Exhibit 2.10
SHARE TRANSFER AND REGISTRATION RIGHTS AGREEMENT
This Share Transfer and Registration Rights Agreement dated as of
September 25, 1997, by and between Agri-Nutrition Group Limited, a Delaware
corporation ("Agri-Nutrition") and the Stockholders of Mardel Laboratories,
Inc., a Delaware corporation ("Mardel") listed on the signature page hereof
(together with their permitted assigns, the "Stockholders").
RECITALS
A. Agri-Nutrition, Mardel Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Agri-Nutrition ("Acquisition"), and
Mardel have entered into an Agreement and Plan of Merger dated September 25,
1997 (the "Merger Agreement") pursuant to which Mardel will merge with and into
Acquisition and the shares of Mardel Common Stock held by the Stockholders will
be canceled and extinguished and converted into the right to receive cash and
shares of Agri-Nutrition Common Stock, $.01 par value per share, pursuant to the
terms of Section 1(e) of the Merger Agreement (the "Merger Shares"); and
B. Under the Merger Agreement, it is a condition precedent to the
obligation of each of the parties to the Merger Agreement to consummate the
Merger that Agri-Nutrition and the Stockholders execute and deliver this
Agreement, and the Stockholders and Agri-Nutrition are willing to do so in order
to induce the other parties to perform their obligations under the Merger
Agreement.
NOW, THEREFORE, in order to induce Agri-Nutrition and the Stockholders
to consummate the transactions contemplated by the Merger Agreement and in
consideration of the premises and agreements contained in this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
Section 1. RESTRICTIONS ON TRANSFER OF MERGER SHARES
Each Stockholder hereby agrees not to sell, assign, pledge, grant a
security interest in, or otherwise transfer, dispose of, or encumber all or any
part of his or her right, title, or interest in the Merger Shares until the date
following the second anniversary of the date of the Closing without the prior
written consent of Agri-Nutrition; provided, however, that the Merger Shares may
be transferred hereunder (i) pursuant to will or the laws of intestacy, (ii)
pursuant to a transaction not involving the payment of consideration undertaken
for purposes of estate planning, (iii) by bona fide gift, or (iv) by operation
of law. Any transaction contrary to the terms of this Section 1 shall be void.
All certificates representing Merger Shares shall have inscribed thereon the
following legends:
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The shares represented by this certificate are subject to restrictions
on transfer pursuant to the Share Transfer and Registration Rights
Agreement dated September 25, 1997, a copy of which is available for
inspection at the principal office of the issuer, and no transfer of
the shares represented by this certificate shall be valid or effective
unless such transfer is effected in accordance with the terms of such
Agreements.
The shares represented by this certificate have not been registered
pursuant to the Securities Act of 1933, as amended, and are
transferable only upon such registration or delivery of an opinion of
counsel, reasonably satisfactory to the issuer, that such transfer may
be lawfully effected in the absence of such registration.
The restrictions on transfer set forth in this Section 1 shall be binding upon
the parties hereto and upon any permitted purchasers, assignees, beneficiaries,
heirs, fiduciaries, donees, pledgees, or other transferees, as if such parties
were a party to this Agreement.
Section 2. DEMAND REGISTRATION RIGHTS
(a) Request for Registration. Following the second anniversary of the
Closing, as such term is defined in the Merger Agreement, and prior to the tenth
anniversary of the Closing, upon which date the registration rights set forth in
this Section 2(a) shall expire, a Stockholder or Stockholders holding in the
aggregate at least 50% of the Merger Shares outstanding at the time a request is
made pursuant to this Section 2(a) shall have the right on two occasions to
request Agri-Nutrition, in writing, to effect the registration of Merger Shares
having an aggregate offering price of at least $100,000 (based on the closing
price of the Common Stock of Agri-Nutrition listed on the NASDAQ National Market
or such other exchange or market on which the Agri-Nutrition's Shares may be
listed on the day prior to the date of the request to register such Merger
Shares) on Form S-3 (or, if Form S-3 is not available, on such other form as may
be appropriate under the federal securities laws) with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Securities Act"). Such written request shall specify the number
of Merger Shares to be registered and the intended method of disposition of such
Merger Shares.
(b) Notice to Stockholders. Upon receipt of the written request
referred to in Section 2(a), Agri-Nutrition shall (i) promptly give written
notice of the requested registration to all other Stockholders (including
information regarding the intended method of disposition of the Merger Shares),
who may then elect to participate in such registration, and (ii) as soon as
practicable, use its best efforts to effect the registration on Form S-3 (or
such other appropriate form) of the Merger Shares for which the Stockholders
have requested registration.
