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Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
FOR
COMMON STOCK
Dated December 8, 1997
by and among
SPECTRA-PHYSICS LASERS, INC.
AND
SPECTRA-PHYSICS HOLDINGS USA, INC.
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REGISTRATION RIGHTS AGREEMENT FOR COMMON STOCK
This Registration Rights Agreement for Common Stock (the
"Agreement") is made and entered into as of December 8, 1997, by and between
Spectra-Physics Lasers, Inc., a Delaware corporation (the "Company") and
Spectra-Physics Holdings USA, Inc., a Delaware corporation ("Spectra-Physics
USA").
The Company desires to grant registration rights to
Spectra-Physics USA.
NOW, THEREFORE, for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions
As used in this Agreement, the following capitalized terms shall
have the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the Rules
promulgated under the Exchange Act.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" means (i) the common stock, par value $.01 per
share, of the Company and (ii) capital stock issued or issuable with respect to
the securities referred to in clause (i) by way of a stock dividend or stock
split, or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Demand Registration" has the meaning set forth is
Section 4(a) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering
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of any portion of the Registrable Securities covered by such Registration
Statement and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference in such
Prospectus.
"Registration Expenses" means the costs and expenses of all
registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to this Agreement
(including all federal and state registration and filing fees, printing and
engraving expenses, fees and disbursements of counsel for the Company and the
fees and expenses of the Company's independent public accountants (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such registration)), other than the costs and expenses of any holders whose
Registrable Securities are to be registered pursuant to this Agreement
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any attorneys, accountants or other representatives retained by
any such holders.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Registrable Securities" has the meaning set forth in
Section 2 of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Special Registration Statement" means a registration statement
on Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's employees or security holders.
"underwritten registration" or "underwritten offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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2. Registrable Securities. The securities entitled to the
benefits of this Agreement are the Registrable Securities. As used herein,
"Registrable Securities" means Common Stock held by Spectra-Physics USA or its
affiliates on the date hereof or Common Stock acquired hereafter by
Spectra-Physics USA or its affiliates; provided, however, that each share of
Common Stock shall cease to be a Registrable Security when (i) it has been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering it; (ii) it is distributed to the
public pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act; or (iii) it has otherwise been transferred and a new certificate
or other evidence of ownership for it and not subject to any stop transfer order
has been delivered by or on behalf of the Company and no other restriction on
transfer exists under the Securities Act.
3. Incidental Registration.
(a) Right to Include Common Stock. If the
Company at any time proposes to register any of its Common Stock under the
Securities Act (other than on a Special Registration Statement), whether or not
for sale for its own account, it will each such time give at least 30 days prior
written notice (the "Notice") to all holders of Registrable Securities of its
intention to file a registration statement under the Securities Act and of such
holders' rights under this Section 3. Upon the written request of any such
holders of Registrable Securities made within 15 days of the date of the Notice
(which request shall specify the aggregate number of the Registrable Securities
to be registered and will also specify the intended method of disposition
thereof), the Company will effect the registration under the Securities Act of
all Registrable Securities that the Company has been so requested to register by
the holders thereof (an "Incidental Registration"), to the extent required to
permit the public disposition (in accordance with such intended methods thereof)
of the Registrable Securities to be so registered; provided, that (i) if, any
time after giving written notice of its intention to register shares of Common
Stock and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register the Company's Common Stock, the Company shall 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 in connection therewith); (ii) if a
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registration requested pursuant to this Section 3 shall involve an underwritten
public offering, any holder of Registrable Securities requesting to be included
in such registration may elect, in writing at least 20 days prior to the
effective date of the registration statement filed in connection with such
registration, not to register such securities in connection with such
registration; and (iii) if, at any time after the 180-day or shorter period
specified in Section 3(b), the sale of the securities has not been completed,
the Company may withdraw from the registration on a pro rata basis (based on the
number of Registrable Securities requested by each holder of Registrable
Securities to be so registered) the Registrable Securities which the Company has
been requested to register and which have not been sold.
(b) Priority in Incidental Registrations. If a
registration pursuant to Section 3(a) involves an underwritten offering and the
managing underwriter advises the Company in writing that, in its opinion, the
total number of shares of Common Stock to be included in such registration,
including the Registrable Securities requested to be included pursuant to this
Section 3, exceeds the maximum number of shares of Common Stock specified by the
managing underwriter that may be distributed without adversely affecting the
price, timing or distribution of such shares of Common Stock, then the Company
shall include in such registration only such maximum number of Registrable
Securities which, in the reasonable opinion of such underwriter or underwriters,
can be sold in the following order of priority: (i) first, all of the shares of
Common Stock that the Company proposes to sell for its own account, if any, (ii)
second, the Registrable Securities of Spectra-Physics USA and its affiliates
requested to be included in such Incidental Registration, (iii) third, the
Registrable Securities of the other holder(s) of Registrable Securities
requested to be included in such Incidental Registration provided that such
amount shall be allocated among such holders on a pro rata basis based upon
their respective percentage of ownership of the total number of shares of Common
Stock then outstanding and (iv) the shares of Common Stock that other holders of
Common Stock have requested to be included in such Incidental Registration
provided that such amount shall be allocated among such holders on a pro rata
basis based upon their respective percentage of ownership of the total number of
shares of Common Stock then outstanding. Notwithstanding the foregoing, if an
Incidental Registration is an underwritten offering, the managing underwriter or
underwriters may select shares for inclusion, or exclude shares completely, in
such Incidental Registration on a basis other than
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a pro rata basis if, in the reasonable opinion of such underwriter or
underwriters, selection on such other basis, or inclusion of such shares, would
be material to the success of the offering.
(c) Expenses. The Company will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 3.
(d) Liability for Delay. The Company shall not
be held responsible for any delay in the filing or processing of a registration
statement which includes any Registrable Securities due to requests by holders
of Registrable Securities pursuant to this Section 3 nor for any delay in
requesting the effectiveness of such registration statement.
(e) Participation in Underwritten Registrations.
No holder of Registrable Securities may participate in any underwritten
registration hereunder unless such holder (i) agrees to sell his or its Common
Stock on the basis provided in any underwriting arrangements approved by the
persons who have selected the underwriter and (ii) accurately completes in a
timely manner and executes all questionnaires, powers of attorney, underwriting
agreements and other documents customarily required under the terms of such
underwriting arrangements.
4. Demand Registration
(a) Right to Demand Registration. Subject to
Section 4(b) below, at any time and from time to time, each of (I)
Spectra-Physics USA and its affiliates and (II) the holders of at least 50% of
the Registrable Securities may request registration (a "Demand Registration
Request") under the Securities Act of all or part of their Registrable
Securities (which Demand Registration Request shall specify the intended number
of Registrable Securities to be disposed of by such holder and the intended
method of disposition thereof); provided, that the Company may, if the Board of
Directors so determines in the exercise of its reasonable judgment that due to a
pending or contemplated acquisition or disposition or public offering or other
similar occurrence it would be inadvisable to effect such Demand Registration at
such time, defer such Demand Registration for a single period not to exceed 180
days. Within ten days after receipt of any such Demand Registration Request, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and will include in such registration all
Registrable Securities with respect to which the
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Company has received written requests for inclusion therein within 15 days after
the receipt of the Company's notice. All registrations requested pursuant to
this Section 4(a) are referred to herein as "Demand Registrations."
(b) Number of Demand Registrations. The holders
of Registrable Securities shall be entitled to make one or more Demand
Registration Requests at any time and from time to time; provided, that the
aggregate proceeds reasonably expected from the sale of Registrable Securities
(including Registrable Securities being sold by other holders of Registrable
Securities) pursuant to a Demand Registration are $2 million or more. The
Registration Expenses shall be borne by the Company.
(c) Priority on Demand Registration. If any of
the Registrable Securities proposed to be registered pursuant to a Demand
Registration are to be sold in a firm commitment underwritten offering and the
managing underwriter or underwriters of a Demand Registration advise the Company
and the holders of such Registrable Securities in writing that in its or their
reasonable opinion the number of shares of Common Stock proposed to be sold in
such Demand Registration exceeds the maximum number of shares specified by the
managing underwriter that may be distributed without adversely affecting the
price, timing or distribution of the Common Stock, the Company shall include in
such registration only such maximum number of Registrable Securities which, in
the reasonable opinion of such underwriter or underwriters can be sold in the
following order of priority: (i) first, the Registrable Securities requested to
be included in such Demand Registration held by the party delivering the Demand
Registration Request to the Company requesting such Demand Registration; (ii)
second, shares of Common Stock held by other holders requested to be included in
such Demand Registration, provided that such amount shall be allocated among
such other holders on a pro rata basis based upon their respective percentage of
ownership of the total number of shares of Common Stock then outstanding and
(iii) third, shares of Common Stock to be offered by the Company in such Demand
Registration.
