AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
Tektronix, Inc. ("Tektronix") and Merix Corporation (the "Company")
are parties to a Registration Rights Agreement dated June 1, 1995 (the
"Registration Rights Agreement"). In connection with the proposed sale of up
to 1,150,000 shares of Common Stock of the Company by Tektronix, Inc. and up
to 2,300,000 shares of Common Stock by the Company pursuant to a registered
underwritten offering and in consideration of the agreements to be made by
Tektronix and the Company in the Underwriting Agreement among Tektronix, the
Company, Xxxxxx Xxxxxx Partners LLC and other underwriters (the "Underwriting
Agreement"), Tektronix and the Company amend the Registration Rights
Agreement, effective as of April 13, 2000, as set forth in this Amendment.
All terms used in this Amendment without definition shall have the respective
meaning given to them in the Registration Rights Agreement.
1. APPLICATION OF AMENDMENT
This Amendment shall apply only to an underwritten offering of
Common Stock of the Company pursuant to the Underwriting Agreement (the
"Offering"), and in no event shall it apply to any offering that (a) is made
pursuant to a registration statement that becomes effective with the
Commission after May 15, 2000 or (b) occurs when Tektronix holds less than
25% of the outstanding Common Stock of the Company. Tektronix and the Company
agree that the provisions set forth in this Amendment shall be in addition to
the provisions in the Registration Rights Agreement and the provisions in the
Registration Rights Agreement shall remain in full force and effect on and
after the date of this Amendment.
2. INDEMNIFICATION BY THE COMPANY
Subject to Section 4, the Company will, and hereby does, indemnify
and hold harmless, to the fullest extent permitted by law, Tektronix, its
directors and officers, and each other Person, if any, who controls Tektronix
within the meaning of the Securities Act, against any and all Losses to which
they or any of them may become subject; provided, however, that the
indemnification agreement contained herein shall not apply to such losses,
claims, damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by Tektronix specifically stating that it is for use in connection
with preparation of the Registration Statement, any preliminary prospectus or
final prospectus contained in the Registration Statement, any such amendment
or supplement thereto or any Blue Sky Filing.
3. INDEMNIFICATION BY TEKTRONIX
Subject to Sections 4 and 5, Tektronix will, and hereby does,
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors and officers, and each other Person, if any, who
controls the Company within the meaning of the Securities Act, against any
and all Losses to which they or any of them may become subject.
4. APPLICATION OF INDEMNITY PROVISIONS
The indemnity provisions of Sections 2 and 3 shall apply so that
Total Losses and costs and other expenses are borne by the Company and
Tektronix with the following effect:
a. The Company shall bear its own costs and expenses in
connection with its investigation of any claims or defending any actions
relating to the Offering, and the Company shall indemnify and reimburse
Tektronix for Tektronix= costs and expenses as provided in Section 2.7(b) of
the Registration Rights Agreement.
b. Total Losses shall first be borne by the Company to
the extent of the amount of Company Proceeds, and the Company shall indemnify
Tektronix with respect to any and all Losses of Tektronix so that this result
is achieved.
c. If Total Losses exceed the amount of Company Proceeds
and the Company has paid the entire amount of the Company Proceeds in
connection with such Total Losses, Tektronix shall bear Total Losses in
excess of Company Proceeds, and Tektronix shall indemnify the Company with
respect to such excess Losses of the Company so that this result is achieved,
provided that Tektronix= indemnity obligations under this Amendment are
subject to the limitations in Section 5.
d. The Company shall bear any Total Losses in excess of
the sum of Company Proceeds and Tektronix Proceeds, and the Company shall
indemnify Tektronix with respect to such excess Losses of Tektronix so that
this result is achieved.
5. LIMITATIONS ON TEKTRONIX INDEMNITY
Notwithstanding any provision in this Amendment to the contrary,
Tektronix shall have no obligation to indemnify the Company in excess of the
Tektronix Proceeds less amounts that Tektronix pays or may be required to pay
under the Underwriting Agreement or to other persons for any Losses in
connection with the Offering.
6. DEFINITIONS
"Company Proceeds" means proceeds from the sale of securities by the
Company in the Offering (less underwriters' discounts and commissions).
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"Losses" means any and all losses, claims, damages, liabilities and
expenses, joint or several, (or actions or proceedings, whether commenced or
threatened, in respect thereof) to which such person or any of them may
become subject under the Securities Act, any other statute or common law or
Section 8 of the Underwriting Agreement in connection with the Offering,
including any amount paid in settlement of any litigation, commenced or
threatened, insofar as any such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under Blue Sky or other
securities laws of jurisdictions in which the Registrable Securities are
offered ("Blue Sky Filing"), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, if used
prior to the effective date of the Registration Statement, or contained in
the final prospectus (as amended or supplemented if the Company shall have
filed with the Commission any amendment thereof or supplement thereto) if
used within the period during which the Company is required to keep the
Registration Statement to which such prospectus relates current, or the
omission or alleged omission to state therein (if so used) a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. ALosses@ does not
include legal or other expenses of the Company or Tektronix incurred by
either of them in connection with investigating such claims and defending
such actions.
"Registration Statement" means the registration statement relating
to the Offering.
"Tektronix Proceeds" means proceeds from the sale of securities by
Tektronix in the Offering (less underwriters' discounts and commissions).
"Total Losses" shall mean Losses of the Company and Losses of
Tektronix.
DATED: April 13, 2000
MERIX CORPORATION
By:
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Title:
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TEKTRONIX, INC.
By:
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Title:
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