Exhibit 4.6
GCA CORPORATION
REGISTRATION AGREEMENT
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Registration Agreement, dated as of September 1, 1987, among GCA
Corporation, a Delaware corporation (the "Company"), and Xxxx Zeiss, Inc.
("Zeiss"). Terms not otherwise defined herein shall have the meaning
ascribed to them in the Warrant Agreement.
WITNESSETH
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WHEREAS, the Company and Zeiss are parties to that certain
Warrant Agreement of even date herewith (the "Warrant Agreement"), pursuant
to which the Company has issued to Zeiss a warrant (the "Warrant") to
purchase 500,000 shares of common stock, $.01 par value per share, of the
Company (the "Common Stock"); and
WHEREAS, the Warrant Agreement provides that Zeiss and subsequent
holders of the Warrant or portions thereof outstanding and unexercised from
time to time shall have certain registration rights with respect to the
Warrant Shares issuable pursuant to the exercise of the Warrant;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company and Zeiss agree as
follows:
1. Defined Terms. Capitalized terms used in this Agreement,
unless separately defined herein, shall have the meanings ascribed to such
terms in the Warrant Agreement.
2. Demand Registrations. (a) At any time after the date hereof,
the holder of the Warrant representing the right to purchase at least
200,000 shares of Common Stock of the Company or the holder of at least
200,000 Warrant Shares (equitably adjusted to reflect stock splits, stock
dividends, combinations or similar events and adjustments pursuant to
Section 4 of the Warrant) may request registration under the Securities Act
of 1933, as amended (the "Securities Act"), of all or part of their Warrant
Shares on Form S-1 or any other form available for the registration of the
Warrant Shares ("Demand Registrations"), by written notice to the Company
of such request accompanied by the simultaneous exercise of the Warrant to
the extent of not less than Twenty Thousand (20,000) shares of Common Stock
of the Company, $.01 Par Value, less the number of previously exercised
shares which have not been registered. Within 10 days after receipt of any
such request, the Company shall give written notice of such request to all
other holders of the Warrant and of the Warrant Shares and shall, subject
to the provisions of Section 2(c) hereof, include in such registration all
Warrant Shares with respect to which the Company has received written
requests for inclusion therein within 30 days after the receipt of the
Company's notice.
(b) Subject to the provisions of Section 2(a), the Company
shall pay all Registration Expenses (as defined in Section 6 hereof) in
connection with each such registration. The Company shall pay all
Registration Expenses in connection with any registration initiated as a
Demand Registration, whether or not consummated.
(c) In the event that the managing underwriters of the
requested Demand Registration advise the Company in writing that in their
judgment in order to effect an orderly public distribution the number of
Warrant Shares proposed to be included in any such Demand Registration must
be limited, the Company shall include in such registration only the number
of Warrant Shares which, in the opinion of such underwriters, can be sold
in an orderly public distribution, such limitation to be imposed pro rata
among the holders of the Warrant or of the Warrant Shares, as the case may
be, who are participating in such registration on the basis of the amount
of such securities initially proposed to be registered by such holder.
(d) The Company shall not be obligated to effect any Demand
Registration within six months after the effective date of a previous
Demand Registration or a previous registration under which each holder of
Warrant Shares was given piggyback rights (and was able to include a
minimum of 66-2/3% of the shares of Warrant Shares requested by it to be
included in such registration) pursuant to Section 3 hereof. The Company
may postpone for up to six months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company reasonably
believes that such Demand Registration might reasonably be expected to have
an adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course of business) or
any merger, consolidation, tender offer or similar transaction. If the
Company elects to postpone the filing or effectiveness of a Demand
Registration, it shall promptly notify each holder of the Warrant and of
Warrant Shares.
(e) The holders of a majority of the Warrant Shares
participating in any Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to
the Company's approval, which shall not be unreasonably withheld.
