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EXHIBIT 4.4
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this "Agreement"), dated as of [_____ ___], 1998,
between XXXXXXXX LABORATORIES INTERNATIONAL, INC., a Delaware corporation
("GLII"), and XXXXXXXX MICRO SCIENCE INTERNATIONAL, INC., a Delaware corporation
(the "Company").
WHEREAS, GLII owns all of the currently outstanding Class B Common
Stock, $.01 par value per share ("Class B Common Stock") of the Company (which
is the only class of the Company's capital stock currently outstanding).
WHEREAS, the Company, with the consent of GLII, has determined to offer
to the public (the "Public Offering") up to [__________] shares of Class A
Common Stock, $.01 par value per share, of the Company ("Class A Common Stock"
and, together with the Class B Common Stock, the "Common Stock").
WHEREAS, in consideration for the consent of GLII to the Public Offering
by the Company (including the agreement of GLII to indemnify the underwriters
for the Public Offering), the Company has, among other things, agreed to grant
to GLII certain registration rights applicable to Registrable Securities (as
defined below) held by GLII, and agreed to certain limitations on the use of the
Xxxxxxxx name.
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth the terms of such registration rights and name use limitations.
NOW, THEREFORE, upon the premises and the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following
initially capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any other person who,
directly or indirectly, is in control of, is controlled by or is under common
control with the former person; and "control" (including the terms
"controlling," "controlled by," and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
(b) "Company Securities" has the meaning set forth in Section 3 hereof.
(c) "Exchangeable Securities" has the meaning set forth in Section 6 of
this Agreement.
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(d) "Fair Market Value" means, with respect to any security, (i) if the
security is listed on a national securities exchange or authorized for quotation
on a national market quotation system, the closing price, regular way, of the
security on such exchange or quotation system, as the case may be, or if no such
reported sale of the security shall have occurred on such date, on the next
preceding date on which there was such a reported sale, or (ii) if the security
is not listed for trading on a national securities exchange or authorized for
quotation on a national market quotation system, the average of the closing bid
and asked prices as reported by the National Association of Securities Dealers
Automated Quotation System or such other reputable entity or system engaged in
the regular reporting of securities prices and on which such prices for such
security are reported or, if no such prices shall have been reported for such
date, on the next preceding date for which such prices were so reported, or
(iii) if the security is not publicly traded, the fair market value of such
security as determined by a nationally recognized investment banking or
appraisal firm mutually acceptable to the Company and the Holders, the fair
market value of whose Registrable Securities is to be determined; provided that,
for purposes of Section 2(a)(iii)(C), the Fair Market Value of Class B Common
Stock shall equal the Fair Market Value of the shares of Class A Common Stock
into which such shares of Class B Common Stock are convertible.
(e) "Holder" means GLII or any Qualifying Permitted Transferee.
(f) "Initiating Holders" has the meaning set forth in Section 3 of this
Agreement.
(g) "Other Holders" has the meaning set forth in Section 3 hereof.
(h) "Other Securities" has the meaning set forth in Section 3 hereof.
(i) "Other Voting Securities" means any options, rights, warrants or
other securities convertible into or exchangeable for Voting Stock of the
Company.
(j) "Permitted Transferee" has the meaning set forth in Section 11
hereof.
(k) "Person" means any individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, or other entity of whatever nature.
(l) "Registrable Securities" means (i) all shares of Class B Common
Stock owned on the date hereof by GLII and all shares of Class A Common Stock
issuable upon conversion of Class B Common Stock owned on the date hereof by
GLII, (ii) any stock or other securities into which or for which such Class A
Common Stock or Class B Common Stock may hereafter be changed, converted or
exchanged, and (iii) any other securities issued to holders of such Common Stock
(or such stock or other securities into which or for which such Common Stock are
so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, merger, consolidation or similar
transaction or event, provided that any such securities shall cease to be
Registrable Securities when such securities are transferred in any manner to a
person who is not a Permitted Transferee.
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(m) "Registration Expenses" means all out-of-pocket expenses incurred in
connection with any registration of Registrable Securities pursuant to this
Agreement including, without limitation, the following: (i) SEC filing fees;
(ii) the fees, disbursements and expenses of the Company's counsel(s) and
accountants in connection with the registration of the Registrable Securities to
be disposed of; (iii) 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; (iv) the cost of printing
or producing any underwriting agreement, agreement among underwriters, agreement
between syndicates, selling agreement, blue sky or legal investment memorandum
or other document in connection with the offering, sale or delivery of the
Registrable Securities to be disposed of; (v) all expenses in connection with
the qualification of the Registrable Securities to be disposed of for offering
and sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualification and the
preparation of any blue sky and legal investment surveys; (vi) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Registrable Securities
to be disposed of; (vii) transfer agents', depositaries' and registrars' fees
and the fees of any other agent appointed in connection with such offering;
(viii) all security engraving and security printing expenses, (ix) all fees and
expenses payable in connection with the listing of the Registrable Securities on
any securities exchange or inter-dealer quotation system; and (x) any one-time
payment for directors and officers insurance directly related to such offering,
provided the insurer provides a separate statement for such payment.
(n) "Rule 144" means Rule 144 promulgated under the Securities Act, or
any successor rule to similar effect.
(o) "SEC" means the United States Securities and Exchange Commission.
(p) "Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
(q) "Selling Expenses" means all underwriting discounts and commissions,
selling concessions and stock transfer taxes applicable to the sale by the
Holders of Registrable Securities pursuant to this Agreement and all fees and
disbursements of any legal counsel, investment banker, accountant or other
professional advisor retained by a Holder.
(r) "Selling Holder" has the meaning set forth in Section 5 hereof.
(s) "Transactional Deferral" has the meaning set forth in Section 2 of
this Agreement.
(t) "Voting Stock" means shares of the Company's capital stock having
the power under ordinary circumstances (and not merely upon the happening of a
contingency) to vote in the election of directors of the Company.
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2. Demand Registration.
(a) At any time prior to such time as the rights under this Section 2
terminate with respect to a Holder as provided in Section 2(e) hereof, upon
written notice from such Holder in the manner set forth in Section 12(h) hereof
requesting that the Company effect the registration under the Securities Act of
any or all of the Registrable Securities held by such Holder, which notice shall
specify the intended method or methods of disposition of such Registrable
Securities, the Company shall use its best efforts to effect, in the manner set
forth in Section 5, the registration under the Securities Act of such
Registrable Securities for disposition in accordance with the intended method or
methods of disposition stated in such request (including in an offering on a
delayed or continuous basis under Rule 415, or any successor rule to similar
effect, promulgated under the Securities Act, if (x) the Company is then
eligible to register such Registrable Securities on Form S-3 (or a successor
form) for such offering and (y) the Company consents to such an offering, except
that no consent of the Company will be required if the contemplated offering on
a delayed or continuous basis under Rule 415 is the offering of Registrable
Securities upon the exercise, exchange or conversion of Exchangeable Securities
as contemplated by Section 6 hereof), provided that:
(i) if, within 5 business days of receipt by the Company of a
registration request pursuant to this Section 2(a), the Holder or Holders
making such request are advised in writing that the Company has in good
faith commenced the preparation of a registration statement for an
underwritten public offering prior to receipt of the notice requesting
registration pursuant to this Section 2(a) and the managing underwriter of
the proposed offering has determined, and set forth in writing to said
Holder or Holders, that in such firm's good faith opinion, a registration
at the time and on the terms requested would materially and adversely
affect the offering that is contemplated by the Company, the Company shall
not be required to effect a registration pursuant to this Section 2(a) (a
"Transactional Deferral") until the earliest of (A) the abandonment of such
offering by the Company, (B) 60 days after receipt by the Holder or Holders
requesting registration of the managing underwriter's written opinion
referred to above in this clause (i), unless the registration statement for
such offering has become effective and such offering has commenced on or
prior to such 60th day, and (C) if the registration statement for such
offering has become effective and such offering has commenced on or prior
to such 60th day, the day on which the restrictions on the Holders
contained in Section 10 hereof lapse, provided, however, that the Company
shall not be permitted to delay a requested registration in reliance on
this clause (i) more than once in any 12-month period;
(ii) if, while a registration request is pending pursuant to this
Section 2(a), the Company is advised in writing by its legal counsel that
the filing of a registration statement would require the disclosure of
material information that the Company has a bona fide business purpose for
preserving as confidential and the disclosure of which the Company
determines reasonably and in good faith would have a material adverse
effect on the Company, the Company shall not be required to effect a
registration pursuant to this Section 2(a) until the earlier of (A) the
date upon which such material information is
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otherwise disclosed to the public or ceases to be material and (B) 90 days after
the Company makes such determination;
(iii) the Company shall not be obligated to file a registration
statement relating to a registration request pursuant to this Section 2:
(A) prior to the first anniversary of the closing of the Public Offering,
(B) within a period of 365 calendar days after the effective date of any
other registration statement of the Company demanded pursuant to this
Section 2(a), (C) if such registration request is for a number of
Registrable Securities having a Fair Market Value on the business day
immediately preceding the date of such registration request of less than
$2,500,000, or (D) if such registration request is for Registrable
Securities which consist in whole or in part of shares of Class B Common
Stock, unless such request is accompanied by an opinion of counsel for the
Holder submitting the request, which opinion is satisfactory in form and
substance to the Board of Directors of the Company, to the effect that: (x)
the sale or other transaction in connection with which registration of such
shares is requested will not result in their automatic conversion to Class
A Common Stock pursuant to the Amended and Restated Certificate of
Incorporation of the Company and (y) registration of such shares in
connection with such sale or other transaction is required by the
Securities Act; and
(iv) the Company shall not be obligated to file a registration
statement relating to a registration request pursuant to this Section 2:
(A) in the case of a registration request by GLII or any Permitted
Transferee that has acquired, in the transaction in which it became a
Permitted Transferee, at least a majority of the then issued and
outstanding Voting Stock, on more than three occasions after such time as
GLII or such Permitted Transferee, as the case may be, owns less than a
majority of the voting power of the outstanding capital stock of the
Company (it being acknowledged that so long as GLII or such Permitted
Transferee owns a majority of the voting power of the outstanding capital
stock of the Company, there shall be no limit to the number of occasions on
which GLII or such Permitted Transferee may exercise such rights), or (B)
in the case of a Holder other than GLII or a Permitted Transferee described
in clause (A) above, on more than the number of occasions permitted such
Holder in accordance with Section 11 hereof.
(b) Notwithstanding any other provision of this Agreement to the
contrary:
(i) a registration requested by a Holder pursuant to this Section 2
shall not be deemed to have been effected (and, therefore, not requested
for purposes of Section 2(a)), (A) unless the registration statement filed
in connection therewith has become effective, (B) if after such
registration statement has become effective, it becomes subject to any stop
order, or there is issued an injunction or other order or decree of the SEC
or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder, which injunction, order or
decree prohibits or otherwise materially and adversely affects the offer
and sale of the Registrable Securities so registered prior to the
completion of the distribution thereof in
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accordance with the plan of distribution set forth in the registration
statement or (C) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied by reason of some act, misrepresentation or
omission by the Company and are not waived by the purchasers or
underwriters; and
(ii) nothing herein shall modify a Holder's obligation to pay
Registration Expenses, in accordance with Section 4 hereof, that are
incurred in connection with any withdrawn registration requested by such
Holder.
(c) In the event that any registration pursuant to this Section 2 shall
involve, in whole or in part, an underwritten offering, Holders owning at least
50.1% of the Fair Market Value of the Registrable Securities to be registered in
connection with such offering shall have the right to designate an underwriter
reasonably satisfactory to the Company as the lead managing underwriter of such
underwritten offering.
(d) The Company shall have the right to cause the registration of
additional shares of Class A Common Stock for sale for the account of any person
(including the Company) in any registration of Registrable Securities requested
by any Holder pursuant to Section 2(a), but only to the extent the managing
underwriter or other independent marketing agent for such offering (if any), in
such case selected by the Holder which has tendered the registration request,
determines that, in its opinion, the additional shares of Class A Common Stock
proposed to be sold will not materially and adversely affect the offering and
sale of the Registrable Securities to be registered in accordance with the
intended method or methods of disposition then contemplated by such Holder. The
rights of a Holder to cause the registration of additional Registrable
Securities held by such Holder in any registration of Registrable Securities
requested by another Holder pursuant to Section 2(a) shall be governed by the
agreement of the Holders with respect thereto as provided in Section 11(a).
(e) The Company shall not be obligated to file a registration statement
relating to a registration request by a Holder pursuant to this Section 2 from
and after such time as such Holder first owns Registrable Securities
representing (assuming for this purpose the conversion, exchange or exercise of
all Registrable Securities then owned by such Holder that are convertible into
or exercisable or exchangeable for Voting Stock of the Company) less than 10% of
the then issued and outstanding Voting Stock of the Company.
