Exhibit 99.1
TECHNE CORPORATION
Stockholder's Rights Agreement
July 1, 1998
TECHNE CORPORATION
Stockholder's Rights Agreement
TABLE OF CONTENTS
Page
SECTION 1 Restrictions on Transferability of Securities;
Registration Rights.............................................1
1.1 Certain Definitions...................................................1
1.2 Required Registration.................................................3
1.3 Piggyback Registration................................................3
1.4 Underwriting Procedures...............................................4
1.5 Expenses of Registration..............................................5
1.6 Registration Procedures...............................................5
1.7 Standstill Agreement..................................................6
1.8 Registration Statement................................................6
1.9 Trading Practices.....................................................7
1.10 Indemnification......................................................7
1.11 Information by Holder................................................9
1.12 Rule 144 Reporting...................................................9
1.13 Transfer or Assignment of Registration Rights.......................10
1.14 Delay of Registration...............................................10
1.15 Termination of Registration Rights..................................10
SECTION 2 Covenants of the Company..........................................10
2.1 Basic Financial Information..........................................10
2.2 Additional Information and Rights....................................11
SECTION 3 Representations of Securityholder................................12
3.1 Purchase Entirely for Own Account....................................12
3.2 Investment Experience................................................12
3.3 Accredited Investor..................................................12
3.4 Restricted Securities................................................12
3.5 Legends..............................................................12
SECTION 4 Miscellaneous....................................................13
4.1 Entire Agreement.....................................................13
4.2 Successors and Assigns...............................................13
4.3 Governing Law........................................................13
4.4 Counterparts.........................................................13
4.5 Amendments and Waivers...............................................13
4.6 Information Confidential.............................................14
4.7 Delays or Omissions..................................................14
4.8 Separability.........................................................14
4.9 Succession to Rights.................................................14
4.10 Notices.............................................................15
TECHNE CORPORATION
Stockholder's Rights Agreement
This Stockholder's Rights Agreement (the "Agreement") is made and entered
into as of July 1, 1998, by and among TECHNE CORPORATION, a Minnesota
corporation (the "Company"), and GENZYME Corporation, a Massachusetts
corporation (the "Securityholder").
Recitals
WHEREAS, the Securityholder is a party to the Purchase and Sale Agreement
dated as of June 22, 1998 among the Company, Research and Diagnostic Systems,
Inc. and the Securityholder (the "Purchase Agreement"), and certain of the
Company's and the Securityholder's obligations under the Purchase Agreement are
conditioned upon the execution and delivery by the Securityholder and the
Company of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto further agree as follows:
SECTION 1
Restrictions on Transferability of Securities; Registration Rights
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "Closing" shall mean the date of the initial issuance to the
Securityholder of the Company's Shares.
(b) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(c) "Common Stock" shall mean the Common Stock of the Company, which shall
have a par value of $.01 per share solely for the purpose of a statute or
regulation imposing a tax or fee based upon the capitalization of the Company.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(e) "Form S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission which permits inclusion or incorporation
of substantial information by reference to other documents filed by the Company
with the Commission.
(f) "Holder" shall mean the Securityholder as long as it holds Registrable
Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.13 hereof.
(g) "Majority Holders" shall mean any Holder or Holders who in the
aggregate hold no less than 50 percent (50%) of the outstanding Registrable
Securities.
(h) "Proposed Registration" shall have the meaning set forth in Section
1.3.
(i) "Registrable Securities" shall mean (i) the Shares and (ii) any other
security of the Company issued as a dividend or other distribution with respect
to or in exchange for or in replacement of the Shares, provided, however, that
Registrable Securities shall not include any shares of Common Stock which have
previously been registered or which have been sold to the public.
(j) The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
(k) "Registration Expenses" shall mean all expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration, qualification, filing fees, fees and disbursements of counsel for
the Company, blue sky fees and expenses, and expenses of any regular or special
audits incident to or required by any such registration, but shall not include
Selling Expenses.
(l) "Registration Period" shall mean the period commencing on the effective
date of the registration statement filed pursuant to Section 1.2(a) and ending
on the earlier of: (a) the date on which all of the Registrable Securities
subject to the registration statement are sold, or (b) the date on which all of
the Registrable Securities subject to the registration statement are eligible
for sale pursuant to Rule 144(k) under the Securities Act.
(m) "Rule 144" shall mean Rule 144 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(n) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute and the rules and regulations thereunder,
all as the same shall be in effect from time to time.
(o) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for any Holder.
(p) "Shares" shall mean the Shares of Common Stock issued to the
Securityholder pursuant to the Purchase Agreement.
1.2 Required Registration.
(a) Required Registration. As soon as practicable after the Closing under
the Purchase Agreement, the Company shall prepare and file a registration
statement as a "shelf" registration statement under Rule 415 of the Securities
Act covering the resale of all of the Registrable Securities and shall use its
best efforts to have such registration statement declared effective by the
Commission as soon as reasonably possible after the Company has filed with the
Commission its Annual Report on Form 10-K for its fiscal year ended June 30,
1998.
(b) The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 1.2, in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification, or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
1.3 Piggyback Registration. If at any time prior to the expiration of the
Registration Period, (i) the Company proposes to register shares of its Common
Stock under the Securities Act in connection with the public offering of such
shares for cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan or a registration on Form S-4
under the Securities Act or any successor or similar form registering stock
issuable upon a reclassification, a business combination involving an exchange
of securities or an exchange offer for securities of the issuer or another
entity) (a "Proposed Registration") and (ii) a registration statement covering
the sale of all of the Registrable Securities pursuant to Section 1.2 above is
not then effective and available for sales thereof by the Holders, the Company
shall, at such time, promptly give the Holders written notice of such Proposed
Registration. Each Holder shall have twenty (20) days from receipt of such
notice to deliver to the Company a written request specifying the amount of
Registrable Securities that the Holder intends to sell and the Holder's intended
method of distribution. Upon receipt of such request, the Company shall use its
best efforts to cause all Registrable Securities which the Company has been
requested to register to be registered under the Securities Act to the extent
necessary to permit their sale or other disposition in accordance with the
intended methods of distribution specified in the request of the Holder;
provided, however, that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 1.3 without obligation to the
Holder. Each Holder agrees that if so requested by the Company, such Holder
shall not sell or otherwise transfer pursuant to a registration statement or
pursuant to Rule 144 any Registrable Securities or any rights to the Registrable
Securities during the period from the second business day prior to the effective
date of a registration statement filed by the Company under the Securities Act
in connection with the Proposed Registration until the 180th day following such
effective date (or such shorter period as the Company and underwriter in such
Proposed Registration, if any, may specify) (the "Lock-up Period"), provided,
however, that (i) all directors, executive officers, other selling stockholders
in the Proposed Registration and each holder of restricted securities, as
defined under Rule 144, that represents 1% or more of the outstanding Common
Stock of the Company agree to similar lock-up agreements, (ii) the Company shall
have provided the Holders with notice of the Proposed Registration at least 20
days prior to the beginning of the Lock-up Period and (iii) the registration
statement filed pursuant to Section 1.2 above shall have been effective for at
least 30 days prior to the beginning of the Lock-up Period. The standstill
agreement set forth in the preceding sentence would not prohibit a Holder from
selling Registrable Securities pursuant to a registration statement relating to
the Proposed Registration. Further, the foregoing standstill agreements would
not prohibit, during the Lock-up Period, gifts to donees or restrictions set
forth herein or transfers by will or the laws of descent to heirs or
beneficiaries provided such donees, heirs and beneficiaries shall be bound by
the restrictions set forth herein.
1.4 Underwriting Procedures.
(a) In the event a registration under Sections 1.2 or 1.3 is to be
underwritten, the Company shall (together with all participating Holders) enter
into and perform its obligations under an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected for
such underwriting by the Majority Holders in the case of a registration under
Section 1.2 or by the Company in the case of a registration under Section 1.3,
which underwriters are reasonably acceptable to the Company. With respect to a
registration under Section 1.3, in the event the representative of the
underwriters determines that marketing factors require a limitation on the
number of shares to be underwritten, the number of shares to be included in the
underwriting or registration by each Holder shall be reduced pro rata among such
Holders and any other selling stockholders named in such registration statement
based on the number of Registrable Securities held by each Holder and such other
selling stockholders. If a Holder who has requested inclusion in such
registration as provided above does not agree to the terms of any such
underwriting, such Holder shall be excluded therefrom by written notice from the
Company, the underwriter or the Majority Holders. The Registrable Securities so
excluded shall also be withdrawn from the registration and if the number of
shares to be included in such registration was previously reduced as a result of
marketing factors pursuant to this Section 1.4, then the Company shall offer to
all Holders who have retained rights to include Registrable Securities in the
registration the right to include additional Registrable Securities in the
registration in an aggregate amount equal to the number of shares so withdrawn,
with such shares to be allocated pro rata among such Holders requesting
additional inclusion based on the number of Registrable Securities held by each
such Holder.
(b) The Company shall include in any registration statement on Form S-3
such information as the underwriter reasonably requests for marketing purposes,
whether or not such information is required to be included in such registration
statement. On the date that Registrable Securities are delivered to an
underwriter for sale in connection with a firmly underwritten offering of
Registrable Securities, the Company shall furnish (i) a letter, dated such date,
from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters;
and (ii) an opinion, dated such date, from counsel representing the Company for
purposes of such registration statement, in form and substance as is customarily
given in an underwritten public offering, addressed to the underwriters and the
Holders.
1.5 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 1.2 and 1.3 hereof shall be borne by the Company; provided, however,
that the Holders shall bear the Registration Expenses for any registration
proceeding begun pursuant to Section 1.2 and subsequently withdrawn by the
Holders registering shares therein unless such withdrawal is based upon material
adverse information relating to the Company that is different from the
information known or available (upon request from the Company or otherwise) to
the Holders at the time of registration under Section 1.2, in which event the
Company shall bear the Registration Expenses. All Selling Expenses relating to
securities so registered shall be borne by the Holders of such securities pro
rata on the basis of the number of shares of securities so registered on their
behalf.
1.6 Registration Procedures. The Company shall provide the Holder a
reasonable opportunity to review and comment on each draft of the registration
statement and any proposed amendment thereto or to the related prospectus before
filing with the Commission and shall keep each Holder advised in writing as to
the initiation of the registration pursuant to Sections 1.2 or 1.3 hereof and as
to the completion thereof. At its expense, the Company will use its best efforts
to:
(a) Keep such registration effective pursuant to Commission Rule 415 at all
times during the Registration Period;
(b) Prepare and file with the Commission such amendments including
post-effective amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to keep the registration statement effective at all times during the
Registration Period or as may be reasonably requested by the Holders in order to
incorporate information concerning the Holders or their intended method of
distribution, and otherwise to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request;
(d) As soon as possible after becoming aware of such event or circumstance,
notify each seller of Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event or of any
circumstance 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 or incomplete in the light of the
circumstances then existing, and promptly prepare, file with the Commission and
furnish to such seller 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 shares, 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 not misleading or
incomplete in the light of the circumstances then existing; provided, however,
that the Company may delay preparing, filing and distributing any such
supplement or amendment for the period contemplated by this Section 1.6(d) (the
"Delay Period"), in which event the Holders would not be able to dispose of the
Registrable Securities pursuant to such prospectus as set forth in Section 1.7
below, if the Company's Board of Directors determines in good faith that such
supplement or amendment might, in the reasonable judgment of the Company, (i)
interfere with or affect the negotiation or completion of a transaction that is
being contemplated by the Company (whether or not a final decision has been made
to undertake such transaction) or (ii) involve initial or continuing disclosure
obligations that are not in the best interests of the Company's stockholders at
such time; provided, further, that (x) the Company will give written notice to
all Holders (a "Standstill Notice") of any such delay no less than five (5)
business days prior to such delay, (y) such delay shall not extend for a period
of more than ninety (90) business days without the written consent of the
Majority Holders and (z) the Company may utilize such delay no more than once in
each 365-day period;
(e) Cause all such Registrable Securities registered pursuant thereunder to
be listed on each securities exchange or market on which similar securities
issued by the Company are then listed;
(f) Prevent the issuance of any stop order or other order suspending the
effectiveness of such registration statement and, if such order is issued, to
obtain the withdrawal thereof at the earliest possible time; and to notify the
Holders of the issuance of such order and the resolution thereof; and
(g) Comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first month after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
1.7 Standstill Agreement. In the event that the Company shall have given
the Holders a Standstill Notice under Section 1.6(d) above, then each Holder
agrees that such Holder shall not sell or otherwise transfer pursuant to the
prospectus covered by the registration statement which is the subject of the
Standstill Notice any Registrable Securities or any rights to the Registrable
Securities during the Delay Period as defined in Section 1.6(d).
1.8 Registration Statement. The Company represents and warrants to, and
covenants and agrees with, the Holder(s) that (A) the Company meets the
requirements for the use of Form S-3 for registration of the Registrable
Securities for resale by the Holder(s), and (B) the registration statement
(including any amendments or supplements thereto and prospectuses contained
therein), at the time it is first filed with the Commission, at the time it is
ordered effective by the Commission, and at all time during which it is required
to be effective hereunder (and each such amendment and supplement at the time it
is filed with the Commission, and at all times during which it is available for
use in connection with the offer and sale of Registrable Securities) shall not
contain any 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 in which they were made, not misleading.
1.9 Trading Practices. During the Registration Period, the Company shall
not bid for or purchase any Common Stock or any right to purchase Common Stock,
or attempt to induce any person to purchase any such security or right if such
bid, purchase or attempt would in any way limit the right of the Holders to sell
Registrable Securities by reason of the limitations of Regulation M under the
Exchange Act.
1.10 Indemnification.
(a) The Company will indemnify, defend and hold harmless each Holder, each
of its officers, directors, employees, agents and representatives and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification, or compliance
has been effected pursuant to this Section 1, and each underwriter, if any, and
each person who controls within the meaning of Section 15 of the Securities Act
any underwriter, against all expenses, claims, losses, damages, and liabilities
(or actions, proceedings, or settlements in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) and any amendment or
supplement thereto incident to any such registration, qualification, or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification, or
compliance, and will reimburse each such Holder, each of its officers,
directors, employees, agents and representatives and each person controlling
such Holder, each such underwriter, and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such claim, loss,
damage, liability, or expense arises out of or is based on any untrue statement
or omission based upon written information furnished to the Company by such
Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by him are included in
the securities as to which such registration, qualification, or compliance is
being effected, indemnify the Company, each of its directors, officers,
partners, legal counsel, and accountants and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, each other such Holder, and each of their officers, directors,
and partners, and each person controlling such Holder, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular, or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, and will reimburse the Company and such Holders, directors,
officers, employees, agents and representatives, persons, underwriters, or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability, or action, in each case to the extent, but only to the extent that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular,
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder for the purpose of inclusion in such
registration statement, prospectus or other document; provided, however, that
the obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld); and provided further,
however, that no Holder shall be liable under this Section 1.10(b) for any
amount in excess of the net proceeds to such Holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Each party entitled to indemnification under this Section 1.10 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such defense
at such party's expense; provided, however, that the Indemnified Party shall
have the right to retain its own counsel with the fees and expenses to be paid
by the Indemnifying Party, if the representation by the Indemnifying Party's
counsel of the Indemnified Party and 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. In such event, the Company shall not be required to pay for more
than one separate legal counsel for the Holders in each jurisdiction. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 1.10, to
the extent such failure is not materially prejudicial. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 1.10 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.
(e) 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, as between the underwriter and any party, the
provisions in the underwriting agreement shall control.
1.11 Information by Holder. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder, if any, as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in this Section 1.
1.12 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Registrable Securities to the public without registration, the Company agrees to
use its best efforts to:
(a) Make and keep public information regarding the Company available as
those terms are understood and defined in Rule 144 under the Securities Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.
(d) Use its best efforts to facilitate the sale of the Registrable
Securities to the public, without registration under the Securities Act,
pursuant to Rule 144 under the Securities Act, provided that this shall not
require the Company to file reports under the Securities Act and the Exchange
Act at any time prior to the Company's being otherwise required to file such
reports.
1.13 Transfer or Assignment of Registration Rights. The rights to cause the
Company to register securities granted to a Holder by the Company under this
Section 1 may be transferred or assigned by a Holder to any transferee or
assignee of Registrable Securities, provided that the Company is given written
notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided further, that the transferee or
assignee of such rights assumes the obligations of such Holder under this
Section 1.
1.14 Delay of Registration. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.15 Termination of Registration Rights. The right of any Holder to
register such Holder's Registrable Securities under Sections 1.2 or 1.3 shall
terminate on the earlier of: (a) the end of the Registration Period or (b) the
sale or other disposition by such Holder of all of such Holder's Registrable
Securities, provided that this clause (b) shall not limit the rights of any
assignee of such Holder during the Registration Period.
SECTION 2
Covenants of the Company
2.1 Basic Financial Information. The Company will furnish the following
reports to each Holder of 25 percent (25%) of the Registrable Securities:
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within ninety (90) days thereafter, a consolidated
balance sheet of the Company and its subsidiaries, if any, as at the end of such
fiscal year, and consolidated statements of income and sources and applications
of funds of the Company and its subsidiaries, if any, for such year, prepared in
accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and certified by independent public
accountants of recognized national standing selected by the Company. To such
financial statements there shall be appended a discussion and analysis, in
reasonable detail, of such financial statements and the general business
condition and prospects of the Company by management of the Company so as to
assist the recipients in understanding and interpreting such financial
statements.
(b) As soon as practicable after the end of each fiscal quarter of the
Company, and in any event within forty-five (45) days thereafter, a consolidated
balance sheet of the Company and its subsidiaries, if any, as at the end of such
fiscal quarter, and consolidated statements of income and sources and
applications of funds of the Company and its subsidiaries, if any, for such
year, prepared in accordance with generally accepted accounting principles
consistently applied and setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail. To such
financial statements there shall be appended a discussion and analysis, in
reasonable detail, of such financial statements and the general business
condition and prospects of the Company by management of the Company so as to
assist the recipients in understanding and interpreting such financial
statements.
(c) As long as the Company is subject to the reporting requirements of the
Exchange Act (which shall include any successor federal statute), in lieu of the
financial information required pursuant to Sections 2.1(a) and (b), copies of
its Annual Reports on Form 10-K and its Quarterly Reports on Form 10-Q,
respectively.
2.2 Additional Information and Rights.
(a) As soon as practicable after transmission or occurrence and in any
event within ten (10) days thereof, the Company will deliver to each Holder
copies of any reports or communications delivered to any class of the Company's
security holders or broadly to the financial community, including any filings by
the Company with any securities exchange, the Commission or the National
Association of Securities Dealers, Inc.
(b) The provisions of Section 2.1 and this Section 2.2 shall not be in
limitation of any rights which any Holder may have with respect to the books and
records of the Company and it subsidiaries, or to inspect their properties or
discuss their affairs, finances and accounts, under the laws of the
jurisdictions in which they are incorporated.
(c) Anything in this Section 2 to the contrary notwithstanding, no Holder
by reason of this Agreement shall have access to any trade secrets or
confidential information of the Company. Each Holder hereby agrees to hold in
confidence and trust and not to misuse or disclose any confidential information
provided pursuant to this Section 2.2.
SECTION 3
Representations of Securityholder
The Securityholder hereby represents and warrants to the Company that:
3.1 Purchase Entirely for Own Account. The Shares will be acquired for
investment for the Securityholder's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof in violation
of the registration requirements of the Securities Act, and the Securityholder
has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the registration requirements of the
Securities Act. By executing the Purchase Agreement, the Securityholder further
represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Shares.
3.2 Investment Experience. The Securityholder acknowledges that it is able
to fend for itself, can bear the economic risk of its investment, and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Shares. The
Securityholder also represents it has not been organized for the purpose of
acquiring the Shares.
3.3 Accredited Investor. The Securityholder is an "accredited investor"
within the meaning of the Commission Rule 501 of Regulation D, as presently in
effect.
3.4 Restricted Securities. The Securityholder understands that the Shares
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. In this connection, the Securityholder
represents that it is familiar with Commission Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act.
3.5 Legends. It is understood that the certificates evidencing the Shares
may bear legends required by applicable federal and state securities laws as
well as the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
SECTION 4
Miscellaneous
4.1 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the
registration of the Registrable Securities and no party shall be liable or bound
to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
4.2 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. 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,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.3 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Minnesota, without regard to its choice-of-laws or
conflicts-of-law rules.
4.4 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.
4.5 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively, and either for
a specified period of time or indefinitely), with the written consent of the
Company and the holders of a majority of the Registrable Securities on the date
of such amendment or waiver; provided, however, that no such amendment or waiver
shall reduce the aforesaid percentage of the holders of which are required to
consent to any waiver or supplemental agreement without the consent of the
record or beneficial holders of all of the securities. Any amendment or waiver
effected in accordance with this Section shall be binding upon each Holder of
any Registrable Securities purchased under the Purchase Agreement at the time
outstanding, each future holder of all such Registrable Securities, and the
Company. Upon the effectuation of each such amendment or waiver, the Company
shall promptly give written notice thereof to the record holders of the Shares
and the Registrable Securities who have not previously consented thereto in
writing.
4.6 Information Confidential. Each Holder acknowledges that the information
received by them pursuant hereto may be confidential and for its use only, and
it will not use such confidential information in violation of the Exchange Act
or reproduce, disclose or disseminate such information to any other person
(other than its employees or agents having a need to know the contents of such
information, and its attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company has made such information
available to the public generally or such Holder is required to disclose such
information by a governmental body.
4.7 Delays or Omissions. No delay or omission to exercise any right, power,
or remedy accruing to any Holder upon any breach, default or noncompliance of
the Company under this Agreement shall impair any such right, power, or remedy,
nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of any similar breach, default or
noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent, or approval of any kind or character on the Holders' part of
any breach, default or noncompliance under this Agreement or any waiver on the
Holders' part of any provisions or conditions of this Agreement must be in
writing and shall be effective only to the extent specifically set forth in such
writing, and that all remedies, either under this Agreement, the Articles of
Incorporation, Bylaw, or otherwise afforded to any Holder shall be cumulative
and not alternative.
4.8 Separability. Any invalidity, illegality, or limitation of the
enforceability with respect to any Holder of any one or more of the provisions
of this Agreement, or any part thereof, whether arising by reason of the law of
any such Holder's domicile or otherwise, shall in no way affect or impair the
validity, legality, or enforceability of this Agreement with respect to other
Holders. In case any provision of this Agreement shall be invalid, illegal, or
unenforceable, it shall to the extent practicable, be modified so as to make it
valid, legal and enforceable and to retain as nearly as practicable the intent
of the parties, and the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
4.9 Succession to Rights. Except as otherwise expressly provided herein,
the rights and powers of each Holder hereunder are granted to such Holder as an
owner of Registrable Securities. Consequently, the parties agree that such
rights and powers exist separately and distinctively with respect to each share
of Registrable Securities, and as to each such share shall pass with it so that
any owner of any such share whether becoming such by transfer, assignment, or
operation of law or otherwise, shall have all of the rights and powers of such
Holder hereunder, and shall be entitled to exercise them in full, with or
without the agreement or consent of other owners of Registrable Securities, and
no transfer or assignment shall divest such Holder or any subsequent owner of
Registrable Securities of such rights and powers unless all Registrable
Securities owned by such persons is transferred to assigned.
4.10 Notices. All notices, requests, demands and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been duly
given if delivered by hand or by registered or certified mail, postage prepaid,
return receipt requested, but only upon receipt of such return receipt, as
follows:
if to the Securityholder,
Genzyme Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Legal Officer
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to,
Xxxxxxx X. Xxxxxxx
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
if to the Company,
Techne Corporation
000 XxXxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to,
Xxxxxxxxxx & Xxxxx
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All Notices shall be deemed received on the date
of delivery or, if mailed, on the date appearing on the return receipt therefor.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Rights Agreement effective as of the day and year first above written.
TECHNE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx, President
GENZYME CORPORATION
By: /s/ Xxxxx X. XxXxxxxxx
---------------------------
Xxxxx X. XxXxxxxxx, Executive
Vice President, Finance and
Chief Financial Officer