3. Piggyback Registrations. (a) Whenever the Company proposes to
register any of its equity securities under the Securities Act (other than
pursuant to a Demand Registration) and the registration form to be used may
be used for the registration of the Warrant Shares (a "Piggyback
Registration"), the Company shall give prompt written notice to all holders
of the Warrant and of Warrant Shares of its intention to effect such a
registration and shall include in such registration all Warrant Shares with
respect to which the Company has received written requests for inclusion
therein within 30 days after the receipt of the Company's notice.
(b) The Registration Expenses of the holders of Warrant
Shares shall be paid by such holders in all Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise
the Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Warrant Shares requested to be included in such registration,
pro rata among the holders of such securities on the basis of the numbers
of shares initially proposed to be registered by such holders, and (iii)
third, any other securities requested to be included in such registration.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities other than
the holders of the Warrant Shares, and the managing underwriters advise the
Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities requested to be included therein by
the holders requesting such registration (ii) second, the Warrant Shares
requested to be included in such registration, pro rata among the holders
of such securities on the basis of the number of shares initially proposed
to registered by such holders, and (iii) third, any other securities
requested to be included in such registration.
4. Holdback Agreements. (a) Each holder of Warrant Shares agrees
not to effect any public sale or distribution of the Warrant Shares owned
by such holder, including, without limitation, sales pursuant to Rule 144
(or any similar rule then in effect), during the 10 days prior to, and the
90 days beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Warrant
Shares owned by such holder are included (except as part of such
underwritten registration) unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into
or exchangeable or exercisable for such securities, during the 10 days
prior to, and during the 90 days beginning on, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form) unless the underwriters
managing the registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of the Warrant
or of the Warrant Shares have requested that any Warrant Shares be
registered pursuant to this Agreement, the Company shall use its best
efforts to effect the registration of such Warrant Shares in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Warrant Shares and
use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will
furnish to the counsel selected by the holders of a majority of the Warrant
Shares requesting such registration statement copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel);
(b) prepare and file with the Securities and Exchange
Commission 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 for a period of not less than 180
days and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition
by the sellers thereof as set forth in such registration statement;
(c) furnish to each seller of Warrant Shares such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Warrant
Shares owned by such seller;
(d) use its best efforts to register or qualify such Warrant
Shares under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Warrant Shares
owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Warrant Shares at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and shall prepare in sufficient
quantities a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchaser of such Warrant Shares such
prospectus shall not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading;
(f) use its best efforts to cause all such Warrant Shares to
be listed on each securities exchange on which similar securities issued by
the Company are then listed, and provide a transfer agent and registrar for
such securities not later than the effective date of the applicable
registration statement;
(g) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Warrant
Shares being sold or the underwriters, reasonably request in order to
expedite or facilitate the disposition of such Warrant Shares (including,
without limitation, effecting a stock split or a combination of shares);
(h) make available for inspection by any seller of Warrant
Shares, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; and
(i) use its best efforts to obtain an appropriate opinion
from the Company's counsel and a comfort letter from the Company's
independent public accountants in customary from and covering such matters
of the type customarily covered by opinions of Company counsel and comfort
letters in similar registrations as the holders of a majority of the
Warrant Shares being sold reasonably request (provided that such holders
constitute the holders of a majority of the securities covered by such
registration agreement).
If any such registration statement refers to any holder by name
or otherwise as the holder of any securities of the Company, such holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such holder, to the effect
that the holding by such holder of such securities is not to be construed
as a recommendation of such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements
of the Company, or (ii) in the event that such reference to such holder by
name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such
holder.
6. Registration Expenses. (a) All expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation, all registration and filing and listing fees, National
Association of Securities Dealers, Inc. fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company, all
independent certified public accountants, and underwriters (excluding
discounts and commissions) (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company
are then listed.
(b) In connection with each Registration initiated as a
Demand Registration, the Company shall reimburse the holders of the Warrant
Shares covered by such registration for the reasonable fees and
disbursements of one law firm chosen by the holders of a majority of the
Warrant Shares included in such registration.
(c) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in any
registration hereunder shall pay the Registration Expense allocated to the
registration of such holder's securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of securities
included in such registration in proportion to the aggregate selling price
of the securities to be so registered.
7. Indemnification. (a) The Company agrees to indemnify, to the
extent permitted by law, each holder of the Warrant and of Warrant Shares,
its officers and directors and each Person who controls such holder (within
the meaning of the Securities Act), against all losses, claims, damages,
liabilities and expenses caused by, resulting from, arising out of or based
upon any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused
by, resulting from, arising out of or based upon or contained in any
information furnished in writing to the Company by such holder expressly
for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder with a sufficient
number of copies of the same. In connection with an underwritten offering,
the Company shall indemnify such underwriters, their officers and directors
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of the Warrant and of Warrant Shares.
(b) In connection with any registration settlement in which
a holder of a Warrant or of Warrant Shares is participating, each such
holder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with
any such registration statement or prospectus and, to the extent permitted
by law, shall indemnify each other holder of a Warrant and of Warrant
Shares, the Company, its directors and officers and each person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses caused by, resulting
from, arising out of or based upon any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in
any information or affidavit so furnished in writing by such holder
expressly for use in the registration statement; provided, however, that
the obligation to indemnify shall be several, not joint and several, among
such holders of a Warrant and of Warrant Shares and the liability of each
such holder of a Warrant and of Warrant Shares, shall be in proportion to
and limited to the net amount received by such holder from the sale of
Warrant Shares pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other
of such indemnified parties with respect to such claim. Failure to give
prompt written notice shall not release the indemnifying party from its
obligations hereunder.
(d) To the extent permitted by law, the indemnification
provided for under this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person of such indemnified
party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to
this Section 7 is due in accordance with the terms thereof, but is for any
reason unavailable or unenforceable or insufficient in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified person as a result of such losses, claims, damages, liabilities
or expenses 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 which
resulted in such losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party, by such party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement, or omission. In no event shall the
liability of any selling holder of Warrant Shares be greater in amount than
the amount of proceeds received by such holder upon such sale.
8. Participation in Underwritten Registrations. No holder of
Warrant Shares may participate in any registration hereunder which is
underwritten unless such holder (a) agrees to sell such holder's securities
on the basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents require under the terms of such
underwriting arrangements.
9. Miscellaneous. (a) Except as otherwise provided herein, the
provisions of this Agreement may be amended only with the written consent
of the Company and the holders of a Warrant to purchase at least 50% of the
then unexercised Warrant Shares.
(b) All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
their respective successors and assigns whether so expressed or not. Each
successor and assign shall agree to be bound by the terms hereof as if
originally a party hereto. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or holders of the Warrant Shares are also for the
benefit of, and enforceable by, any subsequent holder of such Warrant
Shares, provided that each such transferee shall agree in writing to by
bound by the terms and conditions of this Agreement.
(c) Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision of this Agreement.
(d) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same Agreement.
(e) The headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(f) This Agreement shall be governed by the law of the State
of New York.
(g) All notices provided for herein shall be given or made
by certified mail or hand delivery, mailed or delivered to the intended
recipient at the address specified below its name on the signature page
hereof; or as to any party, at such other address as shall be designated by
such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly
given when mailed or personally delivered.
(h) The Company will not hereafter enter into any agreement
with respect to its securities which is inconsistent with the rights
granted under this Agreement to the holders of Warrant Shares.
(i) Any person having rights under any provisions this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law.
(j) In any action of proceeding brought to enforce any
provision of this Agreement, or where any provision of such Agreement is
validly asserted as a defense, the successfully party shall receive
attorneys fees in addition to any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
GCA CORPORATION
By
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(Name and Title)
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
XXXX ZEISS, INC.
By
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(Name and Title)
0 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