3. Piggyback Registration. If the Company at any time proposes to register
any of its Common Stock or any other of its securities (collectively, "Other
Securities") under the Securities Act, whether or not for sale for its own
account, in a manner which would permit registration of Registrable Securities
for sale for cash to the public under the Securities Act, it will each such time
give prompt written notice to each Holder of its intention to do so at least 10
business days prior to the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer each such Holder the
opportunity to include in such registration statement such number of Registrable
Securities as each such Holder may request. Upon the written request of any
such Holder made within 5 business days after the receipt of the
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Company's notice (which request shall specify the number of Registrable
Securities intended to be disposed of and the intended method of disposition
thereof), the Company shall effect, in the manner set forth in Section 5, in
connection with the registration of the Other Securities, the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register, to the extent required to permit the disposition (in
accordance with such intended methods thereof) of the Registrable Securities so
requested to be registered, provided that:
(a) if at any time after giving written notice of its intention to
register any securities and prior to the effective date of such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to the Holders 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 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 for the same period as the delay in registering
such other securities, but, in either such case, without prejudice to the rights
of the Holders under Section 2;
(b) (i) if the registration referred to in the first sentence of
this Section 3 is to be a registration in connection with an underwritten
offering on behalf of either the Company or holders of securities (other
than Registrable Securities) of the Company ("Other Holders"), and the
managing underwriter for such offering advises the Company in writing that,
in such firm's opinion, such offering would be materially and adversely
affected by the inclusion therein of Registrable Securities requested to be
included therein because such Registrable Securities are not of the same
type, class or series as the securities to be offered and sold in such
offering on behalf of the Company and/or the Other Holders, the Company may
exclude all such Registrable Securities from such offering provided that
the Holder is permitted to substitute for the Registrable Securities so
excluded an equal number of Registrable Securities of the same type, class
or series as those being registered by the Company or the Other Holders, if
and to the extent such Holder owns Registrable Securities of such type,
class or series or can acquire Registrable Securities of such type, class
or series upon exercise or conversion of other Registrable Securities; and
(ii) if the registration referred to in the first sentence of this
Section 3 is to be a registration in connection with an underwritten
primary offering on behalf of the Company, and the managing underwriter for
such offering advises the Company in writing that, in such firm's opinion,
such offering would be materially and adversely affected by the inclusion
therein of the Registrable Securities requested to be included therein
because the number or principal amount of such Registrable Securities,
considered together with the number or principal amount of securities
proposed to be offered by the Company, exceeds the aggregate number or
principal amount of securities which, in such firm's opinion, can be sold
in such offering without materially and adversely affecting the offering,
the Company shall include in such registration: (1) first,
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all securities the Company proposes to sell for its own account ("Company
Securities") and (2) second, the number or principal amount of Registrable
Securities and securities, if any, requested to be included therein by the
Holder and by Other Holders in excess of the number or principal amount of
Company Securities which, in the opinion of such underwriter, can be so
sold without materially and adversely affecting such offering (allocated
pro rata among the Holders and the Other Holders on the basis of the number
of securities (including Registrable Securities) requested to be included
therein by each Holder and each such Other Holder); and
(iii) if the registration referred to in the first sentence of this
Section 3 is to be a registration in connection with an underwritten
secondary offering on behalf of Other Holders made pursuant to demand
registration rights granted by the Company to such Other Holders (the
"Initiating Holders"), and the managing underwriter for such offering
advises the Company in writing that in such firm's opinion, such offering
would be materially and adversely affected by the inclusion therein of the
Registrable Securities requested to be included therein because the number
or principal amount of such Registrable Securities, considered together
with the number or principal amount of securities proposed to be offered by
the Initiating Holders, exceeds the aggregate number or principal amount of
securities which, in such firm's opinion, can be sold in such offering
without materially and adversely affecting the offering, the Company shall
include in such registration; (1) first, to the extent the registration
rights granted to an Initiating Holder permit it to exclude other
securities from its registration on substantially the same basis as that
set forth in the first sentence of Section 2(d) hereof, all securities any
such Initiating Holder proposes to sell for its own account, and (2)
second, the number or principal amount of additional securities (including
Registrable Securities) that such managing underwriter advises can be sold
without materially and adversely affecting such offering, allocated pro
rata among any Other Holders to which clause (1) does not apply and the
Holders on the basis of the number of securities (including Registrable
Securities) requested to be included therein by each Holder and each such
Other Holder;
(c) the Company shall not be required to effect any registration of
Registrable Securities under this Section 3 incidental to the registration of
any of its securities in connection with (i) stock option or other executive or
employee benefit or compensation plans of the Company, or (ii) acquisitions of
assets or businesses by the Company;
(d) no registration of Registrable Securities effected under this
Section 3 shall relieve the Company of its obligation to effect any registration
of Registrable Securities required of the Company pursuant to Section 2 hereof;
and
(e) the Company shall not be required to effect any registration of
Registrable Securities under this Section for any Holder from and after such
time as such Holder is able to dispose of all of its Registrable Securities
within a three-month period pursuant to Rule 144.
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4. Expenses. The Holders, on the one hand, by accepting Registrable
Securities, and the Company, on the other hand, each agree to pay one-half of
all Registration Expenses with respect to a registration pursuant to Section 2
hereof, provided that to the extent a registration pursuant to Section 2
includes the registration of shares for the Company or another person in
connection therewith, the Company or such other person shall pay all incremental
expenses of including such additional shares in the registration. The Holders'
portion of any Registration Expenses shall be allocated among them pro rata
based on each Holder's number or principal amount of Registrable Securities
included in such offering. The Company agrees to pay all Registration Expenses
with respect to a registration pursuant to Section 3 hereof. All Registration
Expenses to be paid by the Holder shall be paid within 30 days of the delivery
of a statement from the Company, such statements to be delivered not more
frequently than once every 60 days. All internal expenses of the Company or a
Holder in connection with any offering pursuant to this Agreement, including,
without limitation, the salaries and expenses of officers and employees,
including in-house attorneys, shall be borne by the party incurring them. All
Selling Expenses of the Holders participating in any registration pursuant to
this Agreement shall be borne by such Holders pro rata based on each Holder's
number of Registrable Securities included in such registration.
5. Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2 or 3 hereof, the
Company, subject to Section 4 hereof, shall:
(a) use its best efforts to prepare and file a registration statement
under the Securities Act relating to the Registrable Securities to be offered as
soon as practicable, but in no event later than 45 days (60 days if the
applicable registration form is other than Form S-3) after the date notice is
given, and use its best efforts to cause the same to become effective within 90
days after the date notice is given (120 days if the applicable registration
form is other than Form S-3);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective with respect to
the disposition of all Registrable Securities until the earlier of (i) such time
as all of such Registrable Securities have been disposed of in accordance with
the intended methods of disposition set forth in such registration statement and
(ii) the expiration of nine months after such registration statement becomes
effective; provided, that such nine-month period shall be extended for such
number of days that equals the number of days elapsing from (A) the date the
written notice contemplated by paragraph (f) below is given by the Company to
(B) the date on which the Company delivers to the Holders of Registrable
Securities the supplement or amendment contemplated by paragraph (f) below; and
provided further, that in the case of a registration to permit the exercise or
exchange of Exchangeable Securities for, or the conversion of Exchangeable
Securities into, Registrable Securities, the time limitation contained in clause
(ii) above shall be disregarded to the extent that, in the written opinion of
counsel to the Holder of such Registrable Securities, delivered to the Company,
such Registrable Securities are required to be covered by an effective
registration statement under the Securities Act at the time such Registrable
Securities are issued
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upon exercise, exchange or conversion of Registrable Securities in order for
such Registrable Securities to be freely tradeable by any person who is not an
Affiliate of the Company or GLII;
(c) furnish to the Holders and to any underwriter of such Registrable
Securities such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as the Holders or such underwriter may reasonably request in order to
facilitate the public sale of the Registrable Securities, and a copy of any and
all transmittal letters or other correspondence to, or received from, the SEC or
any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering;
(d) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions (domestic or foreign) as the Holders or any
underwriter of such Registrable Securities shall request, and use its best
efforts to obtain all appropriate registrations, permits and consents required
in connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Holders or any such underwriter to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement; provided that the Company shall not for
any such purpose be required to register or qualify generally to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) (i) use its best efforts to furnish an opinion of counsel for
the Company addressed to the underwriters and each Holder of Registrable
Securities included in such registration (each a "Selling Holder") and dated the
date of the closing under the underwriting agreement (if any) (or if such
offering is not underwritten, dated the effective date of the registration
statement), and (ii) use its best efforts to furnish a "cold comfort" letter
addressed to each Selling Holder, if permissible under applicable accounting
practices, and signed by the independent public accountants who have audited the
Company's financial statements included in such registration statement, in each
such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(f) immediately notify the Selling Holders in writing (i) at any time
when a prospectus relating to a registration pursuant to Section 2 or 3 hereof
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make
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the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) of any request by the SEC or any other regulatory
body or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Selling Holders, subject to
Section 4 hereof, prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such 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
are made, not misleading;
(g) use its best efforts to list all such Registrable Securities
which consist of Class A Common Stock covered by such registration on each
securities exchange and inter-dealer quotation system on which the Class A
Common Stock is then listed, with expenses in connection therewith (not
including any future periodic assessments or fees for such additional listing,
which shall be paid by the Company) to be paid in accordance with Section 4
hereof;
(h) to the extent reasonably requested by the lead or managing
underwriters in connection with any underwritten offering, send appropriate
officers of the Company to attend any "road shows" or other customary marketing
efforts scheduled in connection with any such registration; and
(i) furnish for delivery in connection with the closing of any
offering of Registrable Securities unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters.
6. Exchangeable Securities. GLII shall be entitled, if it intends to
offer any options, rights, warrants or other securities issued or to be issued
by it or any other person that are exercisable or exchangeable for or
convertible into any Registrable Securities ("Exchangeable Securities"), to
register the Registrable Securities underlying such options, rights, warrants or
other securities pursuant to (and subject to the limitations contained in)
Section 2 of this Agreement.
7. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section 8 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 5(e) hereof. The Selling Holders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement and the representations and
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warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by the Selling Holders on whose behalf the
Registrable Securities are to be distributed as are customarily contained in
underwriting agreements with respect to secondary distributions. The Selling
Holders may require that any additional securities included in an offering
proposed by a Holder be included on the same terms and conditions as the
Registrable Securities that are included therein.
(b) In the event that any registration pursuant to Section 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
the Registrable Securities requested to be registered pursuant to Section 3 to
be included in such underwritten offering on the same terms and conditions as
shall be applicable to the other securities being sold through underwriters
under such registration. If requested by the underwriters for such underwritten
offering, the Selling Holders on whose behalf the Registrable Securities are to
be distributed shall enter into an underwriting agreement with such
underwriters, such agreement to contain such representations and warranties by
the Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution substantially to the
effect and to the extent provided in Section 8 hereof. Such underwriting
agreement shall also contain such representations and warranties by the Company
and such other person or entity for whose account securities are being sold in
such offering as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, the Company shall give the Holders of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such Holders and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act, subject to the execution by such Holders and such
underwriters of appropriate confidentiality agreements.
8. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company agrees to indemnify and hold harmless
each Holder, its officers and directors, each underwriter of Registrable
Securities so offered and each person, if any, who controls any of the foregoing
persons within the meaning of the Securities Act, from and against any and all
claims, liabilities, losses, damages, expenses and judgments, joint or several,
to which they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation commenced
or threatened, and shall promptly reimburse them, as and when incurred, for any
reasonable legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such
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losses, claims, damages, liabilities or actions shall arise out of, or shall be
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
in any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company shall not be liable to a particular Holder or underwriter in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement, or any omission, if such statement or omission shall have been made
in reliance upon and in conformity with information (i) relating to such Holder
and furnished to the Company in writing by or on behalf of such Holder or (ii)
furnished to the Company in writing by or on behalf of an underwriter, in either
case specifically for use in the preparation of the registration statement (or
in any preliminary or final prospectus included therein) or any amendment
thereof or supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of a Holder and
shall survive the transfer of such securities. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to each Holder, any of such Holder's directors or officers, underwriters of the
Registrable Securities or any controlling person of the foregoing; provided,
further, that this indemnity does not apply in favor of any underwriter or
person controlling an underwriter (or if a Selling Holder offers Registrable
Securities directly without an underwriter, the Selling Holder) with respect to
any loss, liability, claim, damage or expense arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission in
any preliminary prospectus if a copy of a final prospectus was not sent or given
by or on behalf of an underwriter (or the Selling Holder, if the Selling Holder
offered the Registrable Securities directly without an underwriter) to the
person asserting such loss, claim, damage, liability or action at or prior to
the written confirmation of the sale of the Registrable Securities as required
by the Securities Act and such untrue statement or omission had been corrected
in such final prospectus.
(b) In the case of each offering made pursuant to this Agreement,
each Holder of Registrable Securities included in such offering, by exercising
its registration rights hereunder, agrees to indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing within the meaning of the Securities Act (and if requested by the
underwriters, each underwriter who participates in the offering and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act), from and against any and all claims, liabilities, losses, damages,
expenses and judgments, joint or several, to which they or any of them may
become subject, under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions shall arise
out of, or shall be based upon, any untrue statement or alleged untrue statement
of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment thereof 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 statements
therein not misleading, but in each case only to the extent that such untrue
statement of a material fact is contained in, or such material fact is
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omitted from, information relating to such Holder furnished in writing to the
Company by or on behalf of such Holder specifically for use in the preparation
of such registration statement (or in any preliminary or final prospectus
included therein). The foregoing indemnity is in addition to any liability
which such Holder may otherwise have to the Company, any of its directors or
officers, underwriters of the Registrable Securities or any controlling person
of the foregoing; provided, however, that this indemnity does not apply in favor
of any underwriter or person controlling an underwriter (or if the Company
offers Registrable Securities directly without an underwriter, the Company) with
respect to any loss, liability, claim, damage or expense arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus if a copy of a final prospectus was not
sent or given by or on behalf of an underwriter (or the Company, if the Company
offered the Registrable Securities directly without an underwriter) to the
person asserting such loss, claim, damage, liability or action at or prior to
the written confirmation of the sale of the Registrable Securities as required
by the Securities Act and such untrue statement or omission had been corrected
in such final prospectus.
(c) Each party indemnified under paragraph (a) or (b) of this Section
8 shall, promptly after receipt of notice of any claim or the commencement of
any action against such indemnified party in respect of which indemnity may be
sought, notify the indemnifying party in writing of the claim or the
commencement thereof; provided that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party on account of the indemnity agreement contained in paragraph (a) or (b) of
this Section 8, except to the extent the indemnifying party was materially
prejudiced by such failure, and in no event shall relieve the indemnifying party
from any other liability which it may have to such indemnified party. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that each
indemnified party, its officers and directors, if any, and each person, if any,
who controls such indemnified party within the meaning of the Securities Act,
shall have the right to employ separate counsel reasonably approved by the
indemnifying party to represent them if the named parties to any action
(including any impleaded parties) include both such indemnified party and an
indemnifying party or an Affiliate of an indemnifying party, and such
indemnified party shall have been advised by counsel either (i) that there may
be one or more legal defenses available to such indemnifying party that are
different from or additional to those available to such indemnified party or
such Affiliate or (ii) a conflict may exist between such indemnified party and
such indemnifying party or such Affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties shall be
paid by the indemnifying party. An indemnified party will not enter into any
settlement agreement which is not approved by the indemnifying party, such
approval not to be unreasonably withheld. The indemnifying party may not agree
to any settlement of any such
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claim or action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof with counsel reasonably satisfactory to
the indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or its
counsel in the defense of such claim or action.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to herein, then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, in such proportion as shall be appropriate to
reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party on the one hand
or the indemnified party on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission, but not by reference to any indemnified party's
stock ownership in the Company. In no event, however, shall a Holder be
required to contribute in excess of the amount of the net proceeds received by
such Holder in connection with the sale of Registrable Securities in the
offering which is the subject of such loss, claim, damage or liability. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any legal
or other expenses reasonably incurred by such indemnifying party in connection
with investigating or defending any such action or claim. 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.
9. Rule 144. The Company shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 (or any successor provision). The
Company shall use its best efforts to cause all conditions to the availability
of Form S-3 (or any successor form thereto) under the Securities Act for the
filing of registration statements under this Agreement to be met as soon as
possible after the completion of the Public Offering.
10. Holdback.
(a) GLII and each other Holder agrees by the acquisition of
Registrable Securities, if so required by the managing underwriter of any
offering of equity securities by the
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Company, not to sell, make any short sale of, loan, grant any option for the
purchase of, effect any public sale or distribution of or otherwise dispose of
any Registrable Securities owned by such Holder, during the 30 days prior to and
the 90 days after the registration statement relating to such offering has
become effective (or such shorter period as may be required by the underwriter),
except as part of such underwritten offering. Notwithstanding the foregoing
sentence, each Holder subject to the foregoing sentence shall be entitled to
sell during the foregoing period any securities of the Company owned by it in a
private sale. The Company may legend and may impose stop transfer instructions
on any certificate evidencing Registrable Securities relating to the
restrictions provided for in this Section 10.
(b) The Company agrees, if so required by the managing underwriter of
any offering of Registrable Securities, not to sell, make any short sale of,
loan, grant any option for the purchase of (other than pursuant to employee
benefit plans), effect any public sale or distribution of or otherwise dispose
of any of its equity securities during the 30 days prior to and the 90 days
after any underwritten registration pursuant to Section 2 or 3 hereof has become
effective, except as part of such underwritten registration and except pursuant
to registrations on Form X-0, X-0 or any successor or similar forms thereto.
11. Transfer of Registration Rights.
(a) A Holder may transfer all or any portion of its rights under
this Agreement to any "Permitted Transferee," as defined in Section 4[__] of the
Company's Amended and Restated Certificate of Incorporation, or to any
transferee of Registrable Securities that represent (assuming, for purposes of
making such 20% calculation, the conversion, exchange or exercise of all
Registrable Securities so transferred that are convertible into or exercisable
or exchangeable for the Company's Voting Stock) at least 20% of the then issued
and outstanding Voting Stock of the Company (each, a "Qualifying Permitted
Transferee"); provided, however, that (i) with respect to any transferee of less
than a majority but more than 30% of the then issued and outstanding Voting
Stock, the Company shall not be obligated to file a registration statement
pursuant to a registration request made by such transferee pursuant to Section 2
hereof on more than two occasions, and (ii) with respect to any transferee of
30% or less of the then issued and outstanding Voting Stock, the Company shall
not be obligated to file a registration statement pursuant to a registration
request made by such transferee pursuant to Section 2 hereof on more than one
occasion. The Company shall receive a written notice stating the name and
address of any Permitted Transferee and identifying the number and/or aggregate
principal amount of Registrable Securities with respect to which the rights
under this Agreement are being transferred and the scope of the rights so
transferred, provided that the failure of the Company to receive any such notice
shall not affect the validity of the transfer of rights under this Agreement to
any Permitted Transferee. In connection with any such transfer, the term GLII
as used in this Agreement (other than in Section 2(a)(iv)) shall, where
appropriate to assign the rights and obligations hereunder to such Permitted
Transferee, be deemed to refer to the Permitted Transferee of such Registrable
Securities. GLII and any Permitted Transferees may exercise the registration
rights hereunder in such priority, as among themselves, as they shall agree
among themselves, and the Company shall observe any such agreements of which it
shall have notice as provided above.
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(b) After any such transfer, the transferring Holder shall retain
its rights under this Agreement with respect to all other Registrable Securities
owned by such transferring Holder.
(c) Upon the request of the transferring Holder, the Company shall
execute an agreement with a Permitted Transferee substantially similar to this
Agreement.
12. Termination of Right to Use Xxxxxxxx Name. The Company agrees that,
if at any time Xxxxxxxx Laboratories, Inc., an Illinois corporation that owns
all of the capital stock of GLII ("GLI"), owns, directly or indirectly through
one or more subsidiaries, less than 50% of the voting power of all outstanding
capital stock of the Company, GLI may at any time thereafter demand by written
notice to the Company that within 12 months of the date such notice is received
(i) the Company (A) change its name to a name that does not include the word
"Xxxxxxxx," (B) cease using any trademark or trade name that contains the word
"Xxxxxxxx," and (C) cease using the word "Xxxxxxxx" in any manner in connection
with the Company's business, and (ii) the Company cease using the "flask and
world" logo and trademark in any manner in connection with the Company's
business and assign to GLI all of the Company's right, title and interest in and
to that trademark. The limitations set forth above on the use of the word
"Xxxxxxxx" shall also apply to any similar word or any abbreviation of such
word. In the event that any such written notice is given by GLI, the Company
agrees, within such 12-month period, to comply fully with any such demand
contained therein.
13. Miscellaneous.
(a) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. Therefore, each party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
(b) Severability. If any term or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. Except as otherwise expressly set forth in this
Agreement, no failure or delay on the part of either party in exercising any
power or right hereunder shall
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operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. Except as otherwise expressly set forth
in this Agreement, no modification or waiver of any provision of this Agreement
nor consent to any departure therefrom shall in any event be effective unless
the same shall be in writing and signed by an authorized officer of each of the
parties, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
(e) Entire Agreement. This Agreement contains the final and
complete understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter hereof. The
paragraph headings contained in this Agreement are for reference purposes only,
and shall not affect in any manner the meaning or interpretation of this
Agreement.
(f) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original but all of which together shall be one and the same
instrument.
(g) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) Notices. Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed to be duly given (i) when personally delivered or
(ii) if mailed registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent or (iv) if
sent by facsimile or other generally accepted means of electronic transmission,
on the date confirmation of transmission is received (provided that a copy of
any notice delivered pursuant to this clause (iv) shall also be sent pursuant to
clause (ii) or (iii)), addressed as follows or sent by facsimile to the
following number (or to such other address or facsimile number for a party as it
shall have specified by like notice):
(i) if to GLII, to:
Xxxxxxxx Laboratories International, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Facsimile: 000-000-0000
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(ii) if to the Company, to
Xxxxxxxx Micro Science International, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000-0000
Attention: President
Facsimile: 000-000-0000
(iii) if to a Holder of Registrable Securities, to the name
and address as the same appear in the security transfer
books of the Company,
or to such other address as either party (or other Holders of Registrable
Securities) may, from time to time, designate in a written notice in a like
manner.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(j) Assignment. Except as specifically provided herein, the parties
may not assign their rights under this Agreement. The Company may not delegate
its obligations under this Agreement.
(k) Conflicting Agreements. The Company shall not hereafter grant
any rights to any person to register securities of the Company, the exercise of
which would conflict with the rights granted to the Holders of the Registrable
Securities under this Agreement. The Company shall not hereafter grant to any
person demand registration rights permitting it to exclude the Holders from
including Registrable Securities in a registration on behalf of such person on a
basis more favorable than that set forth in Section 2(d) hereof with respect to
the Holders.
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IN WITNESS WHEREOF, GLII and the Company have caused this Agreement
to be duly executed by their authorized representative as of the date first
above written.
XXXXXXXX LABORATORIES
INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
XXXXXXXX MICRO SCIENCE
INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
20
