Exhibit 10.15
Registration Rights Agreement
by and among
Schlumberger Technologies, Inc.,
Schlumberger BV
and
NPTest, Inc.
_________ __, 2002
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS .......................................................... 1
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Section 1.1 Affiliate..................................................... 1
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Section 1.2 Common Stock.................................................. 1
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Section 1.3 Continuously Effective........................................ 2
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Section 1.4 Exchange Act.................................................. 2
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Section 1.5 Holders....................................................... 2
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Section 1.6 IPO........................................................... 2
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Section 1.7 IPO Closing Date.............................................. 2
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Section 1.8 IPO Restricted Period......................................... 2
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Section 1.9 Maximum Number................................................ 2
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Section 1.10 Person........................................................ 2
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Section 1.11 Prospectus.................................................... 2
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Section 1.12 Registrable Securities........................................ 2
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Section 1.13 Registration Expenses......................................... 3
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Section 1.14 Registration Statement........................................ 3
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Section 1.15 Related Securities............................................ 3
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Section 1.16 Securities Act................................................ 4
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Section 1.17 SEC........................................................... 4
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Section 1.18 Shelf Registration Statement.................................. 4
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Section 1.19 Underwritten Registration or Underwritten Offering............ 4
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Section 1.20 Underwriters' Representative.................................. 4
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ARTICLE II SECURITIES SUBJECT TO THIS AGREEMENT ................................ 4
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ARTICLE III REGISTRATION UNDER THE SECURITIES ACT .............................. 4
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Section 3.1 Shelf Registration............................................ 4
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Section 3.2 Required Registration......................................... 4
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Section 3.3 Incidental Registration....................................... 7
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ARTICLE IV BLACKOUT PERIOD ..................................................... 8
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Section 4.1 General....................................................... 8
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Section 4.2 Specific Blackout Procedures................................. 9
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ARTICLE V SELECTION OF UNDERWRITERS ............................................ 9
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ARTICLE VI HOLDBACK AGREEMENT .................................................. 10
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Section 6.1 Holder Sale or Distribution.................................. 10
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Section 6.2 Company Sale or Distribution................................. 10
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Section 6.3 Holder Distribution to Stockholders.......................... 10
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Section 6.4 Definitions.................................................. 10
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ARTICLE VII REGISTRATION PROCEDURES ............................................ 11
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Section 7.1 Required Procedures.......................................... 11
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ARTICLE VIII REGISTRATION EXPENSES ............................................. 15
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ARTICLE IX INDEMNIFICATION; CONTRIBUTION ....................................... 15
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Section 9.1 Indemnification by the Company............................... 15
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Section 9.2 Indemnification by Holders of Registrable Securities ........ 16
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Section 9.3 Conduct of Indemnification Proceedings ...................... 16
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Section 9.4 Contribution ................................................ 17
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ARTICLE X RULE 144 ............................................................. 18
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ARTICLE XI MISCELLANEOUS ....................................................... 18
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Section 11.1 Remedies..................................................... 18
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Section 11.2 Termination.................................................. 18
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Section 11.3 Amendment.................................................... 19
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Section 11.4 Entire Agreement............................................. 19
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Section 11.5 Notices...................................................... 19
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Section 11.6 Successors and Assigns....................................... 20
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Section 11.7 Authority.................................................... 20
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Section 11.8 Counterparts................................................. 20
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Section 11.9 Descriptive Headings......................................... 20
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Section 11.10 Governing Law................................................ 20
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Section 11.11 Severability................................................. 20
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _________, 2002, by and
among NPTest, Inc., a Delaware corporation (the "Company"), Schlumberger
Technologies, Inc., a Delaware corporation ("STI"), and Schlumberger BV, a
company organized under the laws of the British Virgin Islands ("SBV").
W I T N E S S E T H:
WHEREAS, STI and SBV collectively own all of the currently issued and
outstanding common stock of the Company;
WHEREAS, the parties hereto have entered into a Master Separation and
Sale Agreement (the "Master Separation Agreement") as described in the
Registration Statement on Form S-1, Registration No. 333-__________, as amended
or supplemented from time to time, pursuant to which the Company's shares will
become publicly traded;
WHEREAS, the parties hereto desire to set forth the rights of the
Holders (as hereinafter defined) and the obligations of the Company with respect
to the registration of the Registrable Securities (as hereafter defined)
pursuant to the Securities Act (as hereafter defined); and
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the obligations of each of the Holders and the Company
under the Master Separation Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements of
the Holders and the Company contained herein and in the Master Separation
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Master Separation Agreement. For purposes
of this Agreement the following terms shall have the following meanings:
Section 1.1 Affiliate. "Affiliate" of any Person means any entity
that controls, is controlled by, or is under common control with such Person. As
used herein, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
entity, whether through ownership of voting securities or other interests, by
contract or otherwise.
Section 1.2 Common Stock. "Common Stock" means the shares of common
stock, par value $0.01 per share, of the Company.
Section 1.3 Continuously Effective. "Continuously Effective" with
respect to a specified Registration Statement, means that such Registration
Statement shall not cease to be effective and available for transfers of
Registrable Securities in accordance with the method of distribution set forth
therein during the period specified in the relevant provision of this Agreement.
Section 1.4 Exchange Act. "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to time, and the rules and
regulations promulgated thereunder.
Section 1.5 Holders. "Holders" means, collectively, Schlumberger
Technologies Inc., Schlumberger BV and their respective Affiliates (other than
the Company and its controlled Affiliates) who from time to time own Registrable
Securities or any transferee of a Holder entitled to the benefits of this
Agreement; each of such entities separately is sometimes referred to herein as a
"Holder."
Section 1.6 IPO. "IPO" means the initial public offering of shares
of the Common Stock (the "Shares") contemplated by the Master Separation
Agreement.
Section 1.7 IPO Closing Date. "IPO Closing Date" has the meaning set
forth in the Master Separation and Sale Agreement.
Section 1.8 IPO Restricted Period. "IPO Restricted Period" means the
period, if any, during which the Holders agree with the representatives of the
Underwriters in the IPO not to sell shares of Common Stock, as the same may be
waived, shortened or, with the consent of the Holders, extended.
Section 1.9 Maximum Number. "Maximum Number" when used in connection
with an underwritten offering, shall mean the maximum number of shares of Common
Stock (or amount of other Registrable Securities) that the Underwriters'
Representative has informed the Company and the Holders may be included as part
of such offering without materially and adversely affecting the success or
pricing of such offering.
Section 1.10 Person. "Person" shall mean any natural person, firm,
individual, corporation, partnership, limited liability company, joint venture,
business trust, association, trust, company or other organization or entity,
whether incorporated or unincorporated.
Section 1.11 Prospectus. "Prospectus" means the prospectus included
in a 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 such 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.
Section 1.12 Registrable Securities. "Registrable Securities" means,
collectively, (i) the shares of Common Stock owned by the Holders immediately
following the first closing of the IPO (the "Shares"), (ii) any stock or other
securities (of the Company or any other issuer) into which or for which the
Shares may hereafter be changed, converted or
exchanged, (iii) any other securities issued or distributed in respect of the
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger, consolidation
or otherwise, and (iv) any other successor securities received in respect of any
of the foregoing (i) through (iii); provided that in the event that any
Registrable Securities (as defined without giving effect to this proviso) are
being registered pursuant hereto, the Holder may include in such registration
(subject to the limitations of this Agreement otherwise applicable to the
inclusion of Registrable Securities) any shares of Common Stock or securities
acquired in respect thereof acquired at any time by such Holder, which shall
also be deemed to be "Shares", and accordingly Registrable Securities, for
purposes of such registration.
Section 1.13 Registration Expenses. "Registration Expenses" means any
and all out-of-pocket expenses incident to performance of or compliance with
this Agreement, including, without limitation, (i) all SEC and securities
exchange registration and filing fees, (ii) all fees and expenses of complying
with securities or blue sky laws (including fees and disbursements of counsel
for any underwriters in connection with blue sky qualifications of the
Registrable Securities) or relating to the National Association of Securities
Dealers, Inc. (the "NASD"), (iii) all printing, messenger and delivery expenses,
(iv) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange pursuant to Section 7(h), (v)
the fees and disbursements of counsel for the Company and of its independent
public accountants, (vi) all expenses in connection with the preparation,
printing and filing of the Registration Statement, any preliminary Prospectus or
final Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to any Holders, underwriters and dealers and all
expenses incidental to delivery of the Registrable Securities, (vii) subject to
the limitations set forth in Section 8, the reasonable fees and disbursements of
counsel, other than the Company's counsel, selected by the Holders of the
Registrable Securities being registered, (viii) the reasonable fees and expenses
of any special experts retained in connection with the requested registration,
(ix) any internal expenses of the Company and cost of Company employees, (x) the
expenses incurred in connection with making "roadshow" presentations and holding
meetings with potential investors to facilitate the distribution and sale of
Registrable Securities, but shall not include with respect to Registrable
Securities sold by the Holders (a) underwriting discounts and commissions and
transfer taxes, if any, and (b) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities.
Section 1.14 Registration Statement. "Registration Statement" means
any registration statement of the Company which covers Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statements including
post-effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
Section 1.15 Related Securities. "Related Securities" means any
securities of the Company similar or identical to any of the Registrable
Securities including, without limitation, Common Stock and all options,
warrants, rights and other securities convertible into, or exchangeable or
exercisable for Common Stock (other than any of the foregoing to be offered or
sold to officers, directors or employees as compensation).
Section 1.16 Securities Act. "Securities Act" means the Securities
Act of 1933, as amended from time to time, and the rules and regulations
thereunder.
Section 1.17 SEC. "SEC" means the Securities and Exchange Commission.
Section 1.18 Shelf Registration Statement. "Shelf Registration
Statement" means a Registration Statement filed with the SEC for an offering to
be made on a continuous basis pursuant to Rule 415 under the Securities Act (or
any similar rule that may be adopted by the SEC) covering some or all of the
Registrable Securities, as applicable.
Section 1.19 Underwritten Registration or Underwritten Offering.
