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EXHIBIT 99
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
this 23rd day of May, 1997, by and among SYBRON INTERNATIONAL CORPORATION (the
"Company") and XXXXXX XXXXXX and XXXXXXX XXXXXX (collectively, the
"Shareholders").
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization
entered into among the Company, NSC Acquisition Corporation, a wholly-owned
subsidiary of the Company (the "Subsidiary"), National Scientific Company, a
Georgia corporation ("National"), and the Shareholders dated as of May 23, 1997
(the "Merger Agreement"), each share of the issued and outstanding capital
stock of National (the "NSC Stock") owned by the Shareholders was converted
into 1,015 shares of unregistered common stock, par value $0.01 per share, of
the Company ("Common Stock"), for an aggregate of 507,500 shares of Common
Stock (the "Merger Shares"); and
WHEREAS, pursuant to that certain Facility Purchase Agreement entered into on
the date hereof by and among the Subsidiary, the Company and the Shareholders
as described in the Merger Agreement (the "Facility Purchase Agreement"), the
Company issued 16,118 shares of unregistered Common Stock to the Shareholders
(together with the Merger Shares, the "Shares"); and
WHEREAS, pursuant to the Agreement, the Company agreed to provide certain
registration rights to the Shareholders with respect to the Shares, as
described in this Agreement.
NOW, THEREFORE, in consideration of the Recitals and of the mutual covenants,
conditions and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
ARTICLE I
DEFINITIONS
In addition to the terms defined above, when used in this Agreement the
following terms shall have the meanings specified:
1.1 "Act" shall have the meaning set forth in Section 2.1(a) of this
Agreement.
1.2 "Commission" shall have the meaning set forth in Section 2.3(a) of this
Agreement.
1.3 "Law" shall mean any federal, state, local or other law, rule,
regulation or governmental requirement or restriction of any kind, including
any rule, regulation or order promulgated
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thereunder and any final order, decree, policy, consent or judgment of any
regulatory agency, court or other Person.
1.4 "Person" shall mean a natural person, corporation, limited liability
company, association, joint stock company, trust, partnership, governmental
entity, agency or branch or department thereof, or any other legal entity.
1.5 "Registration Shares" shall have the meaning set forth in Section 2.1(a)
of this Agreement.
1.6 "Registration Statement" shall have the meaning set forth in Section
2.3(a) of this Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights.
(a) At any time after the date of this Agreement, the Company shall,
upon written demand of both Shareholders, use reasonable efforts to effect
registration under the Securities Act of 1933, as amended (the "Act"), of such
number of the Shares (the "Registration Shares") as shall be indicated in the
written demand, provided that:
(i) the Company shall not be required to effect more than one (1) such
demand registration for the Shareholders;
(ii) the Company shall be required to effect such demand registration
only if Form S-3 under the Act (or any comparable short-form registration then
in effect) is then available for use by the Company;
(iii) a demand registration effected pursuant to this Section 2.1 shall
not be required to become effective at any time prior to the date the Company
issues a public earnings release reporting earnings that include at least 30
days worth of results from the operations of the National business, nor shall
any demand registration be required to become effective more than one (1) year
from the date of this Agreement;
(iv) the Company shall not be required to register in such demand
registration an amount of Registration Shares which is less than Ten Percent
(10%) of the total number of Shares issued to the shareholders pursuant to the
Merger Agreement and the Facility Purchase Agreement; and
(v) a demand registration will not count as such until it has become
effective (a demand registration will, however, count as such if: (1) the
Shareholders withdraw their demand at any time other than pursuant to Section
2.1(c); or
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(2) after the filing of a Registration Statement, the failure of such
Registration Statement to become effective is due solely to the actions of
the Shareholders or if, once effective, the effectiveness of a Registration
Statement is withdrawn solely because of the Shareholders' actions).
(b) Upon receipt of a written demand for registration pursuant to
Section 2.1(a), the Company, with the full cooperation of the Shareholders,
shall expeditiously effect the registration under the Act of the Registration
Shares and use reasonable efforts to have such registration declared effective
as soon as practicable after the filing thereof. A Registration Statement
filed pursuant to this Section 2.1 shall provide that the Shares will be sold
by the Shareholders only through routine brokerage transactions or negotiated
transactions.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall be entitled to postpone, for up to one hundred
twenty (120) days, the filing of any registration statement otherwise required
to be prepared and filed by it pursuant to this Section 2.1 and shall be
entitled to take such actions as it deems necessary to delay the effectiveness
of any registration statement filed pursuant to this Section 2.1 if: (i) the
Company would be required to prepare any financial statements other than those
it customarily prepares; (ii) the Company determines in its reasonable business
judgment that such registration or offering would interfere with any then
pending material financing, acquisition, corporate reorganization or other
material corporate transaction or development involving the Company; or (iii)
registration would give rise to initial or continuing disclosure obligations
that would not be in the best interest of the Company's shareholders. The
Company shall promptly notify the Shareholders of any such postponement or
delay. Nothing contained herein shall require the Company to disclose to the
Shareholders the reason for the postponement or delay regardless of whether any
such disclosure would involve the disclosure of material non-public
information. The Company shall use reasonable efforts to minimize the length
of any such postponement or delay. If the Company shall postpone the filing of
any registration statement pursuant to this Section 2.1(c), the Shareholders
shall have the right to withdraw their demand registration request by giving
written notice thereof to the Company within thirty (30) days after the receipt
of the notice of postponement or delay and, in the event of such a withdrawal,
the demand request which was withdrawn shall be deemed not to have been made.
If, after a registration statement becomes effective, the Company advises the
Shareholders that the Company considers it appropriate for the registration
statement to be amended, the Shareholders shall suspend any further sales of
Shares until the Company advises them that the registration statement has been
amended.
(d) Nothing contained herein shall be construed to prohibit the
Company from also registering, at its option, shares of Common Stock to be sold
by it in any offering effected
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pursuant to this Section 2.1. Furthermore, in the event the Company chooses to
undertake a registered offering of its Common Stock at any time while the
Shareholders are entitled to demand registration pursuant to this Section 2.1,
the Company may provide an opportunity to the Shareholders to participate as
"Selling Security Holders" in such registration under substantially the same
terms and conditions as are set forth in this Agreement. In the event the
Company chooses to exercise this option, it shall provide the Shareholders with
written notice thereof at least twenty (20) days prior to the proposed filing
date of the relevant registration statement. Upon notice to the Shareholders
as described herein, the Shareholders shall have no further demand rights
pursuant to this Section 2.1.
2.2 Indemnity.
(a) The Company will indemnify and hold harmless the Shareholders (and
any Person who controls a Shareholder within the meaning of Section 15 of the
Act) against all claims, losses, damages, liabilities, actions and expenses
resulting from any untrue statement or alleged untrue statement of a material
fact contained in a prospectus or in any related registration statement,
notification or the like or from any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as the same may have been based on information
furnished in writing to the Company by a Shareholder expressly for use therein
and used in accordance with such writing. The Company agrees to reimburse each
indemnified Person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability, action or expense.
(b) Each Shareholder, by acceptance of the registration provisions
provided herein, agrees to indemnify and hold harmless the Company, its
officers and directors (and any Person who controls the Company within the
meaning of Section 15 of the Act) against all claims, losses, damages,
liabilities, actions and expenses resulting from any untrue statement or
alleged untrue statement of a material fact furnished in writing to the Company
by that Shareholder expressly for use in connection with such registration or
qualification and used in accordance with such writing and from any omission
therefrom or alleged omission therefrom of a material fact needed to be
furnished or necessary to make the information furnished not misleading.
(c) In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Sections 2.2(a)
and 2.2(b) hereof is applicable but for any reason is held to be unenforceable
by the indemnified party or parties, the indemnifying party shall contribute to
the aggregate claims, losses, damages, liabilities, actions and expenses of the
nature contemplated by such indemnity incurred by the indemnified party or
parties in such proportions as are just
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and equitable, taking into account the relative fault of the parties, provided
that no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who
is not guilty of such fraudulent misrepresentation.
2.3 Registration Covenants of the Company. In the event that any Shares are
to be registered pursuant to Section 2.1 of this Agreement, the Company
covenants and agrees that the Company will use reasonable efforts to effect the
registration and cooperate in the sale of the Registration Shares to be
registered and to:
(a) promptly (within 60 calendar days) prepare and file with the
Securities and Exchange Commission (the "Commission") a registration statement
with respect to the Registration Shares (as well as any necessary amendments or
supplements thereto) (a "Registration Statement"), and use reasonable efforts
to cause such Registration Statement to become effective as soon as is
reasonably practicable;
(b) furnish to the Shareholders sufficient copies of such Registration
Statement and any amendments or supplements thereto and any prospectus forming
a part thereof prior to filing, which documents will be subject to the review
of counsel for the Shareholders;
(c) notify the Shareholders, promptly after the Company shall receive
notice thereof, of the time when said Registration Statement becomes effective
or when any amendment or supplement to any prospectus forming a part of said
Registration Statement has been filed;
(d) notify the Shareholders promptly of any request by the Commission
for the amending or supplementing of such Registration Statement or prospectus
or for additional information;
(e) advise the Shareholders after the Company shall receive notice or
obtain knowledge thereof of the issuance of any order by the Commission
suspending the effectiveness of any such Registration Statement or amendment
thereto or of the initiation or threatening of any proceeding for that purpose,
and promptly use reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal promptly if such stop order should be issued;
(f) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus forming a part
thereof as may be necessary to keep such Registration Statement effective for
the lesser of (i) a period of time necessary to permit the Shareholders
pursuant to such Registration Statement to dispose of all of such Registration
Shares, or (ii) the maximum period of time permitted by Law to keep effective a
registration statement; provided that under
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no circumstances shall the Company be obligated to keep the Registration
Statement effective beyond the first anniversary of the execution of this
Agreement;
(g) furnish to the Shareholders 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 the Shareholders may reasonably request in order to
facilitate the disposition of the Registration Shares owned by the
Shareholders;
(h) assist the Shareholders in satisfying their prospectus delivery
obligations by furnishing to any national securities exchange on which the
Registration Shares are then listed copies of the prospectus and each amendment
or supplement thereto in accordance with Rule 153 under the Act (or any
comparable rule then in existence);
(i) use reasonable efforts to register or qualify such Registration
Shares under such other securities or blue sky Laws of such jurisdictions as
are mutually determined by the Company and the Shareholders and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Shareholders to consummate the disposition in such jurisdictions of the
Registration Shares;
(j) notify the Shareholders, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any
event as a result of which such Registration Statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and, at the request
of the Shareholders, prepare a supplement or amendment to such Registration
Statement so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(k) cause all Registration Shares to continue to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(l) ensure the continued availability of a transfer agent and registrar
for all such Registration Shares;
(m) make available for inspection by the Shareholders and any attorney,
accountant or other agent retained by the Shareholders, subject to the
Company's receipt of reasonable confidentiality agreements from the recipients
thereof, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
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directors and employees to supply all information reasonably requested by the
Shareholders or any attorney, accountant or agent of the Shareholders in
connection with such Registration Statement; and
(n) use reasonable efforts to cause Registration Shares 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
Shareholders to consummate the disposition of such Registration Shares.
2.4 Registration Covenants of the Shareholders. In consideration of the
benefits accruing to them pursuant to this Agreement and in addition to their
other obligations set forth in this Agreement, the Shareholders each covenant
and agree to:
(a) reasonably cooperate with the Company, its counsel, advisors and
other representatives and comply with all applicable provisions of Law
(including without limitation Rule 10b-5 and Regulation M under the Securities
Exchange Act of 1934, as amended) in connection with any registration effected
pursuant to the provisions of this Agreement;
(b) promptly provide to the Company, in writing, such information as
the Company or its counsel deems necessary or appropriate for inclusion in the
Registration Statement, which information shall be true and correct in all
material respects;
(c) refrain from transferring by any means any of the Shares prior to
the earnings release date identified in Section 2.1(a)(iii) above; and
(d) consent to any lock-up period proposed by any underwriter of
shares of Common Stock being registered by the Company for public sale if such
lock-up period is reasonably required, in the good faith judgment of such
underwriter, to facilitate the offering of Common Stock by the Company.
In the event that either Shareholder fails to provide information as required
by Section 2.4(b) above on a timely basis, or such information is not true and
correct in all material respects, any Shares held by the Shareholder may be
excluded from the Registration Statement and such Shareholder's rights to
registration hereunder shall terminate.
2.5 Expenses. Except as otherwise required by Law, the Company shall pay
all of the expenses in connection with a registration pursuant to Section 2.1
of this Agreement, including, without limitation, costs of complying with
federal and state securities Laws, attorneys' and accounting fees of the
Company, printing expenses and federal and state filing fees (except for any
transfer taxes, broker's commissions and other selling expenses, which shall be
the responsibility of the Shareholders). Furthermore, the Company shall not be
obligated to pay any fees or disbursements of counsel for the Shareholders.
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ARTICLE III
MISCELLANEOUS
3.1 Survival. All agreements, representations and warranties made in this
Agreement or in any document delivered pursuant to this Agreement shall survive
the execution of this Agreement and the delivery of any such document.
3.2 Governing Law. This Agreement and the other documents issued pursuant
to this Agreement shall be governed by the Laws of the State of Wisconsin.
3.3 Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. The Article and
Section headings in this Agreement are inserted for convenience of reference
only and shall not constitute a part hereof.
3.4 Entire Agreement. This Agreement and the other documents referred to
herein contain the entire understanding of the parties with respect to the
subject matter hereof. There are no restrictions, promises, warranties,
covenants or undertakings concerning such subject matter other than those
expressly set forth in this Agreement. This Agreement supersedes all prior
negotiations, agreements and undertakings between the parties with respect to
such subject matter.
3.5 Notices. All communications or notices required or permitted by this
Agreement shall be in writing and shall be given through one of the methods set
forth, and shall be deemed to be effective, as follows: (i) if delivered in
person, upon receipt by the recipient, or (ii) if sent by telex or facsimile
transmission, on the second business day following the date a written record
thereof is mailed to an individual party or to an officer of a corporate party,
or (iii) if deposited in the United States mail, certified or registered mail,
postage prepaid, on the third business day following the date of mailing. All
such notices shall be sent to the following addresses, unless and until any of
such parties notifies the others in accordance with this Section of a change of
address:
If to the Shareholder: Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
0000 Xxx Xxxxxx Xxxxxxxx
Xxxxxxxxxx XX 00000
Fax No. 770/000-0000
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with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
Attn. Xxxxxx Xxxxxxx, Esq.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx XX 00000
Fax No. 404/000-0000
If to the Company: Sybron International Corporation
Attention: Secretary
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx XX 00000
Fax No. 414/000-0000
3.6 Amendments; Assignability. This Agreement may be amended if such
amendment is in writing and is signed by the Company and the Shareholders.
This Agreement may be assigned by the Shareholders only with the prior written
consent of the Company.
3.7 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
3.8 Interpretation. Unless the context requires otherwise, all words used
in this Agreement in the singular number shall extend to and include the
plural, all words in the plural number shall extend to and include the
singular, and all words indicating a gender shall extend to and include all
genders.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/ R. Xxxxxxx Xxxxxx
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R. Xxxxxxx Xxxxxx, Vice President -
General Counsel and Secretary
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
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