(c) Limitations on Rights. If at the time of any request to register
Merger Shares pursuant to this Section 2, Agri-Nutrition is engaged or has plans
to engage within 60
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days of the time of the request in a registered public offering as to which the
Stockholders may include Merger Shares pursuant to Section 3 or is engaged in
any other activity which, in the good faith determination of Agri-Nutrition's
Board of Directors, would be adversely affected by the requested registration,
then Agri-Nutrition may at its option direct that such request be delayed for a
period not in excess of six months from the effective date of such offering or
the date of commencement of such other activity, as the case may be. In such
event, the Stockholders shall be deemed to have withdrawn their request for
registration and such request shall not be counted as a demand registration to
which such Stockholders are entitled pursuant to Section 2(a). Agri-Nutrition
may exercise its option to delay registration of the shares only one time in any
fiscal year.
Notwithstanding any other provisions of this Section 2, Agri-Nutrition
shall not be obligated to register Merger Shares if all of the Merger Shares for
which the Stockholders have requested registration are eligible for sale
pursuant to Rule 144 under the Securities Act without regard to the volume
limitations set forth in Rule 144 and Agri-Nutrition causes its agents promptly
to transfer shares eligible for sale under Rule 144.
(d) Underwriting. In the event the Stockholders requesting registration
intend to distribute the Merger Shares by means of an underwriting, the right of
any Stockholders to be included in such registration shall be conditioned upon
such Stockholders' agreement to pay their pro rata share of the underwriting
discounts and commissions.
Agri-Nutrition and the Stockholders holding the Merger Shares to be
registered shall enter into an underwriting agreement with an underwriter
selected by the Stockholders and approved by the Board of Directors of
Agri-Nutrition requesting the registration under Section 2(a). Such agreement
shall contain representations, warranties, and covenants and other terms as are
customarily contained in agreements of that type and shall be reasonably
satisfactory in form and substance to Agri-Nutrition and the Stockholders
holding the Merger Shares being registered.
Notwithstanding any other provisions of this Section 2, if the managing
underwriter advises Agri-Nutrition in writing that marketing factors require a
reduction in the number of Merger Shares to be underwritten, then Agri-Nutrition
shall so advise the Stockholders holding the Merger Shares to be registered, and
the number of Merger Shares that are included in the registration statement
shall be reduced in accordance with such requirements pro rata among
Stockholders in accordance with the number of Merger Shares being registered.
Section 3. PIGGYBACK REGISTRATION RIGHTS
(a) Request for Registration. After the second anniversary of the
Closing, and prior to the tenth anniversary of the Closing, if Agri-Nutrition
proposes to register any of its securities under the Securities Act on Form X-0,
X-0 or S-3 (or any equivalent general registration form then in effect),
Agri-Nutrition shall: (i) promptly give written notice of such registration to
each Stockholder, and (ii) include in such registration the Merger
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Shares specified in any written requests received from such Stockholders within
30 days following delivery of such notice.
(b) Limitation on Rights. Notwithstanding any other provisions of this
Section 3, if Agri-Nutrition's managing underwriter advises Agri-Nutrition in
writing that the number of Merger Shares requested to be included in the
registration statement exceeds the number of such Merger Shares that can be sold
in an orderly manner in the offering or that the inclusion of such Merger Shares
would adversely affect the offering, then Agri-Nutrition shall be required to
include only that number of Merger Shares that would not exceed such number or
have such adverse effect. In the event that it is necessary to reduce the number
of Merger Shares to be included in the registration statement, such reduction
shall be made pro rata among Stockholders in accordance with the number of
Merger Shares being registered.
Notwithstanding any other provisions of this Section 3, Agri-Nutrition
shall have the right at any time after it has given notice of the filing of a
registration pursuant to this Section 3 to elect not to proceed with such
registration.
Notwithstanding any other provisions of this Section 3, Agri-Nutrition
shall not be obligated to register Merger Shares if such Merger Shares are
eligible for sale pursuant to Rule 144 under the Securities Act without regard
to the volume limitations set forth in Rule 144.
Section 4. INFORMATION PROVIDED BY STOCKHOLDERS
Any Stockholder whose Merger Shares are included in any registration
statement hereunder shall furnish to Agri-Nutrition such information regarding
such Stockholder and the intended method of distribution of the Merger Shares as
Agri-Nutrition may request in writing.
Section 5. EXPENSES OF REGISTRATION
All fees and expenses in connection with any registration hereunder,
including registration fees, printing expenses, blue sky fees and expenses, and
Agri-Nutrition's legal and accounting fees and expenses, shall be paid by
Agri-Nutrition, except as hereinafter provided. All selling expenses, including
underwriting discounts, selling commissions, and stock transfer taxes in
connection with any registration, and all fees and expenses (but not including
the expenses described in the first sentence of this Section 5) of counsel and
other advisors to the Stockholders, shall be borne by the Stockholders pro rata
in accordance with the number of Merger Shares being registered.
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Section 6. REGISTRATION PROCEDURES
Whenever Agri-Nutrition shall be required to register any Merger Shares
hereunder, Agri-Nutrition shall, as expeditiously as possible:
(a) Filings. Prepare and file with the Commission, and use its best
efforts to cause to be declared and remain continuously effective for a period
of time not exceeding 120 days, the registration statement and any amendments
and supplements thereto and the prospectus used in connection therewith as may
be necessary to keep the registration statement current and to comply with the
provisions of the Securities Act with respect to the disposition of Merger
Shares covered by the registration statement; provided that in the event the
registration statement is filed on Form S-3, Agri-Nutrition shall use its best
efforts to cause such registration statement to remain continuously effective
for a period of time not exceeding two years.
Notwithstanding the other provisions of this Section 6(a), while any
such registration statement remains in effect, Agri-Nutrition may at any time
deliver to the Stockholders written notice to the effect that sales may not be
effected under the registration statement for a period of time (the "Blackout
Period") because of the existence of material facts not disclosed or
incorporated by reference in such registration statement and in the prospectus
included therein. Upon receipt of such of any such notice, each of the
Stockholders shall refrain from selling any shares of Agri-Nutrition Common
Stock under such registration statement until they have received notice from
Agri-Nutrition to the effect that such sales may then be effected. In no event
shall the Blackout Period be greater than any similar period of time during
which Agri-Nutrition restricts any of its executive officers, directors and
principal shareholders from effecting sales in Agri-Nutrition Common Stock
because of the existence of material facts not disclosed or incorporated by
reference in any then-effective registration statement and in the prospectus
included therein or otherwise not publicly disclosed. Following any public
disclosure of such material facts, Agri-Nutrition promptly shall update such
registration statement and the prospectus included therein in order to permit
the shares of Agri-Nutrition Common Stock to be sold, and the duration of
effectiveness of the registration statement hereunder shall be extended by the
aggregate number of days during which the Stockholders were instructed to
refrain from selling shares of Agri-Nutrition Common Stock during all Blackout
Periods.
(b) Copies of Documents. Furnish to each Stockholder participating in
the offering and each underwriter, if any, copies of the registration statement
and each amendment and supplement thereto and copies of the prospectus included
therein (including each summary, preliminary, final, amended or supplemented
prospectus) in conformity with the requirements of the Securities Act and copies
of such other documents as each such Stockholder and underwriters, if any, shall
reasonably require in order to facilitate the disposition of the Merger Shares,
but only while Agri-Nutrition is required under the provisions hereof to keep
the registration statement current.
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(c) Blue Sky Compliance. Use its best efforts to register or qualify
the Merger Shares covered by the registration statement under such other
securities or blue sky laws of such jurisdictions in the United States as
Agri-Nutrition or the managing underwriter, if any, determine is reasonably
necessary to enable each participating Stockholder to consummate the disposition
of the Merger Shares owned by it in compliance with the laws of such
jurisdiction; provided, however, that in no event shall Agri-Nutrition be
required to qualify to do business as a foreign corporation in any jurisdiction
where it is not so qualified, to conform the composition of its assets at the
time to the securities or blue sky laws of any jurisdiction, or to subject
itself to taxation or to any suit (other than suits arising in connection with
the sale of Merger Shares) in any jurisdiction where it has not theretofore done
so.
(d) Experts. Furnish to each underwriter participating in the offering
(i) an opinion of counsel to Agri-Nutrition dated the effective date of such
registration statement and the date of the closing under the underwriting
agreement, and (ii) a "cold comfort" letter dated the effective date of such
registration statement and the date of the closing under the underwriting
agreement signed by the independent public accountants who have issued a report
on Agri-Nutrition's financial statements included in such registration
statement, in each case covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and, in the
case of such accountant's letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountant's letters delivered to underwriters in underwritten
public offerings of securities.
(e) Material Information. Immediately (i) notify each Stockholder
participating in the offering and the managing underwriter, if any, of any event
that results in the prospectus included in the registration statement, as then
in effect, including any untrue statement of a material fact or omitting to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, and (ii) amend or supplant such prospectus as may be necessary so
that such prospectus shall not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances then existing, not
misleading, and so that such prospectus will comply with applicable law.
(f) Other Compliance With Law. Otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission.
(g) Transfer Agent and Registrar. Provide a transfer agent and
registrar (which may be the same entity) for the Merger Shares.
Section 7. SUBORDINATION OF REGISTRATION RIGHTS
Notwithstanding the other provisions of this Agreement, the
registration rights of the Stockholders set forth in this Agreement shall be
subordinate in all respects to the
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registration rights of holders of Agri-Nutrition securities that were granted to
such security holders by Agri-Nutrition prior to the date of this Agreement.
Section 8. LOCKUP AGREEMENT
In consideration for Agri-Nutrition agreeing to its obligations under
this Agreement, each Stockholder agrees, in connection with any registration of
the Merger Shares, upon request of Agri-Nutrition or the underwriters managing
any underwritten offering of Agri-Nutrition's securities, not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any Merger Shares (other than those included in the registration and those
sold in a private transaction in which the purchaser agrees to be bound by the
terms of this agreement) without the prior written consent of Agri-Nutrition or
the underwriters, as the case may be, for such period of time (not to exceed 90
days) from the effective date of such registration statement as Agri-Nutrition
or the underwriters may specify. The Stockholders agree that Agri-Nutrition may
instruct its transfer agent to place stop-transfer notation in its records to
enforce the provisions of this Section 8.
Section 9. INDEMNIFICATION
(a) Agri-Nutrition will indemnify each Stockholder whose Merger Shares
are included in any registration hereunder and each of its officers, directors,
and partners and each person controlling such Stockholders within the meaning of
Section 15 of the Securities Act, and each underwriter, if any, and each of its
officers, directors and partners, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all expenses,
claims, losses, damages, and liabilities (or actions in respect thereof)
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement or prospectus, or any amendment or supplement thereto, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by
Agri-Nutrition of any rule or regulation promulgated under the Securities Act
applicable to Agri-Nutrition and will reimburse each such Stockholder, each of
its officers, directors, and partners, and each person controlling such
Stockholder, each such underwriter, each of its officers, directors, and
partners and each person who controls any such underwriter, for any legal
expenses (provided that there shall be no more than one counsel for all
Stockholders) and any other expenses incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability, or action,
provided that Agri-Nutrition will not be liable in any such case to the extent
that any such claim, loss, damage, liability, or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished to
Agri-Nutrition by such Stockholder or underwriter for use therein.
(b) Each Stockholder whose Merger Shares are included in such
registration will indemnify Agri-Nutrition, and each of its directors and
officers, each underwriter, if any,
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and each of its officers, directors, and partners, and each person who controls
Agri-Nutrition or such underwriter within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages, and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement or prospectus, or any amendment or supplement thereto, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statement therein not misleading, and will
reimburse Agri-Nutrition and such underwriters, directors, officers, partners,
or control persons for any legal expenses (provided that there shall be no more
that one counsel for all such persons) for any other expenses reasonably
incurred in connection with investigation or defending any such claim, loss,
damage, liability, or action, in each case to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission)
resulted from Agri-Nutrition's reliance upon information furnished by such
Stockholder.
(c) Each party entitled to indemnification under this Section 9 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any pending or threatened 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 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 unreasonably withheld), and the Indemnified Party may participate in such
defense (which participation shall be at such party's expense unless there are,
in the opinion of counsel for such party, actual or potential differing
interests between such party and the Indemnifying Party), and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, except to the extent that the Indemnifying Party's ability to defend
against such claim or litigation is substantially impaired as a result of such
failure to give notice.
Section 10. GENERAL
(a) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to Agri-Nutrition:
Agri-Nutrition Group Limited
Riverport Executive Center II
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
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with a copy to:
Xxxx Xxxxx & Xxxxxx
Watergate, Suite 1000
000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
If to a Stockholder, at his or her address as set forth on
Exhibit A.
Any party may change its address to which notices or other communications are to
be sent by giving written notice of any such change in the manner provided
herein for giving notice. Notices provided in accordance with this Section 10
shall be deemed delivered upon personal delivery or two business days after
deposit in the mail.
(b) Assignment. The Stockholders may not assign any of the
rights granted to them pursuant to this Agreement without the written consent of
Agri-Nutrition.
(c) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
(d) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of Agri-Nutrition and each of the
Stockholders. No waivers of or exceptions to any term, condition or provision of
this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
(e) Counterparts. This Agreement may be executed in one or
more counterparts (including by facsimile signature), each of which shall be
deemed to be an original, but all of which shall be one and the same document.
(f) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not effect the validity or enforceability of
any other provision of this Agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to any conflicts of law principles.
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IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the date first set forth above.
STOCKHOLDERS AGRI-NUTRITION GROUP LIMITED
____________________ By:
Xxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx
President
--------------------
Xxx X. Xxxxxxxxxx
--------------------
Xxxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxxx X. Xxxx
--------------------
Xxxxxxxx X. Xxxxx
00
Exhibit A
A copy of any notice to be provided to the Stockholders under the
Agreement shall be sent to each Stockholder at the following addresses:
Xxxxx X. Xxxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxx X. Xxxxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxxx
00X000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
\
Xxxxxxx X. Xxxx
00000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxx X. Xxxxx
0000 Xxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
with a copy to:
Huck, Bouma, Xxxxxx, Xxxxxxxx & Xxxxxxxx, P.C.
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Xx., Esq.
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