"Underwritten Registration or Underwritten Offering" shall mean a registration
in which securities of the Company are sold to one or more underwriters for
reoffering to the public.
Section 1.20 Underwriters' Representative. "Underwriters'
Representative" when used in connection with an Underwritten Offering, shall
mean the managing underwriter of such offering, or, in the case of a co-managed
underwriting, the managing underwriter designated as the Underwriters'
Representative by the co-managers.
ARTICLE II
SECURITIES SUBJECT TO THIS AGREEMENT
The securities entitled to the benefits of this Agreement are the
Registrable Securities. For the purposes of this Agreement, Registrable
Securities will cease to be Registrable Securities when (i) a Registration
Statement covering such Registrable Securities has been declared effective under
the Securities Act and they have been disposed of pursuant to such effective
Registration Statement, (ii) such Registrable Securities are distributed to the
public pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, (iii) such Registrable Securities shall have been otherwise
transferred to a person who is not a Holder, or (iv) such Registrable Securities
shall have ceased to be outstanding.
ARTICLE III
REGISTRATION UNDER THE SECURITIES ACT
Section 3.1 Shelf Registration. Within 120 days after the Company
first becomes eligible to use a Shelf Registration Statement (the "Shelf
Registration Statement Eligibility Date"), the Company shall file and use its
reasonable efforts to cause to become effective not later than the 150th day
after the Shelf Registration Statement Eligibility Date, a Shelf Registration
Statement on any appropriate form for all the Registrable Securities, which form
shall be available for the sale of the Registrable Securities in accordance with
the intended method or methods of distribution thereof, as specified by the
Holders (including pursuant to one or more Underwritten Offerings); provided
that at the request of the Holders, the filing and effectiveness of the Shelf
Registration Statement may be delayed for such a period as the Holders request.
The Company agrees to use its reasonable efforts, taking into account the
unavailability of incorporation by reference prior to
the Company's becoming eligible to use Form S-3, to keep such Registration
Statement Continuously Effective and usable for resale of Registrable
Securities, for a period of twenty-four (24) months from the date on which the
SEC declares such Registration Statement effective or such shorter period which
will terminate when all the Registrable Securities covered by such Registration
Statement cease to be Registrable Securities; provided, however, that the
Company may elect that such Registration Statement not be filed or usable during
any Blackout Period (as defined in Article IV). No incidental or piggyback
registration rights shall be available to any Person (including the Company)
with respect to the Shelf Registration Statement, and no Person (including the
Company) shall have the right to have any securities other than the Registrable
Securities included therein or registered thereon.
The registration rights granted pursuant to the provisions of this
Section 3.1 shall be in addition to the registration rights granted pursuant to
other provisions of this Article III and the number of Demand Registrations
provided pursuant to Section 3.2 below shall not be reduced by reason of any
underwritten offerings effected pursuant to the Shelf Registration.
Section 3.2 Required Registration.
(a) The Holders shall have the right to request in writing (a
"Request") (which Request shall specify the Registrable Securities intended to
be disposed of by such Holders and the intended method of distribution thereof,
which may include disposition (1) from time to time or on a continuous or
delayed basis pursuant to Rule 415 under the Securities Act (or any similar
rule) and accordingly require the filling of a "shelf" registration statement
and/or (2) sales for cash or dispositions upon exchange or conversion of
securities or dispositions for any form of consideration or no consideration)
that the Company register such portion of such Holders' Registrable Securities
as shall be specified in the Request (a "Demand Registration") by filing with
the SEC, as soon as practicable thereafter, but not later than the 30th day (or
the 45th day if the applicable registration form is Form S-1 or S-2) after the
receipt of such a Request by the Company, a registration statement (a "Demand
Registration Statement") covering such Registrable Securities, and the Company
shall use its best efforts to have such Demand Registration Statement declared
effective by the SEC as soon as practicable thereafter, but in no event later
than the 75th day (or the 90th day if the applicable registration form is Form
S-1 or S-2) after the receipt of such a Request; provided that the Company is
not required to file any Registration Statement prior to the last day of the IPO
Restricted Period (but shall prepare a Registration Statement if requested to
enable it to be filed on such last day). The Company agrees to use its best
efforts, taking into account the unavailability of incorporation by reference
prior to the Company's becoming eligible to use Form S-3, to keep such Demand
Registration Statement Continuously Effective for the period specified in the
Request, as extended by the length of any Suspension Period (as defined in
Article VII) with respect thereto (or for such shorter period which will
terminate when all of the Registrable Securities covered by such Demand
Registration Statement shall have been sold pursuant thereto), including, if
necessary, by filing with the SEC a post-effective amendment or a supplement to
the Demand Registration Statement or the related prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Demand Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Demand Registration Statement or
by the Securities Act, the Exchange Act, any state securities or blue sky laws,
or any rules and
regulations thereunder; provided that such period during which the Demand
Registration Statement shall remain Continuously Effective shall, in the case of
an Underwritten Offering, be extended for such period (if any) as the
underwriters shall reasonably require, including to satisfy, in the judgment of
counsel to the underwriters, any prospectus delivery requirements imposed by
applicable law.