5. Registration Procedures. If and whenever the Company is
required to effect or cause the registration of any Registrable Securities under
the Securities Act as provided in this Agreement, the Company will, as
expeditiously as reasonably possible:
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(a) prepare and file with the Commission a
registration statement with respect to such Registrable Securities, and use its
best efforts to cause such registration statement to become effective, provided,
however, that the Company may discontinue any registration of its securities
which is being effected pursuant to Section 3 herein at any time prior to the
effective date of the registration statement relating thereto;
(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 a period that will terminate when all Registrable
Securities covered by such registration statement have been sold (but not before
the expiration of the 40-day period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of such Registrable
Securities such number of copies of such registration statement and of each such
amendment and supplement thereof (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus), in conformity
with the requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(d) use its best efforts to register or qualify
such Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller shall
request, and do any and all other acts and things which may be necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject itself to general
taxation in any jurisdiction where it is not then so subject;
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(e) immediately notify each seller of any
Registrable Securities covered by such registration statement, at any time when
a prospectus relating thereto is required to be delivered under the Act within
the appropriate period mentioned in clause (b) of this Section 5, of the Company
becoming aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and within ten days prepare and furnish to all sellers a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; provided, however, that upon not less than five days' notice to the
holders of Registrable Securities, the Company may defer the filing of an
amendment or withdraw an amendment or may defer the effectiveness of an
amendment or the preparation of a supplement if the Board of Directors of the
Company determines, in good faith, that such amendment or supplement, or the
disclosure of any information in connection therewith, would (i) have a material
adverse affect upon the Company or its subsidiaries or (ii) substantially
interfere with a significant transaction of a type which would allow the Company
to postpone a Demand Registration under Section 4(a);
(f) use its best efforts to list such Registrable
Securities on each securities exchange on which similar securities issued by the
Company are then listed, and, if not so listed, on the NASD automated quotation
system ("NASDAQ"), and provide an independent transfer agent and registrar for
such Registrable Securities covered by such registration statement not later
than the effective date of such registration statement;
(g) furnish to each seller of Registrable
Securities covered by such registration statement a signed counterpart,
addressed to such seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated
the effective date of such registration statement (or, if such
registration involves an underwritten public offering, dated the
date of the closing under
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the underwriting agreement), reasonably satisfactory in form and
substance to the sellers of not less than 50% of such Registrable
Securities (and the managing underwriter, if any); and
(ii) a "comfort" letter, dated the effective date
of such registration statement (or, if such registration involves
an underwritten public offering, also dated the date of the
closing under the underwriting agreement), signed by the
independent public accountants who have certified the Company's
financial statements included in such registration statement,
covering such matters with respect to such registration statement
as are customarily covered in accountants' letters delivered to
the underwriters in underwritten offerings of securities as may
reasonably be requested by the sellers of not less than 50% of
such Registrable Securities (and the managing underwriter, if
any);
(h) make available for inspection by any seller
of such Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (individually, an "Inspector" and
collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility (collectively, the "Records"), and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement; provided, that any Records that are designated
by the Company in writing as confidential shall be kept confidential by the
Inspectors unless (A) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (B) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or by any regulatory authority having
jurisdiction. Each holder of Registrable Securities agrees that non-public
information obtained by it as a result of such Inspections shall be deemed
confidential and acknowledges its obligations under the Federal securities laws
not to trade any securities of the Company on the basis of material non-public
information; and
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(i) otherwise use its best efforts to 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 beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
The Company may require each seller of Registrable Securities as
to which any registration is being effected promptly to furnish to the Company
(i) an opinion of counsel for such seller dated the effective date of the
registration statement relating to such seller's Registrable Securities (or, if
such registration involves an underwritten public offering, dated the date of
the closing under the underwriting agreement), reasonably satisfactory in form
and substance to the Company (and the managing underwriter, if any) and (ii)
such information regarding the distribution of such Registrable Securities as
may be legally required. Such information shall be furnished in writing and
shall state that it is being furnished for use in the registration statement.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in clause (e) of this Section
5, such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5, and, if so directed by
the Company, such holder will 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 the Company's notice. In the event the Company shall give any such
notice, the period mentioned in clause (b) of this Section 5 shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (e) of this Section 5 and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5.
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6. Indemnification.
(a) Indemnification by the Company. The Company
hereby agrees to indemnify and hold harmless each holder of Registrable
Securities which shall have been registered under the Securities Act, and such
holder's officers, directors and agents and each other Person, if any, who
controls such holder within the meaning of the Securities Act and each other
Person (including underwriters) who participates in the offering of such
Registrable Securities against any losses, claims, damages, liabilities,
reasonable attorneys' fees, costs or expenses (collectively, the "Damages"),
joint or several, to which such holder or controlling Person or participating
Person may become subject under the Securities Act or otherwise, insofar as such
Damages (or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact made by the
Company or its agents contained in any registration statement under which such
Registrable Securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse such holder of Registrable Securities or such controlling Person or
participating Person in connection with investigating or defending any such
Damages or proceeding; provided, however, that the Company will not be liable in
any such case to the extent that any such Damages arise out of or are based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, said preliminary or final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such holder or such
controlling or participating Person, as the case may be, specifically for use in
the preparation thereof; or (ii) an untrue statement or alleged untrue
statement, omission or alleged omission in a prospectus if such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the prospectus which amendment or supplement is
delivered to such holder in a timely manner and such holder thereafter fails to
deliver such prospectus as so amended or supplemented prior to or concurrently
with the sale of such Registrable Securities to the Person asserting such
Damages.
(b) Indemnification by the Holders of Registrable
Securities Which Are Registered. It shall be a condition of the
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Company's obligations under this Agreement to effect any registration under the
Securities Act that there shall have been delivered to the Company an agreement
or agreements duly executed by each holder of Registrable Securities to be so
registered, whereby such holder agrees to indemnify and hold harmless the
Company, its directors, officers and agents and each other Person, if any, which
controls the Company within the meaning of the Securities Act against any
Damages, joint or several, to which the Company, or such other Person or such
Person controlling the Company may become subject under the Securities Act or
otherwise, but only to the extent that such Damages (or proceedings in respect
thereof) arise out of or are based upon any untrue statements or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
registration statement under which such Registrable Securities are registered
under the Securities Act, in any preliminary prospectus or final prospectus
contained therein or in any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which, in each such case, has been made in or omitted from such
registration statement, said preliminary or final prospectus or said amendment
or supplement in reliance upon, and in conformity with, written information
furnished to the Company by such holder of Registrable Securities specifically
for use in the preparation thereof. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above, with respect to information furnished in writing by
such Persons specifically for inclusion in any prospectus or registration
statement.
(c) Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 6; and
(ii) unless the indemnified party has been advised by its counsel that a
conflict of interest exists between such indemnified and indemnifying parties
under applicable standards of professional responsibility, with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will
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not be unreasonably withheld). No indemnifying party will consent to the entry
of any judgment or enter into any settlement which 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 of such claim or
litigation; provided, however, that no indemnifying party will consent to the
entry of any judgment or enter into any settlement (other than for the payment
of money only) without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the
indemnification provided for in the preceding Sections 6(a) or 6(b) is
unavailable to an indemnified party in respect of any Damages referred to
therein, the indemnifying party shall contribute to the amount paid or payable
by the indemnified party as a result of such Damages in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including 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 action; provided,
however, that in no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the difference
between the dollar amount of the proceeds received by such holder upon the sale
of the Registrable Securities giving rise to such contribution obligation and
all amounts previously contributed by such holder with respect to such Damages.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the
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Securities Act) shall be entitled to contribution from any Person who was not
guilty of fraudulent misrepresentation.
7. Hold-Back Agreements
(a) Restrictions on Public Sale by Holder of
Registrable Securities. Each holder of Registrable Securities whose Registrable
Securities are eligible for inclusion in a Registration Statement filed pursuant
to Sections 3 or 4 agrees, if requested by the managing underwriter or
underwriters in an underwritten offering of any Registrable Securities, not to
effect any public sale or distribution of Registrable Securities, including a
sale pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act (except as part of such underwritten registration), during the
10-day period prior to, and during the 90-day period (or such shorter period as
may be agreed to by the parties hereto) beginning on the effective date of such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriter or underwriters.
The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that any
such holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of
Registrable Securities (except as part of such underwritten registration) during
such period unless it has provided 45 days prior written notice of such sale or
distribution to the managing underwriter or underwriter.
(b) Restrictions on Public Sale by the Company
and Others. The Company shall (i) not effect any public sale or distribution of
any of its Common Stock for its own account during the 10-day period prior to,
and during the 90-day period beginning on, the effective date of a Registration
Statement filed pursuant to Sections 3 or 4 (except as part of a Special
Registration Statement), and (ii) use reasonable efforts to cause each holder of
Common Stock purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution of any such securities during such period,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration, if permitted).
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8. Underwritten Registration
If any of the Registrable Securities covered by any Incidental
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Company and, in the case of a Demand Registration,
reasonably acceptable to holders with at least 50% of the Registrable Securities
requesting registration.
Notwithstanding anything herein to the contrary, no Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwritten arrangements approved by the Persons entitled hereunder to approve
such arrangement and (b) accurately completes and executes all questionnaires,
powers of attorney, indemnities, custody agreements, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company will
not hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities.
The Company will not take any action, or permit any change to occur, with
respect to its securities which would materially and adversely affect the
ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or which
would materially and adversely affect the marketability of such Registrable
Securities in any such registration (including, without limitation, effecting a
stock split or a combination of shares).
(c) Amendment and Modification. Except as
otherwise provided herein, the provisions of this Agreement may be amended or
waived only upon the prior written consent of the Company and holders of at
least 50% of the Registrable Securities.
(d) Survival of Representations and Warranties.
All representations, warranties, covenants and agreements set
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forth in this Agreement will survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by any party hereto or on its behalf.
(e) Successors and Assigns; Entire Agreement.
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 assigns of the parties hereto whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities; provided, that no Demand Registration may be
requested by any subsequent holder of Registrable Securities unless such holder
holds at least 10% of the Company's Common Stock on a fully diluted basis and
such subsequent holder is not a then present customer, supplier or, in the
Company's reasonable judgment, competitor of the Company in the lasers or optics
business. Upon request, the Company will inform any holder of Registrable
Securities whether it or any person is a customer, supplier or, in the Company's
reasonable judgment, competitor of the Company. This Agreement sets forth the
entire agreement and understandings among the parties as to the subject matter
hereof and merges and supersedes all prior discussions and understandings of any
and every nature among them.
(f) Separability. In the event that any
provision of this Agreement or the application of any provision hereof is
declared to be illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall not be affected
except to the extent necessary to delete such illegal, invalid or unenforceable
provision unless that provision held invalid shall substantially impair the
benefits of the remaining portions of this Agreement.
(g) Notices. All notices provided for or
permitted hereunder shall be made in writing by hand-delivery, telecopier or air
courier guaranteeing overnight or two-day delivery to the other party at the
following addresses (or at such other address as shall be given in writing by
any party to the others):
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If to the Company to:
Spectra-Physics Lasers, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Spectra-Physics Holdings USA, Inc., to:
Spectra-Physics Holdings USA, Inc.
c\o Spectra-Physics AB
Xxxxxxxxxx 00
X.X. Xxx 0000
00000 Xxxxxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxxx
Telecopy: 00-0-0000000
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; when receipt acknowledged, if
telecopied; on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery and two business days after delivery to an air
courier guaranteeing two-day delivery.
(h) Governing Law. The validity, performance,
construction and effect of this Agreement shall be governed by and construed in
accordance with the internal law of Delaware, without giving effect to
principles of conflicts of law.
(i) Headings. The headings in this Agreement are
for convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect their meaning, construction or effect.
(j) Counterparts. This Agreement may be executed
in two or more counterparts and by the parties hereto in separate
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19
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same instrument.
(k) Further Assurances. Each party shall
cooperate and take such action as may be reasonably requested by another party
in order to carry out the provisions and purposes of this Agreement and the
transactions contemplated hereby.
(l) Termination. Notwithstanding anything in
this Agreement to the contrary, this Agreement shall terminate at such time as
the Registrable Securities constitute less than 10% of the Company's Common
Stock on a fully-diluted basis and such securities may be exchanged for a new
certificate or other evidence of ownership which are not required to bear a
restrictive legend and may be resold in a public sale in compliance with the
Securities Act without registration under the Securities Act; provided, that the
indemnification rights and obligations set forth in Section 6 hereof shall
survive the termination of this Agreement.
(m) Remedies. In the event of a breach or a
threatened breach by any party to this Agreement of its obligations under this
Agreement, any party injured or to be injured by such breach, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
(n) Party No Longer Owning Securities. If a
party hereto ceases to own any Registrable Securities, such party will no longer
be entitled to the registration rights contemplated by Sections 3, 4 and 5 of
this Agreement; provided, that the indemnification rights and obligations set
forth in Section 6 hereof shall survive any such cessation of ownership.
(o) Pronouns. Whenever the context may require,
any pronouns used herein shall be deemed also to include the corresponding
neuter, masculine or feminine forms.
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20
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
SPECTRA-PHYSICS LASERS, INC.
By: \s\ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
SPECTRA-PHYSICS HOLDINGS USA, INC.
By: \s\ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
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