant to
the exercise of demand registration rights, and the managing
underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially
requesting such registration, the Company shall include in such
registration (i) first, all of the securities requested to be included
therein by the holder initially requesting such registration, and (ii)
second, the Registrable Securities requested to be included in such
registration and any other securities requested to be included in such
registration, pro rata among the holders of Registrable Securities
requesting such registration and the holders of such other securities
on the basis of the number of shares owned by each such holder.
(d) In the case of an underwritten Piggyback Registration, the Company
shall have the sole and exclusive right to select the investment
banker(s) and manager(s) to administer the offering.
3. REGISTRATION PROCEDURES. Whenever there has been a request to have any
Registrable Securities registered pursuant to this Agreement, the Company shall
use its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect
to such Registrable Securities and use its reasonable best efforts to
cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective for the period required by the intended method of
disposition, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration Statement;
(c) furnish the Holder such number of copies of such Registration
Statement, each amendment and supplement thereto, the prospectus
included in such Registration Statement (including each preliminary
prospectus) and such other documents as the
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Holder may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Holder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as the Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the Holder to consummate the disposition in such jurisdictions
of the Registrable Securities owned by the Holder (provided that the
Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction, or (iv) qualify such Registrable Securities in a given
jurisdiction where expressions of investment interest are not
sufficient in such jurisdiction to reasonably justify the expense of
qualification in the jurisdiction or where such qualification would
require the Company to register as a broker or dealer in such
jurisdiction).
(e) notify the Holder of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such Registration Statement contains an untrue
statement of a material fact or omits any material fact necessary to
make the statements therein not misleading, and, at the request of the
Holder, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and to be qualified
for trading on each system on which similar securities issued by the
Company are from time to time qualified;
(g) in the event of an underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering; and
(h) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending
or preventing the use of any related prospectus or suspending the
qualification of any Common Stock included in such Registration
Statement for sale in any jurisdiction, the Company shall use its
reasonable best efforts to promptly obtain the withdrawal of such
order.
The Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) or (h) hereof, the
Holder shall forthwith discontinue disposition of shares of Common Stock
pursuant to a Piggyback Registration until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 3(e) or
until the withdrawal of such order under Section 3(h).
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4. REGISTRATION EXPENSES. The Company shall bear all costs and expenses incident
to the Company' 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, and fees and disbursements of counsel for the Company, all
independent certified public accountants of the Company and fees and expenses of
other Persons retained by the Company in connection with the distribution of the
Registrable Securities. The Holder shall pay all discounts and commissions
attributable to the Registrable Securities, all transfer taxes relating to the
sale or disposition of the Registrable Securities and all fees and expenses of
any attorney or accountant retained by the Holder in connection with the
registration of Registrable Securities.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
the Holder against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material
fact contained in any Registration Statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any
information furnished to the Company in writing by the Holder expressly
for use therein or by the Holder's failure to deliver a copy of the
Registration Statement or prospectus or any amendments or supplements
thereto after the Company has furnished the Holder with a sufficient
number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers
and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters to the same extent as provided above
with respect to the indemnification of the Holder.
(b) In connection with any Registration Statement in which the Holder
is participating, the Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in
connection with any such Registration Statement or prospectus and, to
the extent permitted by law, shall indemnify the Company, its directors
and officers and each Person who controls (within the meaning of the
Securities Act) the Company against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information so furnished in
writing by the Holder; provided, however, that the obligation to
indemnify under this Section 5(b) shall be several, not joint and
several, among such holders of Registrable Securities.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the defense of
such
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claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be subject to
any liability for any settlement made by the indemnified party without
its consent (but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall 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, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other such indemnified parties
with respect to such claim.
(d) If for any reason the indemnification provided for in the preceding
clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold such party harmless as contemplated by the
preceding clauses (a) and (b), then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of the loss, claim, damage, liability or expense in the
proportion as is appropriate to reflect (i) the relative fault of the
indemnified party and the indemnifying party, and (ii) any other
relevant equitable considerations.
(e) The indemnities provided in this Section 5 shall survive the
Holder's transfer of any Registrable Securities.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
7. DISCLOSURE. With a view to making available to the Holder the benefits of
Rule 144 promulgated under the Securities Act, the Company agrees, for a period
of two years following the date of this Agreement, to:
(a) make and keep public information available within the meaning of
Rule 144(c) of the Securities Act at all times after ninety (90) days
after the closing of the IPO;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(c) furnish to the Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule
144 (at all times after ninety (90) days after the closing of the IPO)
and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports,
documents and other information in the possession of or reasonably
obtainable by the Company as the Holder may reasonably request in
availing themselves of Rule 144.
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8. MARKET STAND-OFF AGREEMENT. The Holder agrees that, for a period of 180 days
after the date of the final prospectus relating to an IPO, it shall not, either
directly or indirectly:
(a) (x) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock (including, without limitation, shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common
Stock which may be deemed to be beneficially owned by the Holder in
accordance with the rules and regulations of the Securities and
Exchange Commission) or (y) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated
with the ownership of any Common Stock (regardless of whether any of
the transactions described in clause (x) or (y) is to be settled by the
delivery of Common Stock, or such other securities, in cash or
otherwise), without the prior written consent of the Company and the
managing underwriter(s) of the IPO; and
(b) make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock,
without the prior written consent of the Company and the managing
underwriter(s) of the IPO.
9. MISCELLANEOUS.
(a) The Company shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the
rights granted to the Holder in this Agreement.
(b) Any Person having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party
may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
(c) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior written consent
of the Company and the Holder.
(d) All covenants and agreements in this Agreement by or on behalf of
any of the parties shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the
benefit of the Holder are also for the benefit of, and enforceable by,
any subsequent holder of Registrable Securities.
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(e) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement. Photographic or facsimile
reproductions of this Agreement may be made and relied upon to the same
extent as the originals.
(g) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) This Agreement shall be construed in accordance with the laws of
the State of Delaware.
(i) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable express
courier service (charges prepaid) or mailed to the recipient by
certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent
to the Holder at the address indicated on the records of the Company
and to the Company at the address indicated below:
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the
sending party.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth above.
COMPANY:
Genomic Solutions Inc., a Delaware Corporation
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, Chief Financial Officer
HOLDER:
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