The Company shall not be obligated to effect more than four (4) Demand
Registrations pursuant to Requests. For purposes of the preceding sentence, a
Demand Registration shall not be deemed to have been effected, (i) unless a
Demand Registration Statement with respect thereto has become effective, (ii) if
after such Demand Registration Statement has become effective, the offer, sale
or distribution of Registrable Securities thereunder is prevented by any stop
order, injunction or other order or requirement of the SEC or other Governmental
Entity for any reason not attributable to any Holder and such effect is not
thereafter eliminated, or (iii) in the case of an Underwritten Offering, if the
conditions to closing specified in the underwriting agreement entered into in
connection with such Registration are not satisfied or waived, other than by
reason of a failure on the part of any Holder. If the Company shall have
complied with its obligations under this Agreement, a right to a Demand
Registration pursuant to this Section 3.2 shall be deemed to have been satisfied
upon the earlier of (x) the date as of which all of the Registrable Securities
included therein shall have been sold to the underwriters or distributed
pursuant to the Demand Registration Statement, and (y) the date as of which such
Demand Registration shall have been Continuously Effective for a 60-day period
or other period specified in the preceding paragraph following the effectiveness
of such Demand Registration Statement.
Any Request made pursuant to this Section 3.2 shall be addressed to
the attention of the Secretary of the Company, and shall specify (a) the number
of Registrable Securities to be Registered (which shall be not less than the
lesser of (i) 5% of the total number of shares of Common Stock, provided that
the aggregate public offering price of the Registrable Securities to be
registered (based on the closing sale price of the Common Stock on the last
trading day prior to the delivery of a Request) would not be less than $[____]
million), or (ii) the remaining balance of the Registrable Securities then held
by the Holders, (b) the intended method of distribution thereof and the
requested period of effectiveness, and (c) that the request is for a Demand
Registration pursuant to this Section 3.2.
(b) The Company may not include in a Demand Registration
pursuant to Section 3.2(a) hereof, shares of Common Stock for the account of the
Company or any subsidiary of the Company, but, if and to the extent required by
a contractual obligation, may, subject to compliance with Section 3.2(c),
include shares of Common Stock for the account of any other Person who holds
shares of Common Stock entitled to be included therein; provided, however, that,
except to the extent modified with the consent of the Holders, if the
Underwriters' Representative of any offering described in this Section 3.2 shall
have informed the Holders in writing that in its judgment there is a Maximum
Number of shares of Common Stock that all Holders and any other Persons desiring
to participate in such Registration may include in such offering, then the
Company shall include in such Demand Registration all Registrable Securities
requested to be included in such Registration by the Holders together with up to
such additional number of shares of Common Stock that any other Persons entitled
to participate in such Registration desire to include in such Registration up to
the Maximum Number that the
Underwriters' Representative has informed the Holders may be included in such
Registration without materially and adversely affecting the success or pricing
of such offering; provided that the number of shares of Common Stock to be
offered for the account of all such other Persons participating in such
Registration shall be reduced in a manner determined by the Company in its sole
discretion.
(c) No Holder may participate in any underwritten offering
under Article III hereof and no other Person shall be permitted to participate
in any such offering pursuant to Section 3.2 or 3.3 hereof unless it completes
and executes all customary questionnaires, powers of attorney, custody
agreements, underwriting agreements, and other customary documents required
under the customary terms of such underwriting arrangements. In connection with
any underwritten offering under Article III hereof, each participating Holder
and the Company and, except in the case of Section 3.1 hereof, each other Person
shall be a party to the underwriting agreement with the underwriters and may be
required to make certain customary representations and warranties and provide
certain customary indemnifications for the benefit of the underwriters; provided
that the Holders shall not be required to make representations and warranties
with respect to the Company and its Subsidiaries or their business and
operations and shall not be required to agree to any indemnity or contribution
provisions less favorable to them than as are set forth herein.
Section 3.3 Incidental Registration.
(a) If at any time the Company proposes to register any
Related Securities under the Securities Act (other than in connection with any
acquisition or business combination transaction and other than in connection
with stock options and other stock-based employee benefit plans and
compensation) either in connection with a primary offering for cash for the
account of the Company, a secondary offering or a combined primary and secondary
offering, the Company will each time it intends to effect such a registration,
give written notice (a "Company Notice") to all Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
registration statement with the SEC pertaining thereto, informing such Holders
of its intent to file such registration statement and of the Holders' right to
request the registration of the Registrable Securities held by the Holders. Upon
the written request of the Holders made within 7 business days after any such
Company Notice is given (which request shall specify the Registrable Securities
intended to be disposed of by such Holder and, unless the applicable
registration is intended to effect a primary offering of Common Stock for cash
for the account of the Company, the intended method of distribution thereof),
the Company will use its reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders to the extent required to permit the
disposition (in accordance with the intended methods of distribution thereof or,
in the case of a registration which is intended to effect a primary offering for
cash for the account of the Company, in accordance with the Company's intended
method of distribution) of the Registrable Securities so requested to be
registered, including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the registration statement filed by the Company or
the related prospectus or any document incorporated therein by reference or by
filing any other required document or otherwise supplementing or amending the
registration statement filed by the Company, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such registration statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay such registration of the
securities, the Company shall give written notice of such determination to each
Holder of Registrable Securities and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses incurred in connection
therewith), and (B) in the case of a determination to delay such registration,
the Company shall be permitted to delay registration of any Registrable
Securities requested to be included in such registration statement for the same
period as the delay in registering such other securities.
The registration rights granted pursuant to the provisions of this
Section 3.3 shall be in addition to the registration rights granted pursuant to
the other provisions of this Article III.
(b) If, in connection with a Registration Statement pursuant
to this Section 3.3, the Underwriters' Representative of the offering registered
thereon shall inform the Company and the Holders in writing that in its opinion
there is a Maximum Number of shares of Common Stock that may be included
therein; then (a) in the event such Registration Statement relates to an
offering initiated by the Company of Common Stock being offered for the account
of the Company, the Company may include in such registration the number of
shares it proposes to offer and, if such number is less than the Maximum Number,
then the number of shares of Common Stock requested to be included by any Person
(including the Holders) other than the Company may be reduced, pro rata in
proportion to the respective number of shares of Common Stock owned by such
Persons, to the extent necessary to reduce the respective total number of shares
of Common Stock requested to be included in such offering to the Maximum Number
of shares of Common Stock recommended by such Underwriters' Representative and
(b) in the event such a Registration Statement is initiated by any Person other
than the Company, except to the extent modified with the consent of the Holders,
the number of shares of Common Stock requested to be included by such Person
and, any other Person (including the Holders) may be reduced pro rata in
proportion to the respective number of shares of Common Stock owned by such
Persons, to the extent necessary to reduce the respective total number of shares
of Common Stock requested to be included in such offering to the Maximum Number.
ARTICLE IV
BLACKOUT PERIOD
Section 4.1 General. Subject to the provisions in Section 4.2, the
Company shall be entitled to elect that a Registration Statement not be usable,
or that the filing thereof be delayed beyond the time otherwise required, for a
reasonable period of time, but not in excess of 60 days (a "Blackout Period"),
if the Company determines in good faith that the registration and distribution
of Registrable Securities (or the use or filing of the Registration Statement or
related Prospectus) would interfere with any pending material financing,
acquisition, corporate reorganization or any other material corporate
development involving the Company or any of its
subsidiaries or would require premature disclosure thereof and promptly gives
the Holders of Registrable Securities written notice of such determination, and
if requested by Holders, the Company will promptly deliver to it a general
statement of the reasons for such postponement or restriction on use and to the
extent practicable an approximation of the anticipated delay; provided, however,
that the aggregate number of days included in all Blackout Periods, when taken
together with any Suspension Periods (as defined in Article VII), during any
consecutive 12 months shall not exceed 90 days.
Section 4.2 Specific Blackout Procedures. All Registrable Securities
sold or distributed under a Demand Registration shall be made in accordance with
the following provisions:
(a) Underwritten Offerings. With respect to an Underwritten
Offering, the provisions of Section 4.1 shall apply to the delaying by the
Company of (i) the filing of a Registration Statement and (ii) causing a
Registration Statement to become effective. Once an underwriting agreement as
contemplated by Section 7(i) has been entered into in connection with the
Underwritten Offering, the terms of such underwriting agreement and Section 3.1,
and not the provisions of Section 4.1, shall govern the continued effectiveness
and use of the Registration Statement as it relates to such Underwritten
Offering.
(b) Other Offerings. With respect to an offering other than
an Underwritten Offering, the procedures of this Section 4.2(b) shall supplement
Section 4.1 with respect to sales after the effectiveness of the Registration
Statement. Prior to any sale pursuant to this Section 4.2(b), the Holder shall
give notice (by electronic mail) to ______________, ________________ of the
Company (_____________@____________.com) and to ______________, ________________
of the Company (_____________@____________.com). The Holder may give notice of
such intent to sell three business days prior to the beginning of the two-week
period. The Company shall respond as promptly as practicable to any such notice,
and shall respond in any event within two business days (by electronic mail) to
_____________, __________ of _____________(__________@xxx.xxx) and to
_____________, __________ of _____________(__________@xxx.xxx). Such response
shall indicate either (A) that the Holder may use the Registration Statement for
the next 14 calendar days, unless the Company subsequently gives a Suspension
Notice or (B) that the Holder may not use the Registration Statement and that a
Blackout Period is in effect as contemplated by Section 4.1. If the Company does
not respond within two business days, the lack of response shall be deemed a
response described in (A) of the preceding sentence.
ARTICLE V
SELECTION OF UNDERWRITERS
If any offering pursuant to a Shelf Registration Statement or a Demand
Registration Statement is an underwritten offering, the Holders will select a
managing underwriter or underwriters to administer the offering, in its sole
discretion after consultation with the Company. In any incidental registration
pursuant to Section 3.2, the Company will select a managing underwriter or
underwriters to administer the offering, in its sole discretion after
consultation with the Holders.
