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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made this 23rd day
of April, 1999, by and between Genomic Solutions, Inc., a Delaware corporation,
0000 Xxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000 ("Company") and White
Pines Limited Partnership I, a Michigan limited partnership, 0000 Xxxxxxxx Xxxx,
Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as "WPLP") Pacific
Capital, L.P., a Delaware limited partnership, 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxx
Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Pacific"), Chase Venture
Capital Associates, L.P., a California limited partnership, 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Chase"),
American Healthcare Fund II, a Delaware limited partnership, 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"American"), Ian R. N. Bund Xxxxx Xxxxxx Prototype PS Plan Account
#000-00000-00000, X.X. Xxx 0000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "Bund"), Xxxxx Consulting Associates, Inc., an Ohio corporation,
0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 (hereinafter referred to as "Xxxxx"),
Volunteer Healthcare Associates, L.L.C., a Tennessee limited liability company,
0 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 (hereinafter referred to
as "Volunteer"), McDonald Investments Inc. Custodian FBO S. Xxxxxxxx XxXxxxxx
III XXX Rollover Account #00000000, 0000 Xxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx
Xxxxx, Xxxx 00000 (hereinafter referred to as "XxXxxxxx"), J. Xxxxxxx Xxxxxxxxx,
000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter
referred to as "Xxxxxxxxx-CA") , Xxxxxx X. Xxxxxxx, 000 Xxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Xxxxxxx"), Xxxx X.
Xxxxxxxxx, 0000 Xxxxxxxx Xxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Xxxxxxxxx-FL"), Grove Investment Partners, an Illinois
partnership, 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to
as "Grove") Xxxxxx X. Xxxxxx Living Trust u/a/d September 9, 1997, 000 Xxxxx Xxx
Xxxxx, #0000, Xxx Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Xxxxxx"),
Xxxx X. Xxxxxx, 00000 Xxx Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "Xxxxxx"), McDonald Investments Inc. Custodian FBO Xxxxxx X.
Xxxxx XXX Rollover Account #00000000, 0000 Xxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx Xxxxx, Xxxx 00000 (hereinafter referred to as "Xxxxx"), National
City Bank of MI/IL, Custodian FBO Xxxxxxx X. Xxxxxx XXX Rollover Account dated
June 12, 1991 Account #MI-1491-00-4, 101 National City Bank, 000 X. Xxxx Xxxxxx,
Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Xxxxxx"), Xxxxxxx and
Associates Profit Sharing Plan u/a/d January 1, 1991, 000 Xxxx Xxxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Xxxxxxx") and Xxxxxxx X.
Xxxxxxxx, 00000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "Xxxxxxxx") (WPLP, Pacific, Chase, American, Bund, Xxxxx,
Volunteer, XxXxxxxx, Xxxxxxxxx-CA, Xxxxxxx, Xxxxxxxxx-FL, Grove, Kalish, Marler,
Boyle, Amster, Xxxxxxx and Xxxxxxxx hereinafter referred to collectively as
"Purchasers").
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1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
(b) "Equity Security" shall have the meaning ascribed to such term in
the rules and regulations of the Commission issued under the Securities Act.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
(d) "Initial Public Offering" means the effective date of a Registration
Statement covering the Company's first underwritten public offering of Common
Stock, resulting in gross proceeds to the Company of at least $5,000,000.
(e) "Loan Agreement" shall mean the Business Loan Agreement of even date
herewith between Company and Purchasers.
(f) "Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other similar form, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of
another corporation).
(g) "Registration Expenses" means the expenses described in Section 5.
(h) "Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon exercise of the Warrants, (ii) any shares of Common Stock, or
shares of Common Stock issued or issuable upon exercise or conversion of any
equity security, acquired by the Purchasers pursuant to any preemptive right it
has under the Shareholders Agreement, and (iii) any other shares of Common Stock
issued in respect of the shares of Common Stock described in subparagraphs (i)
and (ii) above (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events), provided, however, that shares of Common
Stock which are Registrable Shares shall cease to be Registrable Shares upon any
sale pursuant to a Registration Statement, Section 4(l) of the Securities Act or
Rule 144 under the Securities Act. Wherever reference is made in this Agreement
to a request or consent of holders of a certain percentage of Registrable
Shares, the determination of such percentage shall include shares of Common
Stock issuable upon exercise of the Warrants even if such exercise has not yet
occurred.
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(i) "Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
(j) "Shareholders Agreement" means the shareholder agreement dated
December 24, 1997 among Parent and various shareholders of Parent, as amended
May 27, 1998, and as further amended as of the date hereof.
(k) "Shareholders" means the Purchasers and any persons or entities to
whom the rights granted under this Agreement are transferred by the Purchasers,
and their successors or assigns.
(1) "Warrants" means the warrants initially issued to Purchasers on the
date hereof pursuant to the terms and provisions of the Loan Agreement and any
and all additional Warrants hereafter issued pursuant to the terms and
provisions of the Loan Agreement or such warrants.
2. Required Registrations.
(a) At any time after the end of the nine-month period following the
Initial Public Offering pursuant to a Registration Statement, a Shareholder or
Shareholders holding in the aggregate at least thirty percent of the Registrable
Shares may request, in writing, that the Company effect the registration on Form
S-1, or if available, Form S-3 (or any successor form) of Registrable Shares
owned by such Shareholder or Shareholders having an aggregate offering price of
at least $1,000,000 (based on the then current market price or fair value). If
the holders initiating the registration intend to distribute the Registrable
Shares by means of an underwriting, they shall so advise the Company in their
request of such intention and of their selection of an underwriter (which
selection shall be subject to the consent of the Company, which consent shall
not be unreasonably withheld). In the event such registration is underwritten,
the right of other Shareholders to participate shall be conditioned on such
Shareholders' participation in such underwriting. Upon receipt of any such
request, the Company shall promptly give written notice of such proposed
registration to all Shareholders. Such Shareholders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of their
Registrable Shares as they may request in such notice of election. If in the
opinion of the managing underwriter the registration of all the Registrable
Shares which the Shareholders have requested to be included would materially and
adversely affect such public offering, then only that number of Registrable
Shares which the managing underwriter believes may be sold without causing such
material adverse effect shall be included in the underwriting. The Shareholders
of Registrable Shares who
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have requested registration shall participate in the underwriting pro rata based
upon the number of shares of Common Stock of the Company that such Shareholders
have requested to be so included. The Company shall, as expeditiously as
possible, use its best efforts to effect the registration of all Registrable
Shares which the Company has been requested to so register. If the managing
underwriter or underwriters have not limited the number of shares to be
underwritten, the Company may include securities for its own account or the
account of others in such registration if the managing underwriter or
underwriters so agree and if the number of Registrable Shares which would
otherwise have been included in such registration and underwriting will not
thereby be decreased.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Shareholder or Shareholders holding in the aggregate at least
thirty percent of the Registrable Shares may request the Company, in writing, to
effect the registration on Form S-3 (or such successor form), of Registrable
Shares having an aggregate offering price of at least $500,000 (based on the
current public market price). Upon receipt of any such request, the Company
shall promptly give written notice of such proposed registration to all
Shareholders. Such Shareholders shall have the right, by giving written notice
to the Company within 30 days after the Company provides its notice, to elect to
have included in such registration such of their Registrable Shares as such
Shareholders may request in such notice of election. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration of all Registrable Shares which the Company has been requested to
register.
(c) The Company shall not be required to effect more than one
registration pursuant to Section 2(a) above, or more than one registration
pursuant to Section 2(b) above.
(d) If at the time of any request to register Registrable Shares
pursuant to this Agreement, the Company is engaged or has bona fide plans to
engage, within 30 days of the time of the request, in a registered public
offering as to which the Shareholders may include Registrable Shares pursuant to
Section 3 or is engaged in any other activity which, in the good faith
determination of the Board, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a period not in excess of
three months from the effective date of such offering or the date of
commencement of such other material activity, as the case may be.
3. Incidental Registration.
(a) Whenever the Company proposes at any time to file a Registration
Statement that contemplates the sale of Common
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Stock or other Equity Security and is on a form which would allow registration
of the Registrable Shares, it will, prior to such filing, give written notice to
all Shareholders of its intention to do so and, upon the written request of the
Shareholders given within 10 days after the Company provides such notice, the
Company shall use its best efforts to cause all Registrable Shares which the
Company has been requested by such Shareholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of the Shareholders; provided, however, that the Company shall have
the right to postpone or withdraw any registration proposed pursuant to this
Section 3(a) without obligation to any Shareholder.
(b) In connection with any offering under Section 3(a) involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the holders have requested to be included and
securities requested to be included by the parties to the Shareholders Agreement
would materially and adversely affect such public offering, then the Company
shall be required to include in the underwriting only that number of Registrable
Shares and securities owned by the parties to the Shareholders Agreement which
the managing underwriter believes may be sold without causing such material
adverse effect. If the number of Registrable Shares and other securities to be
included in the underwriting in accordance with the foregoing is less than the
total number of shares which the holders of Registrable Shares and other
securities have requested to be included, then the holders of Registrable Shares
who have requested registration shall participate in the underwriting pro rata
based upon the number of shares of Common Stock of the Company that the holders
of the Registrable Shares and the parties to the Shareholders Agreement have
requested to be so included, provided however that the holders of Registrable
Shares shall be entitled to include shares in an underwriting in connection with
a registration effected by the Company pursuant to Section 2.3 or 2.10 of the
Shareholders Agreement only to such extent as the inclusion of such Registrable
Shares will not reduce the amount of securities which are included in such
underwriting owned by the parties to the Shareholders Agreement entitled to
exercise rights under Section 2.3 or 2.10.
4. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, the Company shall:
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(a) File with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) As expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than 90 days from the
effective date;
(c) As expeditiously as possible furnish to each selling Shareholder
such reasonable number of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Shareholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Shareholder;
(d) As expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or blue sky laws of such states as the selling Shareholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Shareholders to consummate the
public sale or other disposition within such states of the Registrable Shares
owned by the selling Shareholders; provided, however, that the Company shall not
be required in connection with this paragraph (d) to qualify as a foreign
corporation in any jurisdiction, execute a general consent to service of process
in any jurisdiction, or subject itself to taxation in any jurisdiction; and
(e) Use its best efforts to cause the Registrable Shares to be listed on
the principal securities exchange on which similar securities of the Company are
then listed, if any, if the listing of such shares is then permitted under the
rules of such exchange.
(f) If the Company has delivered preliminary or final prospectuses to
the selling Shareholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Shareholders and, if requested, the selling Shareholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Shareholders with revised prospectuses and, following receipt of the revised
prospectuses and compliance with any related requirements of the Securities Act
and any applicable state securities or blue sky laws, the selling Shareholders
shall be free to resume making offers of the Registrable Shares.
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5. Allocation of Expenses. The Company will pay all Registration Expenses
of all registrations under this Agreement; provided, however, that if a
registration is withdrawn at the request of the Shareholders requesting such
registration (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Shareholders after
the date on which such registration was requested) and if the requesting
Shareholders elect not to have such registration counted as a registration
requested under Section 2(a), the requesting Shareholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section 5, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees of accountants for the Company, fees and disbursements of counsel
for the Company and the fees and expenses (not in excess $10,000) of one counsel
selected by the selling Shareholders to represent the selling Shareholders,
state securities or blue sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions or any other brokerage or
underwriting fees and expenses and the fees and expenses of the selling
Shareholders' own counsel (other than the one counsel selected to represent all
selling Shareholders).
6. Indemnification.
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or blue sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and, subject to Section 6(c) below, the Company will
reimburse such seller, underwriter and each such controlling person for any
legal or any other expenses reasonably incurred by such seller, underwriter or
controlling person in connection with
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investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon (i) any untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof or, (ii) the failure of such
seller to deliver copies of the prospectus in the manner required by the
Securities Act.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally (and not jointly or jointly and severally), will indemnify and
hold harmless the Company, each of its directors and officers and each
underwriter, if any, and each person, if any, who controls the Company or any
such underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities or blue
sky laws or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") within a reasonable period of time
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided,
however, that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not be withheld unreasonably). The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the
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Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party in the defense of any such
claim or litigation shall, except with the prior written consent of each
Indemnified Party, 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 such Indemnified Party of a release from all liability
in respect of such claim or litigation, and no Indemnified Party shall consent
to entry of any judgment or settle such claim or litigation without the prior
written consent of the Indemnifying Party.
7. Indemnification with Respect to Underwritten Offering. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2(a), the Company agrees to enter into
an underwriting agreement containing customary representations and warranties
with respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
8. Information by Holder. Each holder of Registrable Shares included in any
registration shall furnish to the Company such information regarding such holder
and the distribution proposed by such holder as the Company may request in
writing if it is required in connection with any registration, qualification or
compliance referred to in this Agreement.
9. "Lock-Up" Agreement. Each Shareholder, if requested by the Company and
an underwriter of Common Stock or other securities of the Company, shall agree
not to sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Shareholder for a specific period of time
(not to exceed 180 days) following the effective date of a Registration
Statement; provided, however, that:
(a) Such agreement shall only apply to the first such Registration
Statement covering Common Stock to be sold on the Shareholder's behalf to the
public in an underwritten offering;
(b) All stockholders of Company owning more than one percent of the
total number of shares of Common Stock outstanding (including shares of Common
Stock issuable pursuant to the terms of any Equity Security of Company in
determining both the number of shares of Common Stock owned by any stockholder
and the total number of shares of Common Stock outstanding) and all officers and
directors of the Company enter into similar agreements; and
(c) Such agreement shall not apply to any Registrable Shares (or other
Equity Security of the Company) held by such Shareholder if they are included in
the Registration Statement.
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Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop transfer instructions with
respect to the Registrable Shares or other securities subject to the foregoing
restriction until the end of the lock-up period.
10. Limitations on Other Registration Rights. The Company shall not,
without the prior written consent of Shareholders holding at least two-thirds of
all Registrable Shares, enter into any agreement (other than this Agreement)
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder to demand that his, her or its
securities be included in any registration filed under Section 2 to the extent
that the inclusion of such securities would reduce the amount of Registrable
Shares of the Shareholders included in such registration.
11. Rule 144 Requirements. After the earliest of (i) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) Use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) Furnish to any holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time after 90 days following the closing of the first sale
of securities by the Company pursuant to a Registration Statement), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
reports of the Company, and such other reports and documents of the Company as
such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
12. Notices. Any and all notices provided for in this Agreement shall be
given in writing by registered or certified mail, return receipt requested and
shall be deemed to have been given when mailed, and shall be addressed as
follows:
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As to Purchasers: As to Company:
White Pines Limited Partnership I Genomic Solutions, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx X 0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Pacific Capital, L.P.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, XX 00000
White Pines Management, L.L.C.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, XX 00000
Chase Venture Capital Associates, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
American Healthcare Fund II
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
J. Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Grove Investment Partners
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
and with a copy to:
Xx. Xxxxx X. Xxxxxxx
Xxxxxxx and Associates
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
13. Entire Agreement. This Agreement together with the Loan Agreement
contain the entire agreement and understanding between the parties with respect
to the subject matter hereof and supersedes all prior agreements, understandings
and representations. No addition or modification to this Agreement is valid
unless made in writing and signed by the parties hereto.
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14. Waiver of Jury Trial. To the fullest extent permitted by law, and as
separately bargained-for consideration to Purchasers, the Company hereby waives
any right to trial by jury in any action, suit, proceeding or counterclaim of
any kind arising out of or relating to this agreement or the Purchasers' conduct
in respect thereof.
15. Controlling Law; Jurisdiction. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of Michigan.
Company expressly submits to the jurisdiction and venue in the Federal or state
courts of the State of Michigan by process served by mail on Company at the
address set forth above.
16. Construction and Interpretation. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be more strictly construed against the
party that itself or through its agent prepared the same, it being agreed that
the Company, Purchasers and their respective agents have participated in the
preparation hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WHITE PINES LIMITED PARTNERSHIP I GENOMIC SOLUTIONS, INC.
by: White Pines G.P., L.L.C.,
its general partner
By: /s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------- --------------------------------------
Xxxxxxxxx X. Xxxxx, Chairman Xxxxxxx X. Xxxxxxxx, President
"Company"
PACIFIC CAPITAL, L.P.
By: Pacific Capital Corporation,
its general partner
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxxx X. Xxxxx, Vice-Chairman
IAN R. N. BUND XXXXX XXXXXX
PROTOTYPE PS PLAN ACCOUNT
#000-00000-00000
XXXXX CONSULTING ASSOCIATES, INC.
VOLUNTEER HEALTHCARE ASSOCIATES, L.L.C
MCDONALD INVESTMENTS INC. CUSTODIAN
FBO S. XXXXXXXX XXXXXXXX III XXX
ROLLOVER ACCOUNT #00000000
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XXXXXX X. XXXXXX LIVING TRUST U/A/D
SEPTEMBER 9, 1997
XXXX X. XXXXXX
XXXXXXXX INVESTMENTS INC. CUSTODIAN
FBO XXXXXX X. XXXXX XXX
ROLLOVER ACCOUNT #00000000
NATIONAL CITY BANK OF MI/IL CUSTODIAN
FBO XXXXXXX X. XXXXXX XXX
ROLLOVER ACCOUNT DATED JUNE 12, 1991
#MI-1491-00-4
XXXXXXX AND ASSOCIATES PROFIT SHARING
PLAN X/X/X XXXXXXX 0, 0000
XXXXXXX X. XXXXXXXX
By: White Pines Management, L.L.C.,
a Michigan limited liability
company, attorney-in-fact
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: /s/ Xxxxxx Xxxxxx
----------------------------
AMERICAN HEALTHCARE FUND II
By: /s/ Xxx Xxxxxxxx
----------------------------
/s/ J. Xxxxxxx Xxxxxxxxx
-------------------------------
J. XXXXXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
XXXX X. XXXXXXXXX
GROVE INVESTMENT PARTNERS
By: /s/ Xxxx Xxxx
----------------------------
"Purchasers"
13
14
AMENDMENT NO. 1 TO REGISTRATION RIGHTS
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (the "Amendment") is
made this 28th day of October 1999 by and between Genomic Solutions, Inc., a
Delaware corporation, 0000 Xxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000
("Company") and White Pines Limited Partnership I, Pacific Capital L.P., Chase
Venture Capital Associates, L.P., American Healthcare Fund II, Ian R. N. Bund
Xxxxx Xxxxxx Prototype PS Plan Account #000-00000-00000, Xxxxx Consulting
Associates, Inc., Volunteer Healthcare Associates, L.L.C., McDonald Investments
Inc. Custodian FBO S. Xxxxxxxx XxXxxxxx III XXX Rollover Account #00000000, J.
Xxxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxxx, Grove Investment
Partners, Xxxxxx X. Xxxxxx Living Trust u/a/d September 9, 1997, Xxxx X. Xxxxxx,
XxXxxxxx Investments Inc. Custodian FBO Xxxxxx X. Xxxxx XXX Rollover Account
#00000000, National City Bank of MI/IL, Custodian FBO Xxxxxxx X. Xxxxxx XXX
Rollover Account dated June 12, 1991 Account #MI-1491-00-4, Xxxxxxx and
Associates Profit Sharing Plan u/a/d January 1, 1991 and Xxxxxxx X. Xxxxxxxx
(hereinafter collectively referred to as the "April Lenders"), and White Pines
Limited Partnership I, Pacific Capital L.P., Chase Venture Capital Associates,
L.P., American Healthcare Fund II, Ian R. N. Bund, Xxxxx Consulting Associates,
Inc., Volunteer Healthcare Associates, L.L.C., J. Xxxxxxx Xxxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxxxx, Grove Investment Partners, Xxxxxx X. Xxxxxx Living
Trust u/a/d September 9, 1997, McDonald Investments Inc. Custodian FBO Xxxxxx X.
Xxxxx XXX Rollover Account #00000000, Xxxxxxx and Associates Profit Sharing Plan
u/a/d January 1, 1991, Xxxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxx and Xxxxxx X.
Xxxxxxxxxx (hereinafter collectively referred to as the "October Lenders").
RECITALS
1. Company and the April Lenders entered into a certain Registration Rights
Agreement dated April 23, 1999 (hereinafter referred to as the "Agreement").
2. Company and the October Lenders are entering into the October Loan
Agreement (as hereinafter defined) pursuant to which Warrants to purchase shares
of common stock of Company are being issued to the October Lenders.
3. The October Lenders require that the shares of common stock issuable
upon exercise of the Warrants issued pursuant to the October Loan Agreement
constitute "Registrable Shares" for purposes of the Agreement, and Company and
the April Lenders are willing to amend the Agreement for such purposes.
NOW THEREFORE, in consideration of the foregoing and the original execution
of the Agreement, the parties hereto agree that the Agreement is hereby amended
as follows:
1
15
1. Section 1(e) is hereby amended to read its entirety as follows:
(e) "April Loan Agreement" shall mean the Business Loan Agreement
dated April 23, 1999 between Company, Genomic Solutions, Ltd., Genomic
Solutions, K.K. and the April Lenders.
2. Section 1(j) is hereby amended to read in its entirety as follows:
(j) "Shareholders Agreement" means the shareholder agreement dated
December 24, 1997 among Company and various shareholders of Company,
as amended May 27, 1998, and as further amended on April 23, 1999 and
on the date hereof whereby Purchasers were added as parties thereto as
to certain provisions.
3. Section 1(l) is hereby amended to read in its entirety as follows:
(1) "Warrants" means (i) the warrants initially issued to the April
Lenders on April 23, 1999 pursuant to the terms and provisions of the
April Loan Agreement, (ii) the warrants initially issued to the
October Lenders on October 28, 1999 pursuant to the terms and
provisions of the October Loan Agreement, and (iii) any and all
additional warrants issued after April 23, 1999 pursuant to the terms
and provisions of the April Loan Agreement, the October Loan Agreement
or such warrants.
4. The following is added as an additional Section 1(m):
(m) "October Loan Agreement" shall mean the Business Loan Agreement
dated October 28, 1999 between Company, Genomic Solutions, Ltd.,
Genomic Solutions, K.K. and the October Lenders.
5. The following is added as an additional Section 1(n):
(n) "Purchasers" means the April Lenders and the October Lenders.
2
16
6. The following names and addresses are hereby added to Section 12:
Xxxxxxxx X. Xxxx
000 X. Xxxxxxxxx Xxx.
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxxx
XX00 0XX
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxx
00000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
7. Except as expressly set forth herein, the Agreement shall be
unaffected by this Amendment and remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
GENOMIC SOLUTIONS, INC.
by /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx, President
3
17
PAGE 1 OF 2
APRIL LENDERS
WHITE PINES LIMITED PARTNERSHIP I
By: White Pines G.P., L.L.C.,
its general partner
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
PACIFIC CAPITAL, L.P.
By: WP Pacific G.P., L.L.C.,
a general partner
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
IAN R. N. BUND XXXXX XXXXXX
PROTOTYPE PS PLAN ACCOUNT
#000-00000-00000
XXXXX CONSULTING ASSOCIATES, INC.
VOLUNTEER HEALTHCARE ASSOCIATES, L.L.C
MCDONALD INVESTMENTS INC. CUSTODIAN
FBO S. XXXXXXXX XXXXXXXX III XXX
ROLLOVER ACCOUNT #00000000
XXXXXX X. XXXXXX LIVING TRUST U/A/D
SEPTEMBER 9, 1997
XXXX X. XXXXXX
XXXXXXXX INVESTMENTS INC. CUSTODIAN
FBO XXXXXX X. XXXXX XXX
ROLLOVER ACCOUNT #00000000
NATIONAL CITY BANK OF MI/IL CUSTODIAN
FBO XXXXXXX X. XXXXXX XXX
ROLLOVER ACCOUNT DATED JUNE 12, 1991
#MI-1491-00-4
XXXXXXX AND ASSOCIATES PROFIT SHARING
PLAN X/X/X XXXXXXX 0, 0000
XXXXXXX X. XXXXXXXX
By: White Pines Management, L.L.C.,
a Michigan limited liability
company, attorney-in-fact
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
8
18
AMEND. 1-RRA
Page 2 of 2
APRIL LENDERS
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
AMERICAN HEALTHCARE FUND II
By: Capital Health Venture Partners
Its General Partners
By: /s/ Xxx X. Xxxxxxxx
-------------------------------
Xxx X. Xxxxxxxx
General Partner
/s/ J. Xxxxxxx Xxxxxxxxx
--------------------------------
J. XXXXXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
XXXX X. XXXXXXXXX
GROVE INVESTMENT PARTNERS
By: /s/ Xxxx X. Xxxx
-----------------------------
9
19
Page 1 of 2
OCTOBER LENDERS
WHITE PINES LIMITED PARTNERSHIP I
By: White Pines G.P., L.L.C.,
it's general partner
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
PACIFIC CAPITAL, L.P.
By: WP Pacific G.P., L.L.C.
a general partner
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
IAN R. N. BUND
XXXXX CONSULTING ASSOCIATES, INC.
VOLUNTEER HEALTHCARE ASSOCIATES, L.L.C
XXXXXX X. XXXXXX LIVING TRUST U/A/D
SEPTEMBER 9, 1997
McDONALD INVESTMENTS INC. CUSTODIAN
FBO XXXXXX X. XXXXX XXX ROLLOVER
ACCOUNT #00000000
XXXXXXX AND ASSOCIATES PROFIT SHARING
PLAN U/A/D JANUARY 1 1991
XXXXXXX X. XXXXXXXX
By: White Pines Management, L.L.C.,
a Michigan limited liability
company, attorney-in-fact
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: /s/Xxxxxx Xxxxxx
-----------------------------
American Healthcare Fund II, L.P.
By: Capital Health Venture Partners
Its General Partners
By: /s/Xxx X. Xxxxxxxx
-----------------------------
Xxx X. Xxxxxxxx
General Partner
10
20
AMEND. 1 - RRA
Page 2 of 2
OCTOBER LENDERS
/s/ J. XXXXXXX XXXXXXXXX
---------------------------
J. XXXXXXX XXXXXXXXX
/s/ XXXXXX X. XXXXXXX
---------------------------
XXXXXX X. XXXXXXX
/s/ XXXX X. XXXXXXXXX
---------------------------
XXXX X. XXXXXXXXX
GROVE INVESTMENT PARTNERS
By: /s/ Xxxx X. Xxxx
------------------------
/s/ XXXXXXXX X. XXXX
---------------------------
XXXXXXXX X. XXXX
/s/ XXXXXXX X. XXXXXXXX
---------------------------
XXXXXXX X. XXXXXXXX
/s/ XXXXX X. XXXXX
---------------------------
XXXXX X. XXXXX
/s/ XXXXXX X. XXXXXXXXX
---------------------------
XXXXXX X. XXXXXXXXX
/s/ XXXXXXX X. XXXXX
---------------------------
XXXXXXX X. XXXXX
/s/ XXXXXX X. XXXXXXXXXX
---------------------------
XXXXXX X. XXXXXXXXXX
