Exhibit 2.2
ORYX INSTRUMENTS AND MATERIALS CORPORATION
Stockholders Agreement
February 27, 1998
TABLE OF CONTENTS
Page
1. Registration Rights.............................................................................2
1.1 Definitions..............................................................................................2
1.2 Company Registration.....................................................................................3
1.3 Obligations of the Company...............................................................................4
1.4 Furnish Information......................................................................................6
1.5 Expenses of Company Registration.........................................................................6
1.6 Underwriting Requirements. Other Limitations............................................................7
1.7 Delay of Registration....................................................................................7
1.8 Indemnification..........................................................................................7
1.9 Reports Under Securities Exchange Act of 1934...........................................................10
1.10 Form S-3 Registration...................................................................................11
1.11 Assignment of Registration Rights.......................................................................12
1.12 "Market Stand-Off" Agreement............................................................................13
1.13 Termination of Registration Rights......................................................................13
2. Covenants......................................................................................13
2.1 Delivery of Financial Statements........................................................................13
2.2 Inspection..............................................................................................14
2.3 Termination of Information and Inspection Covenants.....................................................14
2.4 Board of Directors......................................................................................14
2.5 Right of First Offer; Limitation on Options Issuance....................................................14
3. Miscellaneous..................................................................................16
3.1 Successors and Assigns..................................................................................16
3.2 Governing Law...........................................................................................17
3.3 Counterparts............................................................................................17
3.4 Titles and Subtitles....................................................................................17
3.5 Notices.................................................................................................17
3.6 Expenses................................................................................................17
3.7 Amendments and Waivers..................................................................................17
3.8 Severability............................................................................................18
3.9 Aggregation of Stock....................................................................................18
3.10 Entire Agreement; Amendment; Waiver.....................................................................18
Stockholders Agreement
THIS STOCKHOLDERS AGREEMENT ("Agreement") is made as of the
27th day of February, 1998, by and among Oryx Instruments and Materials
Corporation, a Delaware corporation (the "Company") and the stockholders listed
on the signature page of this Agreement (the "Stockholders").
RECITALS
A. The Company and each Stockholder are parties to the Stock
Purchase and Reorganization Agreement of even date herewith (the "Reorganization
Agreement") and desire to make provisions for the election of certain members of
the Board of Directors of the Company and other matters.
NOW, THEREFORE, the parties hereby agree as follows:
Registration Rights.
The Company covenants and agrees as follows:
Definitions.
For purposes of this Section 1:
The term "Act" means the Securities Act of
1933, as amended.
The term "Common Stock" means the validly
issued and outstanding Common Stock or Common Stock
Equivalents or any other securities convertible into
Common Stock of the Issuer.
The term "Form S-3" means such form under
the Act as in effect on the date hereof or any
substitute registration form under the Act
subsequently adopted by the SEC and then in effect
which form permits inclusion or incorporation of
substantial information by reference to other
documents filed by the Company with the SEC.
The term "Holder" means any person owning or
having the right to acquire Registrable Securities or
any assignee thereof in accordance with Section 1.11
hereof.
The term "1934 Act" shall mean the
Securities Exchange Act of 1934, as amended.
The term "register," "registered," and
"registration" refer to a registration effected by
preparing and filing a registration statement or
similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such
registration statement or document.
The term "Registrable Securities" means any
Common Stock of the Company issued including all
Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other
distribution, excluding in all cases, however, any
Registrable Securities sold by a person in a
transaction in which its rights under this Section 1
are not assigned.
The number of shares of "Registrable
Securities then outstanding" shall be determined by
the number of shares of Common Stock outstanding
which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible
securities which are, Registrable Securities.
The term "SEC" shall mean the Securities and
Exchange Commission.
Company Registration.
If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, a registration on
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.6, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
Obligations of the Company.
Whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
Prepare and file with the SEC a registration
statement with respect to such Registrable Securities
and use its best efforts to cause such registration
statement to become effective, and, upon the request
of the Holders of a majority of the Registrable
Securities registered thereunder, keep such
registration statement effective for a period of up
to one hundred twenty (120) days or until the
distribution contemplated in the Registration
Statement has been completed; provided, however, that
(i) such 120-day period shall be extended for a
period of time equal to the period the Holder
refrains from selling any securities included in such
registration at the request of an underwriter of
Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended
to be offered on a continuous or delayed basis, such
120-day period shall be extended, if necessary, to
keep the registration statement effective until all
such Registrable Securities are sold, provided that
Rule 415, or any successor rule under the Act,
permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the
Act governing the obligation to file a post-effective
amendment permit, in lieu of filing a post-effective
amendment which (i) includes any prospectus required
by Section 10(a)(3) of the Act or (ii) reflects facts
or events representing a material or fundamental
change in the information set forth in the
registration statement, the incorporation by
reference of information required to be included in
(i) and (ii) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the
1934 Act in the registration statement.
Prepare and file with the SEC such
amendments and supplements to such registration
statement and the prospectus used in connection with
such registration statement as may be necessary to
comply with the provisions of the Act with respect to
the disposition of all securities covered by such
registration statement.
Furnish to the Holders such numbers of
copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of
the Act, and such other documents as they may
reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
Use its best efforts to register and qualify
the securities covered by such registration statement
under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be
required in connection therewith or as a condition
thereto to qualify to do business or to file a
general Consent to service of process in any such
states or jurisdictions.
In the event of any underwritten public
offering, enter into and perform its obligations
under an underwriting agreement, in usual and
customary form, with the managing underwriter of such
offering. Each Holder participating in such
underwriting shall also enter into and perform its
obligations under such an agreement.
Notify each Holder of Registrable securities
covered by such registration statement at any time
when a prospectus relating thereto is required to be
delivered under the 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 a material fact required to be stated therein
or necessary to make the statements therein not
misleading in the light of the circumstances then
existing.
Cause all such Registrable Securities
registered pursuant hereunder to be listed on each
securities exchange on which similar securities
issued by the Company are then listed.
Provide a transfer agent and registrar for
all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable
securities, in each case not later than the effective
date of such registration.
Furnish Information.
It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities
of any selling Holder that such Holder shall furnish
to the Company such information regarding itself, the
Registrable Securities held by it, and the intended
method of disposition of such securities as shall be
required to effect the registration of such Holder's
Registrable Securities.
The Company shall have no obligation with
respect to any registration requested pursuant to
Section 1.10 if, due to the operation of subsection
1.4(a), the number of shares or the anticipated
aggregate offering price of the Registrable
Securities to be included in the registration does
not equal or exceed the number of shares or the
anticipated aggregate offering price required to
originally trigger the Company's obligation to
initiate such registration as specified in subsection
subsection 1.10(b)(ii).
Expenses of Company Registration.
The Company shall bear and pay all expenses incurred in
connection with any registration, filing or qualification of Registrable
Securities with respect to the registrations pursuant to Section 1.2 for each
Holder (which right may be assigned as provided in Section 1.11), including
(without limitation) all registration, filing, and qualification fees, printers
and accounting fees relating or apportionable thereto. The fees and
disbursements of counsel for the selling Holders, if any, shall be paid by such
Holders, as shall any underwriting discounts and commissions relating to
Registrable Securities.
Underwriting Requirements. Other Limitations.
In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
Section 1.2 to include any of the Holder's securities in such underwriting if
(i) it is the initial public offering of the Company's securities or (ii) unless
the Holder accepts the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons entitled to
select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling Stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders).
For purposes of the preceding parenthetical concerning apportionment, for any
selling stockholder which is a holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and stockholders of
such holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall
all be deemed to be a single "selling stockholder," and any pro-rata reduction
with respect to such "selling stockholder" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "selling stockholder," as defined in this sentence.
Delay of Registration.
No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
Indemnification.
In the event any Registrable Securities are included in a
registration statement under this Section 1:
To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any
underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934
Act, against any losses, claims, damages,, or
liabilities (joint or several) to which they may
become subject under the Act, or the 1934 Act,
insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in such registration
statement, including any preliminary prospectus or
final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to
be stated therein, or necessary to make the
statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the
Act, the 1934 Act, or any rule or regulation
promulgated under the Act, or the 1934 Act; and the
Company will pay to each such Holder, underwriter or
controlling person any legal or other expenses
reasonably incurred by them in connection with
investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that
the indemnity agreement contained in this subsection
1.8(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of
the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage,
liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in
reliance upon and in conformity with written
information furnished expressly for use in connection
with such registration by any such Holder,
underwriter or controlling person.
To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company,
each of its directors, each of its officers who has
signed the registration statement, each person, if
any, who controls the Company within the meaning of
the Act, any underwriter, any other Holder selling
securities in such registration statement and any
controlling person of any such underwriter or other
Holder, against any losses, claims, damages, or
liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act
or the 1934 Act, insofar as such losses, claims,
damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance
upon and in conformity with written information
furnished by such Holder expressly for use in
connection with such registration; and each such
Holder will pay any legal or other expenses
reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.8(b), in
connection with investigating or defending any such
loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in
this subsection 1.8(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected
without the consent of the Holder, which consent
shall not be unreasonably withheld.
Promptly after receipt by an indemnified
party under this Section 1.8 of notice of the
commencement of any action (including any
governmental action), such indemnified party will, if
a claim in respect thereof is to be made against any
indemnifying party under this Section 1.8, deliver to
the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that
an indemnified party (together with all other
indemnified parties which may be represented without
conflict by one counsel) shall have the right to
retain one separate counsel, with the fees and
expenses to be paid by the indemnifying party, if
representation of such indemnified party by the
counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing
interests between such indemnified party and any
other party represented by such counsel in such
proceeding. The failure to deliver written notice to
the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve
such indemnifying party of any liability to the
indemnified party under this Section 1.8, but the
omission so to deliver written notice to the
indemnifying party will not relieve it of any
liability that it may have to any indemnified party
otherwise than under this Section 1.8.
If the indemnification provided for in this
Section 1.8 is held by a court of competent
jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim,
damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the
other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage,
or expense as well as any other relevant equitable
considerations. The relative fault of the
indemnifying party and of the indemnified party shall
be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact or the omission to state a material
fact relates to information supplied by the
indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent
such statement or omission.
Notwithstanding the foregoing, to the extent
that the provisions on indemnification and
contribution contained in the underwriting agreement
entered into in connection with the underwritten
public offering are in conflict with the foregoing
provisions, the provisions in the underwriting
agreement shall control.
The obligations of the Company and Holders
under this Section 1.8 shall survive the completion
of any offering of Registrable Securities in a
registration statement under this Section 1, and
otherwise.
Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits
of Rule 144 promulgated under the Act and any other rule or regulation of the
SEC that may at any time permit a Holder to sell securities of the Company to
the public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at
all times after ninety (90) days after the effective
date of the first registration statement filed by the
Company for the offering of its securities to the
general public;
take such action, including the voluntary
registration of its Common Stock under Section 12 of
the 1934 Act, as is necessary to enable the Holders
to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as
practicable after the end of the fiscal year in which
the first registration statement filed by the Company
for the offering of its securities to the general
public is declared effective;
file with the SEC in a timely manner all reports and
other documents required of the Company under the Act
and the 1934 Act; and
furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied
with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective
date of the first registration statement filed by the
Company), the Act and the 1934 Act (at any time after
it has become subject to such reporting
requirements), or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the
Company and such other reports and documents so filed
by the Company, and (iii) such other information as
may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the
selling of any such securities without registration
or pursuant to such form.
Form S-3 Registration.
The Holders shall have the right to request that the Company
file a registration statement on Form S-3 no more than once every twelve months,
and in any case no more than twice. In case the Company shall receive from any
Holder a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder (which request meets the
terms and conditions of this section), the Company will:
promptly give written notice of the proposed
registration, and any related qualification or
compliance, to all other Holders (if any exist); and
as soon as practicable, effect such registration and
all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale
and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such
portion of the Registrable Securities of any other
Holder or Holders joining in such request as are
specified in a written request given within 15 days
after receipt of such written notice from the
Company; provided, however, that the Company shall
not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section
1.10: (i) if Form S-3 is not available for such
offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of
the Company entitled to inclusion in such
registration, propose to sell Registrable Securities
and such other securities (if any) at an aggregate
price to the public (net of any underwriters'
discounts or commissions) of less than $500,000;
(iii) if the Company shall furnish to the Holders a
certificate signed by the President of the Company
stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for
such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right
to defer the filing of the Form S-3 registration
statement for a period of not more than 120 days
after receipt of the request of the Holder or Holders
under this Section 1.10; provided, however, that the
Company shall not utilize this right more than twice
in any twelve month period; (iv) if the Company has,
within the twelve (12) month period preceding such
registration request, already effected one
registration on Form S-3 for the Holders pursuant to
this Section 1.10 or more than two such
registrations; or (v) in any particular jurisdiction
in which the Company would be required to qualify to
do business or to execute a general consent to
service of process in effecting such registration,
qualification or compliance.
Subject to the foregoing with respect to Form S-3
registrations, the Company shall file a registration
statement covering the Registrable Securities and
other securities so requested to be registered as
soon as practicable after receipt of the request or
requests of the Holders. All expenses incurred in
connection with a registration requested pursuant to
Section 1.10, including (without limitation) all
registration, filing, qualification, printer's and
accounting fees and counsel for the Company, but
excluding any underwriters' discounts or commissions
associated with Registrable Securities, and the Fees
and disbursements of counsel for the selling Holder
or Holders shall be borne by the Company.
Assignment of Registration Rights.
The rights to cause the Company to register Registrable
Securities pursuant to this Section 1 may be assigned (but only with all related
obligations) by a Holder to (i) any partner or retired partner of any Holder
that is a partnership, (ii) any family member or trust for the benefit of any
individual Holder, or (iii) a transferee or assignee of such securities who
after such assignment or transfer, holds at least 500,000 shares of Registrable
Securities or all of the Registrable Securities purchased by a Holder under the
Reorganization Agreement (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations); provided: (a) the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 1.12 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this Section 1.
"Market Stand-Off" Agreement.
All Holders hereby agree that, during the period of duration
specified by the Company and an underwriter of common stock or other securities
of the Company, following the date of a sale to the public pursuant to a
registration statement of the Company filed under the Act, each shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except common stock included in such
registration; provided, however, that:
all officers and directors of the Company and all
holders of more than three percent (3%) of the
Company's shares enter into similar agreements of
equal duration; and
such market stand-off time period shall not exceed
three hundred sixty-five (365) days.
In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with
respect to the Registrable Securities of each Holder
(and the shares or securities of every other person
subject to the foregoing restriction) until the end
of such period.
Notwithstanding the foregoing, the obligations
described in this Section 1.12 shall not apply to a
registration relating solely to employee benefit
plans on Form S-1 or Form S-8 or similar forms which
may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction
on Form S-14 or Form S-15 or similar forms which may
be promulgated in the future.
Termination of Registration Rights.
No Holder shall be entitled to exercise any right provided for in this
Section 1 after three (3) years following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public.
Covenants.
Delivery of Financial Statements.
As long as a Stockholder continues to hold shares of Common
Stock of the Company, the Company shall deliver to such Stockholder:
as soon as practicable, but in any event within one
hundred twenty (120) days after the end of each
fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and
statement of stockholder's equity as of the end of
such year, and a schedule as to the sources and
applications of funds for such year, such year-end
financial reports to be in reasonable detail,
prepared in accordance with generally accepted
accounting principles ("GAAP"), and certified by the
Chief Financial Officer or President of the Company;
and
as soon as practicable, but in any event within
forty-five (45) days after the end of each calendar
quarter, an unaudited balance sheet and income
statement and schedule as to the sources and
application of funds as of the end of such fiscal
quarter, such reports to be prepared in accordance
with GAAP (with the exception of footnotes that may
be required by GAAP).
Inspection.
As long as an Stockholder holds not less than 500,000 shares
of Common Stock, the Company shall permit such Stockholder, at such
Stockholder's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Stockholder; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information which it
reasonably considers to be a trade secret or similar confidential information.
Termination of Information and Inspection Covenants.
The covenants set forth in subsections 2.1(c) and Section
2.2 shall terminate as to the Stockholder and be of no further force or effect
when the sale of securities pursuant to a registration statement filed by the
Company under the Act in connection with the firm commitment underwritten
offering of its securities to the general public is consummated or when the
Company first becomes subject to the periodic reporting requirements of Sections
12(g) or 15(d) of the 1934 Act, whichever event shall first occur.
Board of Directors.
For so long as Oryx Technology Corp. shall own not less than
fifty percent (50%) of the shares of Common Stock held by it immediately
following the Closing of the Reorganization Agreement, the Company agrees to
nominate, and each of the Stockholders agrees to vote all shares held by it in
favor of the election of one (1) designee of Oryx Technology Corp. to the Board
of Directors of the Company (the "Oryx Designee"). The Board of Directors shall
initially consist of the Oryx Designee, three other persons nominated by Corus
Investment Ltd., and the chief executive officer of the Company.
Right of First Offer; Limitation on Options Issuance
Subject to the terms and conditions specified in this
paragraph 2.5, the Company hereby grants to each Stockholder a right of first
offer with respect to future sales by the Company of its Shares (as hereinafter
defined). For purposes of this Section 2.5, Stockholder includes any general
partners and affiliates of Stockholder. A Stockholder shall be entitled to
apportion the right of first offer hereby granted it among itself and its
partners and affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Stockholder in accordance with the following provisions:
The Company shall deliver a notice by mail or
facsimile ("Notice") to Stockholder stating (i) its
bona fide intention to offer such shares, (ii) the
number of such Shares to be offered, and (iii) the
price and terms, if any, upon which it proposes to
offer such Shares.
Within 15 calendar days after giving of the Notice,
Stockholder may elect to purchase or obtain, at the
price and on the terms specified in the Notice, up to
that portion of such Shares which equals the
proportion that the number of shares of Common Stock
issued and held by Stockholder bears to the total
number of shares of common stock of the Company then
outstanding.
If all Shares which Stockholder is entitled to obtain
pursuant to subsection 2.5(b) are not elected to be
obtained as provided in subsection 2.5(b) hereof, the
Company may, during the 90-day period following the
expiration of the period provided in subsection 2.5
(b) hereof, offer the remaining unsubscribed portion
of such Shares to any person or persons at a price
not less than, and upon terms no more favorable to
the offeree than those specified in the Notice. If
the Company does not enter into an agreement for the
sale of the Shares within such period, or if such
agreement is not consummated within 90 days of the
execution thereof, the right provided hereunder shall
be deemed to be revived and such Shares shall not be
offered unless first re-offered to Stockholder in
accordance herewith.
The right of first offer in this paragraph 2.5 shall
not be applicable (i) to the issuance or sale of up
to 3,333,333 shares of Common Stock (or options
therefor) to employees, directors, or consultants to
the Company or the issuance or sale of up to an
additional 701,754 additional shares of Common Stock
(or options therefor) to such persons provided that
the sale or option price is no less than the purchase
price per share of Common Stock paid to Oryx
Technology Corp. by the Company for the redemption of
its shares of Common Stock pursuant to the
Reorganization Agreement (such numbers of shares,
together with the price limitations thereon, are
referred to below as the "Option Limit"), (ii) to or
after consummation of a bona fide, firmly
underwritten public offering of shares of common
stock, registered under the Act, (iii) to the
issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by
merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, or (iv) to up to
400,000 shares of Common Stock, warrants exercisable
for shares of Common Stock, or other securities or
rights convertible into Common Stock to persons or
entities with which the Company has business
relationships provided that the pre-money valuation
of the Company implicit in the purchase price of such
securities is no less than $3,500,000. The Company
shall not issue or sell Common Stock or options
therefor in amounts in excess of amounts permitted
by, or at prices lower than those permitted by, the
Option Limit without the written consent of Oryx
Technology Corp.
The right of first refusal set forth in this Section
2.5 may not be assigned or transferred, except that
such right is assignable by Stockholder to any wholly
owned subsidiary or parent of, or to any corporation
or entity that is, within the meaning of the Act,
controlling, controlled by or under common control
with, Stockholder. The right of first refusal and
limitations on the Company imposed by this Section
2.5 shall terminate upon the closing of an initial
public offering of the Company's Common Stock
pursuant to an effective registration statement under
the Act.
Within thirty (30) days of the date hereof, Corus
Investment Ltd. Shall cause to be executed an
irrevocable letter of credit in substantially the
form attached hereto as Exhibit A.
Any breach by the Company of the obligations set
forth in Section 2.4 or subsections 2.5(d) or (f)
shall cause all indebtedness of the Company under
that certain $1,000,000 promissory note in favor of
Oryx Technology Corp. by the Company pursuant to the
Reorganization Agreement to accelerate as provided in
such note.
Miscellaneous.
Successors and Assigns.
Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including transferees of
any shares of Registrable Securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
Governing Law.
This Agreement shall be governed by and construed under the
laws of the State of Delaware, without regard to conflict of laws provisions
thereof.
Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Titles and Subtitles.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
Notices.
Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
Expenses.
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
obtain from the non-prevailing party reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
Amendments and Waivers.
Any term of this Agreement with respect to Section 1 only
may be amended, only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. For all other
amendments, the written consent of all parties shall be required. No waiver
shall be effective unless in writing signed by the person charged with making
such waiver. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
Aggregation of Stock.
All shares of Registrable Securities held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
Entire Agreement; Amendment; Waiver.
This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subject hereof.
IN WITNESS WHEREOF, the parties have executed this
Stockholders Agreement as of the date first above written.
ORYX INSTRUMENTS AND MATERIALS CORPORATION
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
Address:_____________________________________________
ORYX TECHNOLOGY CORP.
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
Address:_____________________________________________
CORUS INVESTMENT LTD.
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
Address:_____________________________________________