ARTICLE VI
HOLDBACK AGREEMENT
Section 6.1 Holder Sale or Distribution. If so requested by the
Underwriters' Representative in connection with an offering of securities
covered by a registration statement filed by the Company, if Registrable
Securities of a Holder are included therein or such Holder declined to include
therein any Registrable Securities owned by it, such Holder shall agree not to
effect any sale or distribution of the Shares, including a sale pursuant to Rule
144, without the prior written consent of the Underwriters' Representative
(except as part of such Underwritten Registration), during the 7-day period
prior to, and during the 90-day period beginning on, the date such registration
statement is declared effective under the Securities Act by the SEC; provided
that the Holders are timely notified of such effective date in writing by the
Company or the Underwriters' Representative. Notwithstanding the foregoing, a
Holder may transfer Registrable Securities to a person who agrees not to effect
any sale or distribution of shares without the prior written consent of the
Underwriters' Representative during such period. The Holders shall not be
subject to the restrictions set forth in this Section 6.1 for longer than 97
days during any 12-month period and a Holder shall no longer be subject to such
restrictions at such time as such Holder together with its affiliates shall own
less than 5% of the then outstanding shares of Common Stock on a fully-diluted
basis.
Section 6.2 Company Sale or Distribution. If so requested by the
Underwriters' Representative in connection with an offering of any Registrable
Securities, the Company shall agree not to effect any sale or distribution of
shares of Common Stock, without the prior written consent of the Underwriters'
Representative (other than as a part of such offering or in connection with any
acquisition or business combination transaction and other than in connection
with stock options and employee benefit plans and compensation) during the 7-day
period prior to, and during the 90-day period beginning on, the date such
registration statement is declared effective under the Securities Act by the SEC
and shall use its best efforts to obtain and enforce similar agreements from any
other Persons if requested by the Underwriters' Representative; provided that
the Company or such Persons shall not be subject to the restrictions set forth
in this Section 6.2 for longer than 97 days during any 12-month period.
Section 6.3 Holder Distribution to Stockholders. Notwithstanding
anything else in this Article VI to the contrary, no Holder shall be precluded
from distributing to any or all of its stockholders any or all of the
Registrable Securities.
Section 6.4 Definitions. As used in Sections 6.1 and 6.2 of this
Article VI, "sales" or "distributions" shall be deemed to include, to the extent
requested by the Underwriters' Representative, (1) contracts to sell, sales of
options or contracts to purchase, purchases of any option or contract to sell,
grants of options, rights or warrants to purchase or otherwise transfer or
dispose of, directly or indirectly, any of the Shares or any securities
convertible into or exercisable or exchangeable for the Shares and (2) swaps or
other arrangements that transfer to another, in whole or in part, any of the
economic consequences of ownership of the Shares,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of the Shares or such other securities, in cash or
otherwise.
ARTICLE VII
REGISTRATION PROCEDURES
Section 7.1 Required Procedures. If and whenever the Company is
required to or to use its best efforts to effect or cause the registration of
any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible and without limiting
any time period or obligation set forth elsewhere in this Agreement:
(a) Prepare and file with the SEC a Registration Statement
with respect to such Registrable Securities on a form for which the Company then
qualifies, and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its best efforts to cause such Registration Statement to become and remain
effective; provided that, a reasonable time before filing a Registration
Statement or Prospectus, or any amendments or supplements thereto (other than
reports required to be filed by it under the Exchange Act and the rules and
regulations adopted by the SEC thereunder), the Company will furnish to the
Holders and their counsel for review and comment, copies of all documents
proposed to be filed and provided further, that if the Holders so request (x)
they and their counsel and other representatives may participate in the drafting
and preparation of such Registration Statement and (y) such information as they
believe may be beneficial to be included in the Registration Statement for
marketing purposes shall be included therein so long as disclosure of such
information (1) is in compliance with applicable law and (2) does not
competitively harm the Company;
(b) Prepare and file with the SEC amendments and
post-effective amendments to each such Registration Statement and such
amendments and supplements to the Prospectus used in connection therewith as may
be required by the Securities Act or the Exchange Act or otherwise necessary to
keep the Registration Statement effective for the applicable period and cause
the Prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to otherwise comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition set forth in
such Registration Statement and Prospectus or such earlier time as the Company's
obligations to maintain the effectiveness and availability for use of such
Registration Statement ceases;
(c) Furnish to each Holder of such Registrable Securities
such number of copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits), the
Prospectus and Prospectus supplement, as applicable, and such other documents as
such Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities by such Holder (the Company hereby consenting to the use
(subject to the limitations set forth in the last paragraph of this Section 7)
of the Prospectus or any amendment or supplement thereto in connection with such
disposition);
(d) Use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as each Holder shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 7(d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) Notify each Holder of any such Registrable Securities covered
by such Registration Statement, at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act within the appropriate
period mentioned in Section 7, of the Company's becoming aware that the
Prospectus included in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, then
existing, and at the request of any such Holder, prepare and furnish to such
Holder a reasonable number of copies of an amendment or supplement to the
Registration Statement or related Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(f) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time,
(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, and of any comments, oral or written, by the SEC with
respect thereto,
(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) if at any time the representations and warranties of
the Company made pursuant to agreements contemplated by paragraph
(i)(i) below cease to be true and correct, and
(v) of the receipt by the Company of any notification with
respect to the suspension of qualification or exemption from
qualification of
the Registrable Securities for offering or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
(g) Otherwise use its best efforts to make available to its
security holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(h) Cause all such Registrable Securities to be listed on any
securities exchange on which the Common Stock is then listed, if such
Registrable Securities are not already so listed and if such listing is then
permitted under the rules of such exchange, and to provide a transfer agent,
CUSIP number and registrar for such Registrable Securities covered by such
Registration Statement no later than the effective date of such Registration
Statement;
(i) Enter into agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities as is customarily made or done by
issuers of comparable standing in connection with comparable offerings and in
such connection (to the extent so customary):
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, and agree
to such indemnification and contribution agreements, in form, substance
and scope as are customarily made by issuers to underwriters in
comparable underwritten offerings;
(ii) obtain opinions of counsel to the Company (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriters, if any, and the Holders of the
Registrable Securities being sold) addressed to each Holder and the
underwriters, if any, covering the matters customarily covered in
opinions requested in comparable underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters;
(iii) obtain comfort letters and updates thereof from the
Company's independent accountants addressed to the selling Holders of
Registrable Securities and the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters by underwriters in connection with comparable
underwritten offerings;
(iv) if requested, provide the indemnification in accordance
with the provisions and procedures of Article IX hereof to all parties
to be indemnified pursuant to said Article; and
(v) deliver such documents and certificates as may be
reason ably requested by the Holders of a majority of the Registrable
Securities being sold and the underwriters, if any, to evidence
compliance with clause (f) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company. The matters set forth
in this Section 7.1(i) shall be effected at each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(j) Cooperate with the Holders of Registrable Securities covered
by such Registration Statement and the underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing the securities to be sold under such
Registration Statement, and enable such securities to be in such denominations
and registered in such names as the underwriter or underwriters, if any, or such
Holders may request, or take other appropriate action if the Registrable
Securities are to be uncertificated;
(k) If requested by the underwriter or underwriters or a Holder
of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the underwriters and the Holders of the
Registrable Securities being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the amount of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such offering
and make all required filings of such Prospectus supplement or post-effective
amendment promptly upon being notified of the matters of be incorporated in such
Prospectus supplement or post-effective amendment;
(l) In the event of any Underwritten Offering, participate, and
have senior management available to participate, in any "roadshow" marketing
efforts reasonably requested by the underwriters; and
(m) Make available for inspection by any Holder of Registrable
Securities included in such Registration Statement, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by any such Holder or
underwriter in connection with such disposition, such financial and other
records and other information, pertinent corporate documents and properties of
any of the Company and its Subsidiaries and controlled Affiliates, as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility.
The Company may require each Holder of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such Holder and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice (the "Suspension Notice") from the Company of the happening of any event
of the kind described in Section 7(e), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Prospectus or Registration
Statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
7(e), and, if so directed by the Company, such Holder will use its reasonable
efforts to deliver to the Company (at the Company's expense) all copies, other
than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period of time during which the
Registration Statement is required to be Continuously Effective pursuant to
Article III hereof shall be extended by the number of days during the period
(the "Suspension Period") from the date of the giving of such Suspension Notice
and through the date when the Holders of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 7.1(e).
ARTICLE VIII
REGISTRATION EXPENSES
The Company will pay all Registration Expenses in connection with all
registrations of Registrable Securities, and the Holders shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holders' Registrable Securities pursuant to a
Registration Statement.
ARTICLE IX
INDEMNIFICATION; CONTRIBUTION
Section 9.1 Indemnification by the Company. The Company agrees to
indemnify each Holder of Registrable Securities, its officers and directors and
each Person who controls such Holder (within the meaning of the Securities Act),
and any agent and investment or financial adviser thereof against all losses,
claims, damages, liabilities and expenses (including reasonable attorneys' fees
and expenses of investigation) incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation arising out of or based
upon (i) any untrue or alleged untrue statement of material fact contained in a
Registration Statement, any Prospectus or preliminary Prospectus, or any
amendment or supplement to any of the foregoing or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus or a
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, except in each case insofar as the same arise out of or
are based upon any such untrue statement or omission made in reliance on and in
conformity with information furnished in writing to the Company by any
indemnified party or its counsel expressly for use therein. In connection with
an Underwritten Offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders of Registrable Securities
(provided that as to each underwriter the exception to such indemnification
obligation shall instead be for information with respect to such underwriter
furnished in writing by such underwriter or its counsel). Notwithstanding the
foregoing provisions of this Section 9.1, in the case of an offering that is not
an Underwritten Offering, the Company will not be liable to any Holder of
Registrable Securities under the indemnity agreement in this Section 9.1 for any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense that arises out of such Holder's failure to send or give a copy of
the final Prospectus (as it may then be amended or supplemented) to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus (as it may then be
amended or supplemented) and the Company has previously furnished copies thereof
in accordance with this Agreement.
Section 9.2 Indemnification by Holders of Registrable Securities. In
connection with a Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name, address
and the amount of Registrable Securities held by such Holder, as the Company
reasonably requests for use in such Registration Statement or the related
Prospectus and agrees to indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 9.1) the Company, all other prospective
Holders or any underwriter, as the case may be, and any of their respective
affiliates, directors, officers and controlling Persons (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact required to be
stated in such Registration Statement or Prospectus or any amendment or
supplement to either of them or necessary to make the statements therein (in the
case of a Prospectus, in the light of the circumstances then existing) not
misleading, but only to the extent that any such untrue statement or omission is
made in reliance on and in conformity with information with respect to such
Holder furnished in writing to the Company by such Holder or its counsel
specifically for inclusion therein.
Section 9.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified party
may claim indemnification or contribution pursuant to this Agreement (provided
that failure to give such notification shall not affect the obligations of the
indemnifying person pursuant to this Article IX except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure). In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
the indemnified parties and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, except as provided in the following sentence. Any such
indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to pay such fees and expenses
or (ii) the indemnifying party shall have failed to promptly assume the defense
of such action, claim or proceeding or (iii) the named parties to any such
action, claim or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses could, in the
good faith judgment
of the indemnified party, create a conflict of interest such that counsel
employed by the indemnifying party could not faithfully represent the
indemnified party (in case of clauses (ii) and (iii), if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party (which counsel shall be
reasonably satisfactory to the indemnifying party), the indemnifying party shall
not have the right to assume the defense of such action, claim or proceeding on
behalf of such indemnified party; it being understood, however, that the
indemnifying party shall not, in connection with any one such action, claim or
proceeding or separate but substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such indemnified parties, unless in the good faith judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). The
indemnifying party will not be subject to any liability for any settlement made
without its consent (which consent will not be unreasonably withheld).
Section 9.4 Contribution. To the extent the indemnification from the
indemnifying party provided for in this Article IX is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims, damages,
liabilities and 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 any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9.3, any legal and other fees and expenses
reasonably incurred by such indemnified party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 9.4 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9.4, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Holder of Registrable Securities shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Holder were offered to the public (net of all underwriting
discounts and commissions) exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such
untrue statement or omission. 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. To the extent indemnification is available under this Article
IX, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 9.1 or 9.2, as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this Section 9.4.
(a) The provisions of this Article IX shall be applicable
in respect of each registration pursuant to this Agreement, shall be in addition
to any liability which any party may have to any other party and shall survive
any termination of this Agreement.
ARTICLE X
RULE 144
For a period of two years following the IPO Closing Date or, if at the end
of such two year period, a Holder is an affiliate (as defined in Rule 144 under
the Securities Act) of the Company, until such time as no Holder is an affiliate
(as defined in Rule 144 under the Securities Act) of the Company, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act (or, if the Company is not required to file
such reports, it will, upon the request of any Holder of Registrable Securities,
make publicly available other information so long as necessary to satisfy the
requirements of Rule 144 under the Securities Act relating to the availability
of public information), 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 exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Remedies. No failure or delay on the part of either
party hereto in the exercise of any right hereunder shall impair such right or
be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
Each Holder of Registrable Securities in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
Section 11.2 Termination. The right of any Holder to request
registration or inclusion in any registration pursuant to this Agreement shall
terminate on such date after the IPO Closing Date as all shares of Registrable
Securities held or entitled to be held upon
conversion by such Holder (and any affiliate that is a Holder) may immediately
be sold under Rule 144 during any ninety (90) day period.
Section 11.3 Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of the Company and
Holders owning a majority of the Registrable Securities.
Section 11.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
Section 11.5 Notices. Notices, offers, requests or other
communications required or permitted to be given by either party pursuant to the
terms of this Agreement shall be given in writing to the respective parties to
the following addresses:
if to the Holders:
Schlumberger Technologies, Inc.
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
and:
Schlumberger BV
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to the Company:
NPTest, Inc.
[To Come]
Attention: General Counsel
Telephone: [__________]
Facsimile: [__________]
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three days from the
date of postmark.
Section 11.6 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors of each of the parties and
each transferee of Registrable Securities who is an affiliate of a Holder or who
is designated to come within the term "Holder" by the transferor.
Section 11.7 Authority. Each of the parties hereto represents to
the other that (a) it has the corporate or other requisite power and authority
to execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 11.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 11.9 Descriptive Headings. The headings contained in this
Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to an Article or a
Section, such reference shall be to an Article or Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated.
Section 11.10 Governing Law. This Agreement shall be construed in
accordance with, and any dispute, controversy or claim hereunder shall be
governed by, the laws of the State of Delaware, excluding its conflict of law
rules and the United Nations Convention on Contracts for the International Sale
of Goods.
Section 11.11 Severability. If any term or other provision of this
Agreement is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
NPTEST, INC.
By: ___________________________________
Name:
Title:
SCHLUMBERGER TECHNOLOGIES, INC.
By: ___________________________________
Name:
Title:
SCHLUMBERGER BV
By: ___________________________________
Name:
Title:
