REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, made as of February 5, 1998, is by and
between Vysis, Inc., a Delaware corporation (the "Company"), and
Amoco Technology Company, a Delaware corporation (the
"Stockholder").
This Agreement is made in connection with the registration
for sale to the public of shares of common stock, $.001 par
value, of the Company (the "Common Stock") pursuant to a
registration statement on Form S-1 and any amendments thereto
(the "Registration Statement") originally filed with the
Securities and Exchange Commission (the "Commission") on October
17, 1997 (File No. 333-38109) (the "Initial Public Offering").
Prior to the Initial Public Offering, the Stockholder owned
approximately 100% of the issued and outstanding shares of common
stock of the Company and upon consummation of the Initial Public
Offering the Stockholder will own approximately 63% of the
outstanding Common Stock.
The Parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following respective meanings:
Affiliate Of any Person is any Person which, directly
or indirectly, controls or is controlled by or is under common
control with, such Person. A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses,
directly or indirectly, power (i) to vote 10% or more of the
securities having ordinary voting power for the election of
managing general partners or directors (or Persons holding
equivalent positions) of such Person (or, at the time
extraordinary voting powers are available, to vote 10% or more of
the securities having extraordinary voting power); or (ii) to
direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
Exchange Act - The Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a
reference to a particular section thereof shall be deemed to
include a reference to the comparable section, if any, of any
such similar federal statute.
Holder - The Stockholder and any Person to whom it has
assigned rights hereunder as permitted by Section 10(c).
Person - Any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or
any department or agency thereof.
Registrable Securities - The Common Stock owned by the
Stockholder on the date hereof, Common Stock issuable to the
Stockholder upon conversion of the Company's outstanding shares
of Series A Preferred Stock or Series B Preferred Stock and any
Common Stock or other securities which may be issued or
distributed in respect thereof by way of or in connection with a
stock dividend or stock split or other distribution,
recapitalization, reclassification, combination of shares,
merger, consolidation or other reorganization. As to any
particular Registrable Securities, such Registrable Securities
shall cease to be Registrable Securities when they cease to be
owned by a Holder.
Securities Act - The Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a
reference to a particular section thereof shall be deemed to
include a reference to the comparable section, if any, of any
such similar federal statute.
Shelf Registration Statement - A registration statement
on Form S-3 filed pursuant to Rule 415 under the Securities Act.
2.(a) Demand Registration. In the event that following 180
days after the effective date of the Registration Statement any
Holder or Holders desire to sell shares of Registrable Securities
owned by such Holder or Holders then upon the written request of
any Holder or Holders requesting that the Company effect the
registration under the Securities Act of all or part of such
Holder's or Holders' Registrable Securities and specifying the
intended method of disposition thereof, but subject to the
limitations set forth herein, the Company will promptly give
written notice of such requested registration to all other
Holders of Registrable Securities, and the Company shall file
with the Commission as promptly as practicable after sending such
notice, and use its best efforts to cause to become effective, a
registration statement under the Securities Act registering the
offering and sale of:
(i) the Registrable Securities which the Company has
been so requested to register by such Holder or Holders; and
(ii) all other Registrable Securities which the
Company has been requested to register by any other Holder
thereof by written request given to the Company within 15
days after the giving of such written notice by the Company
(which request shall specify the intended method of
disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in
accordance with the intended method thereof as aforesaid) of the
Registrable Securities so to be registered; provided, that the
Company shall not be obligated to file a registration statement
relating to any registration request under this Section 2(a)
(A) unless the aggregate requests by the Holder or Holders for
such registration cover not less than an aggregate of 1,000,000
shares (adjusted for any stock splits, reverse stock splits or
combination of shares) or (B) with respect to more than one such
registration per calendar year; provided that a request may cover
fewer than 1,000,000 shares (but not less than 500,000 shares) if
the total number of shares of Registrable Securities then
outstanding is less than 1,000,000.
A request for registration under this Section 2(a) shall not
be counted for purposes of the foregoing limitation (i) unless a
registration statement has become effective and has been kept
continuously effective for the period required under Section
4(b), (ii) if after it has become effective, use of such
registration statement is suspended by any stop order, injunction
or other order or requirement of the Commission or other
governmental agency or court, (iii) if no Registrable Securities
are sold within the period during which the registration
statement has been kept continuously effective as required under
Section 4(b).
A Holder may, in connection with a request for registration
under this Section 2(a), specify that the Registrable Securities
are to be sold on a delayed or continuous basis, in which case
the Company shall file a Shelf Registration Statement with
respect thereto; provided, that each of the following conditions
has been satisfied: (i) the Company is eligible to file a
registration statement on Form S-3, (ii) a period of six years
has elapsed since the effective date of the Registration
Statement and (iii) the total number of Registrable Securities
outstanding constitutes 30% or less of the total number of shares
of Common Stock outstanding.
(b) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2 involves an underwritten
offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested
to be included in such registration (including securities of the
Company which are not Registrable Securities) exceeds the number
which can be sold in such offering, the Company will include in
such registration only the Registrable Securities requested to be
included in such registration. In the event that the number of
Registrable Securities requested to be included in such
registration exceeds the number which, in the opinion of such
managing underwriter, can be sold, the number of such shall be
allocated first to the Stockholder and its Affiliates, and then
pro rata among all other requesting Holders on the basis of the
relative number of shares of Registrable Securities originally
requested to be included by each such Holder.
(c) Limitation on Registration Rights.
(i) If a request for registration pursuant to
Section 2(a) hereof is made within 30 days prior to the
conclusion of the Company's then current fiscal year, or
within 40 days after the end of a fiscal year, the Company
shall not be required to file a registration statement until
such time as the Company receives its audited financial
statements for such fiscal year.
(ii) The Company shall be entitled to postpone for a
reasonable period of time (not to exceed 90 days, which may
not thereafter be extended without the mutual agreement of
the Company and the Holder or Holders requesting
registration) the filing of any registration statement
otherwise required to be prepared and filed by it pursuant
to Section 2(a) hereof if, at the time it receives a request
for such registration, (w) the Company is conducting or
about to conduct an offering of any class of its securities
and the Company is advised by the investment banker or
financial advisor engaged by the Company to advise the
Company thereon that such offering would be affected
adversely by the registration so demanded and the Company
shall have furnished to the Holder or Holders of Registrable
Securities requesting such registration an Officers'
Certificate to that effect, (x) the Company is in possession
of material information that has not been disclosed to the
public and the Company deems it advisable not to disclose
such information in the registration statement, (y) the
Company is engaged in any active program for repurchase of
its Common Stock or (z) the board of directors of the
Company shall determine in good faith that such offering
will interfere with a pending or contemplated financing,
merger, acquisition, sale of assets, recapitalization or
other similar corporate action of the Company and the
Company shall have furnished to the Holder or Holders of
Registrable Securities requesting such registration an
Officers' Certificate to that effect. The Company may only
exercise its right to postpone the filing of registration
statement under this Section 2(c)(ii) once in any calendar
year. In the event of the exercise by the Company of such
postponement right, it shall furnish the requesting Holders
with an estimate as to when the circumstances permitting the
Company to postpone such filing shall cease to exist and
thereafter give the Holders prompt notice of such cessation.
After such period of postponement the Company shall effect
such registration as promptly as practicable without further
request from the Holder or Holders of Registrable
Securities, unless such request has been withdrawn.
(iii) Except as otherwise provided herein, any request
by a Holder or Holders for registration of Registrable
Securities pursuant to Section 2(a) hereof, which is
subsequently withdrawn prior to the registration statement
becoming effective, shall not constitute a registration
statement for purposes of determining the number of
registrations to which the Holder of such Registrable
Securities is entitled pursuant to Section 2(a); provided,
however, that the Holder of such Registrable Securities
shall reimburse the Company for all expenses incurred,
including, without limitation, reasonable fees and expenses
of the Company's attorneys, accountants and investment
bankers, in connection with the preparation and filing, if
filed, of such registration statement, unless such with-
drawal is the result of a postponement by the Company under
Section 2(c)(ii).
(d) In connection with any request for registration under
this Section 2 involving an underwritten offering, the requesting
Holders shall have the right to select the underwriter or
underwriters with the consent of the Company, which consent shall
not be unreasonably withheld.
3.(a) Incidental Registration. If the Company shall at any
time propose to file a registration statement under the Securi-
ties Act for an offering of Common Stock of the Company for cash
(other than an offering relating to (i) a business combination
that is to be filed on Form S-4 under the Securities Act (or any
successor form thereto) or (ii) an employee benefit plan or
(iii) securities of the Company convertible into Common Stock
where no separate consideration is received by the Company for
such Common Stock), the Company shall provide prompt written
notice of such proposal to all Holders of Registrable Securities
of its intention to do so and of such Holders' rights under this
Section 3 and shall use its reasonable efforts to include such
number or amount of Registrable Securities in such registration
statement, which the Company has been so requested to register by
the Holders thereof, which request shall be made to the Company
within 10 business days after the Holder receives notice from the
Company of such proposed registration; provided, that (i) if, at
any time after giving written notice of its intention to register
any securities and prior to the effective date of the registra-
tion statement filed in connection with such registration, the
Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice
of such determination to each Holder of Registrable Securities
and, thereupon, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration
(but not from its obligation to pay the registration expenses
referred to in Section 5 incurred in connection therewith), and
(ii) if such registration involves an underwritten offering, all
Holders of Registrable Securities requesting to be included in
the Company's registration must sell their Registrable Securities
to the underwriters selected by the Company on the same terms and
conditions as apply to the Company, with such differences,
including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary
and secondary offerings. The Holders shall have the right to
revoke their election to have their shares included in such
registration at any time prior to the filing of the registration
statement.
(b) Priority in Incidental Registrations. If a registra-
tion pursuant to this Section 3 involves an underwritten offering
and the managing underwriter advises the Company in writing that,
in its opinion, the number of securities to be included in such
registration exceeds the number which can be sold in such
offering, so as to be likely to have a significant adverse effect
on such offering as contemplated by the Company (including the
price, timing or distribution of which the Company proposes to
sell such securities), then the Company will include in such
registration (i) first, 100% of the securities the Company
proposes to sell, (ii) second, to the extent of the number of
Registrable Securities requested to be included in such
registration which, in the opinion of such managing underwriter,
can be sold without having the significant adverse effect
referred to above, the number of Registrable Securities which the
Holders have requested to be included in such registration, such
amount to be allocated first to the Stockholder and its
Affiliates, and then pro rata among all requesting Holders on the
basis of the relative number of shares of Registrable Securities
initially requested to be included by each such Holder.
4. Registration Procedures. Whenever a Holder or Holders
have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its best efforts
to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable
Securities (which shall be effected within 30 days of a
request in the case of a registration under Section 2(a))
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 Registrable
Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents
shall be subject to review of such counsel;
(b) prepare and file with the 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
such period as is necessary to complete the disposition of
all securities covered by such registration statement during
such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in
such registration statement; provided, however, that such
period shall not exceed 90 days unless the registration
statement is a Shelf Registration Statement;
(c) furnish to each seller of Registrable Securities
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 Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities 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 that may
be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the
Registrable Securities 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,
(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 Registrable Securities,
at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, (i) 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, in light of the circumstances
under which made, not misleading, and at the request of any
such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make
the statements therein, in light of the circumstances under
which made, not misleading; or (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration
statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of
such purposes; provided, however, that the Company shall not
be required to notify a seller of Registrable Securities of
the occurrence of any event described in clause (i) hereof
that relates to a prospectus contained in a Shelf
Registration Statement unless within the 30 days prior
thereto the seller has given the Company notice of its
intention to offer or sell Registrable Securities pursuant
to Section 5(e) below;
(f) cause all such Registrable Securities to be listed
on each securities exchange on which securities issued by
the Company that are of the same class as the Registrable
Securities are then listed;
(g) provide a transfer agent and registrar for all
such Registrable Securities not later than the effective
date of such registration statement;
(h) make available for inspection by any seller of
Registrable Securities, 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 certified public accountants to supply all
information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection
with such registration statement;
(i) use its best efforts to cause such Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such
Registrable Securities;
(j) obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and
covering such matters of the type customarily covered by
"cold comfort" letters as the seller or sellers of a
majority of the Registrable Securities being sold reasonably
request;
(k) if underwriters are engaged by the Company in
connection with any registration referred to in this
Agreement (such underwriters shall be reasonably
satisfactory to the Holders of a majority of the Registrable
Securities covered by such registration), the Company shall
provide indemnification, representations, covenants,
opinions and other assurance to the underwriters in form and
substance reasonably satisfactory to such underwriters; and
(l) 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
Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
(m) obtain an opinion of outside counsel (or inside
counsel if satisfactory to each underwriter) for the Company
covering such matters of the type customarily covered in
opinions of issuer's counsel as the seller or sellers of a
majority of the Registrable Securities being sold reasonably
request;
(n) file the reports required by the Exchange Act for
companies registered under such act and otherwise comply
with all applicable rules and regulations of the Commission;
(o) keep the sellers advised as to the initiation and
progress of any demand or other registration; and
(p) promptly deliver to the Holders copies of all
public announcements made by the Company regarding
disposition, acquisitions or other material transactions
involving the Company.
5. Holders' Obligations in Registration.
(a) Each Holder agrees, that, upon receipt of notice
of an event described in Section 4(e) above, such Holders
will immediately discontinue disposition of the Registrable
Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by
Section 4(e) or until it is advised in writing by the
Company that the use of the prospectus may be resumed, and
has received copies of any additional or supplemental
filings which are incorporated by reference in the
prospectus. If so directed by the Company, such Holder
will, or will request the managing underwriter or agent, if
any, to deliver to the Company at the Company's expense all
copies (other than permanent file copies) then in such
Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of
such notice.
(b) In respect of a registration pursuant to this
Agreement, each Holder of Registrable Securities covered by
a registration statement shall advise the Company
immediately if such Holder knows or becomes aware of any
matter which such Holder believes may result in the
inclusion in a prospectus contained in such registration
statement of an untrue statement of a material fact or the
omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
shall promptly notify the Company and assist the Company in
preparation and filing with the Commission of any such
amendments or supplements to said registration statement
that may be necessary or appropriate to permit the
prospectus included therein to be used under the Securities
Act during the period during which the prospectus must be
delivered in connection with the offering and sale of the
Registrable Securities.
(c) The Company may require each Holder of Registrable
Securities as to which any registration is being effected to
furnish to the Company such information regarding the
distribution of such Registrable Securities and such other
information relating to the Holder and its ownership of
Registrable Securities as the Company may from time to time
reasonably request and each Holder agrees to furnish the
Company with such information and to cooperate with the
Company as necessary to enable the Company to comply with
the provisions of this Agreement.
(d) In the case of any underwritten public offering by
the Company of any shares of Common Stock or securities
convertible into shares of Common Stock, each Holder of
Registrable Securities agrees, if and to the extent
requested in writing by the managing underwriter of such
offering, not to effect any public sale or distribution of
the Common Stock of the Company (except as part of such
underwritten offering), during the period ending on the
earlier of (i) 90 days after the effective date of the
registration statement relating to such underwritten public
offering and (ii) the date such sale or distribution is
permitted by such managing underwriter.
(e) In the event that a Shelf Registration Statement
has been filed and declared effective with respect to any
Registrable Securities, the Holder of such Registrable
Securities agrees to notify the Company of any proposed
offer or sale thereof at least two business days prior to
the proposed offer or sale. Such notice shall include such
information relating to the Holder and the proposed
distribution of Registrable Securities by the Holder as
shall be required to be included in the prospectus, to the
extent such information has not already been included
therein. If within such two business day period the Company
advises the Holder furnishing such notice that the Company
is in possession of material information that has not been
disclosed to the public and the Company deems it advisable
not to disclose such information in the prospectus, then the
Holder furnishing such notice shall postpone the
contemplated offering or sale until the earlier to occur of
(i) the date as of which the Company is no longer in
possession of such undisclosed material information (notice
of which the Company agrees to promptly furnish to the
Holder)or (ii) the date which is 30 days following the
receipt by the Company of the notice of proposed offer or
sale. A Holder furnishing a notice of proposed offer or
sale to the Company pursuant to this Section 5(e) shall
promptly notify the Company of the termination of such
offering or completion of such sale.
6. Registration Expenses. All expenses incidental to the
Company's performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees,
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 and all independent
certified public accountants, underwriters (excluding discounts
and commissions) and other persons retained by the Company,
including, without limitation, all salaries and expenses of the
Company's 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 securities issued by the Company that are of
the same class as the Registrable Securities are then listed will
be borne by the Company, except that underwriting discounts and
commissions relating to the sale of Registrable Securities will
be the responsibility of each seller, and each seller shall be
responsible for all fees and disbursements of their own counsel.
7. Term. This Agreement shall terminate at such time as
the shares of Registrable Securities owned by the Holders of
Registrable Securities constitute less than 5% of the issued and
outstanding shares of Common Stock of the Company.
8. Indemnification. The provisions of this Section 8 shall
be applicable in respect of each registration pursuant to this
Agreement.
(a) The Company shall hold harmless and indemnify each
Holder of Registrable Securities, any underwriter or agent
participating in an offering and their respective Affiliates
(including any director, officer, employee, agent or controlling
Person of any of the foregoing), from and against all losses,
claims, damages, liabilities and expenses (including reasonable
attorneys' fees and expenses of investigation) incurred by such
indemnified party pursuant to any actual or threatened third-party
action, suit, proceeding or investigation (including
reasonable attorneys' fees and expenses of investigation) arising
out of or based upon any untrue or alleged untrue statement of
material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary
prospectus 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 the case of a prospectus, in light of
the circumstances under which they were made) not misleading,
except insofar as the same arise out of or are based upon any
such untrue statement or omission based upon information with
respect to such Holder furnished in writing to the Company by
such Holder expressly for use therein.
(b) In connection with any registration statement in which
a Holder of Registrable Securities is participating, each such
Holder will furnish to the Company in writing such information,
as the Company reasonably requests for use in connection with any
such registration statement or prospectus, and shall severally
and not jointly hold harmless and indemnify each other Holder of
Registrable Securities, any underwriter or agent participating in
an offering, the Company and its Affiliates (including any
director, officer, employee, agent, or controlling Person of each
of the foregoing) from and against any losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees
and reasonable expenses of investigation) incurred by such
indemnified party pursuant to any actual or threatened third-party
action, suit, proceeding or investigation (including
reasonable attorneys' fees and expenses of investigation) arising
out of or based upon any untrue or alleged untrue statement of a
material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary
prospectus or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein (in case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or
omission is contained in or failed to be contained in any
information with respect to such Holder furnished in writing by
such Holder specifically for inclusion in any prospectus or
registration statement; provided, however, that the liability of
such indemnifying party under this Section 8(b) shall be limited
to the amount of net proceeds received by such indemnifying party
in the offering giving rise to such liability.
(c) The obligation of the Company under Section 8(a) and of
the Holders of Registrable Securities under Section 8(b) to hold
harmless and indemnify any underwriter or agent who participates
in an offering or any of their respective Affiliates shall be
conditioned on the underwriting or agency agreement containing an
agreement by such underwriter or agent to hold harmless and
indemnify each of the Company, the Holders of Registrable
Securities participating in the offering, and their respective
Affiliates (including any director, officer, employee, agent, or
controlling Person of each of the foregoing) from and against any
losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees and expenses of investigation)
incurred by such indemnified parties pursuant to any actual or
threatened third-party action, suit, proceeding or investigation
(including reasonable attorneys' fees and expenses of investiga-
tion) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any registration
statement, any amendment or supplement thereof, any prospectus or
preliminary prospectus or any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading, to
the extent, but only to the extent, that such untrue statement or
omission is contained or failed to be contained in any informa-
tion with respect to such underwriter or agent furnished in
writing by such underwriter or agent specifically for inclusion
in any prospectus or registration statement.
(d) The indemnity provisions in Sections 8(a) and 8(b)
above are subject to the condition that, insofar as they relate
to any untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in a preliminary prospectus or
prospectus but eliminated or remedied in any amended prospectus,
such indemnity provisions shall not inure to the benefit of any
indemnified Person, if the Company has previously and in a timely
manner delivered sufficient copies of such amended prospectus to
such indemnified Person and if a copy of such amended prospectus
required to be sent or given in accordance with any applicable
law or regulation was not furnished by such indemnified Person to
the person asserting the loss, liability, claim or damage.
(e) Promptly after receipt by an indemnified party under
this Section 8 of any notice of the commencement of any lawsuit
or other proceeding or investigation thereof, such indemnified
party will, if a claim in respect thereof is to be made against
the indemnifying parties hereunder, notify in writing the
indemnifying parties of the commencement thereof; but the
omission so to notify the indemnifying parties will not relieve
the indemnifying parties from any liability which they may have
to any indemnified party, unless such failure to notify is
materially prejudicial to the indemnifying parties and materially
increases their risk of loss. In case any such lawsuit or other
proceeding or investigation shall be brought against any
indemnified party and such indemnified party shall notify the
indemnifying parties of the commencement thereof, the
indemnifying parties shall be entitled to participate therein
and, unless in the opinion of counsel to the indemnified party a
conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to the extent that it
shall wish, to assume the defense thereof, with counsel reason-
ably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to
the indemnifying parties in such action). In any such
proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying
parties shall have failed to assume the defense of such action or
proceeding or shall have failed to employ counsel reasonably
satisfactory to such indemnified party in any action or
proceeding; or (iii) the named parties (including any impleaded
parties) to any such action or proceeding include both such
indemnified party and the indemnifying parties, and such
indemnified party shall have been advised by counsel in writing
(with a copy to the indemnifying parties) that there may be one
or more defenses available to such indemnified party or other
indemnified parties or other indemnified parties which are
different from or additional to those available to the
indemnifying parties, then, such separate counsel shall be at the
expense of the indemnifying parties and the indemnifying parties
shall not have the right to assume the defense of such action or
proceeding on behalf of such indemnified person. After notice
from the indemnifying parties to such indemnified party of their
election so to assume the defense thereof, and provided that the
exception in the foregoing sentence does not apply, the
indemnifying parties shall not be liable to such indemnified
party under these indemnification provisions for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. In any event, unless there exists a conflict
among indemnified parties, the indemnifying parties shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding. The indemnifying parties
shall not be subject to any liability for any settlement made
without their consent.
(f) In order to provide for the just and equitable
contribution in circumstances under which the indemnity provided
for in this Section 8 is for any reason held to be unenforceable
by the indemnified parties though applicable in accordance with
its terms, each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
any losses, claims, damages, liabilities or expenses of a nature
contemplated by such indemnity in such proportion as is
appropriate to reflect not only the relative benefits received by
the indemnifying parties and the indemnified parties, but also to
reflect the relative fault of the indemnifying and indemnified
parties 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;
provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this subsection (f) to the contrary,
no Holder shall be required to contribute any amount in excess of
the net proceeds received by such Holder from the offering to
which the losses, claims, damages, liabilities or expenses
relate.
The relative fault of such indemnifying and indemnified
parties shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material
fact, or omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses incurred by
such party in connection with investigating or defending such
claim
9. Participation in Underwritten Registrations. No person
may participate in any registration hereunder that is under-
written unless such person (a) agrees to sell such person'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 question-
naires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous.
(a) Remedies. Any person having rights under any provision
of 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.
(b) Amendment and Waivers. The provisions of this
Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company has obtained the written
consent of the Stockholder and its Affiliates (to the extent they
are holders of Registrable Securities) and of Holders of at least
50% of the Registrable Securities held by any other Persons.
(c) Successors and Assigns. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto
will bind and inure to the benefit of the respective successors
and permitted assigns of the parties hereto whether so expressed
or not. A Holder shall be permitted to assign its rights
hereunder to any Person to whom it transfers any Registrable
Securities in a transaction not involving any public offering,
provided that (A)(i) the number of Registrable Securities so
transferred is not less than 1,000,000 shares (adjusted for any
stock split, reverse stock split or combination of shares) and
(ii) the assignee agrees with the Company in writing to be bound
by the provisions of this Agreement or (B) such Person is an
Affiliate of Stockholder.
(d) Severability. Whenever possible, each provision of
this Agreement will 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 this Agreement.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute
a part of this Agreement.
(g) Governing Law. The General Corporation Law of Delaware
will govern all issues concerning the relative rights of the
Company and the Holders of Registrable Securities. All other
questions concerning the construction, validity and inter-
pretation of this Agreement and the exhibits and schedules hereto
will be governed by the internal law, and not the law of
conflicts, of the State of Delaware.
(h) Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of
this Agreement will be in writing and will be deemed to have been
given when delivered personally or two days after deposit in the
mail, certified or registered mail, return receipt requested and
postage prepaid, to the recipient. Such notices, demands and
other communication will be sent to the Stockholder initially as
set forth below and to each other Holder of Registrable
Securities at such Holder's address as it appears in the records
of the Company (unless otherwise indicated by any such Holder to
the Company in writing) and to the Company at its principal
executive offices.
For ATC: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: President
with a copy to: Amoco Corporation
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Attorney
Corporate Law Department
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
VYSIS, INC.
By:
Name:
Title:
AMOCO TECHNOLOGY COMPANY
By:
Name:
Title:
