EXHIBIT 10.26
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of May 7, 1999 by and among Tetra Tech, Inc., a Delaware corporation ("Tetra
Tech"), and the parties listed on SCHEDULE A attached hereto (each, a
"Holder" and collectively, the "Holders").
R E C I T A L S
A. Tetra Tech and the Holders are parties to Stock Purchase Agreement
dated April 30, 1999 (the "Stock Purchase Agreement"), pursuant to which Tetra
Tech will acquire all of the outstanding shares of capital stock of Xxxxxxx/Xxxx
Consulting Engineers, Inc., an Arizona corporation ("C/P").
B. Pursuant to the Stock Purchase Agreement, the shareholders of C/P will
receive shares of the common stock, $.01 par value, of Tetra Tech ("Tetra Tech
Common Stock"); and
C. This Agreement is the Registration Rights Agreement referred to in
SECTION 7.10 of the Stock Purchase Agreement and, pursuant thereto, must be
entered into by the parties in connection with the consummation of the
transactions contemplated by the Stock Purchase Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"FORM S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by Tetra Tech with
the SEC.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
"REGISTER", "REGISTERED" and "REGISTRATION" shall mean and refer to a
registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such Registration
Statement by the SEC.
"REGISTRATION EXPENSES" shall have the meaning set forth in SECTION 4.
"REGISTRABLE SECURITIES" shall mean the shares of Tetra Tech Common
Stock (i) issued pursuant to the Stock Purchase Agreement, and (ii) issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of the shares referenced in (i) above; PROVIDED, HOWEVER, that
Registrable Securities shall not include any shares of Tetra Tech Common Stock
that have previously been registered or sold to the public or have been sold
pursuant to Rule 144 (or similar successor Rule).
"REGISTRATION STATEMENT" shall mean any registration statement of
Tetra Tech in compliance with the Securities Act that covers Registrable
Securities pursuant to the provisions of this Agreement, including, without
limitation, the Prospectus, all amendments and supplements to such Registration
Statement, including all post-effective amendments, all exhibits and all
material incorporated by reference in such Registration Statement.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act or
any similar successor rule, as the same shall be in effect from time to time.
"RULE 144A" shall mean Rule 144A promulgated under the Securities Act
or any similar successor rule, as the same shall be in effect from time to time.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
or any similar successor rule, as the same shall be in effect from time to time.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
2.
"SEC" shall mean the Securities and Exchange Commission.
"UNDERWRITTEN OFFERING" shall mean a registration in which securities
of Tetra Tech are sold to an underwriter or through an underwriter as agent for
reoffering to the public.
2. TETRA TECH REGISTRATION. If Tetra Tech shall determine to register
any shares of Tetra Tech Common Stock, or any securities convertible into or
exchangeable or exercisable for shares of Tetra Tech Common Stock, for its
own account or for the account of any stockholder (other than a registration
relating to the sale of securities to employees of Tetra Tech pursuant to an
employee benefit plan or pursuant to a transaction of the type described in
Rule 145 under the Securities Act), the Holders shall be entitled to include
Registrable Securities in such registration (and related underwritten
offering, if any) on the following terms and conditions:
(a) Tetra Tech shall promptly give written notice of such
determination to each Holder and each such Holder shall have the right to
request, by written notice given to Tetra Tech within 30 days of the receipt by
such Holder of such notice, that a specific number of Registrable Securities
held by such Holder be included in such Registration Statement;
(b) If the Registration Statement relates to an underwritten
offering, the notice called for by SECTION 2(a) shall specify the name of the
managing underwriter for such offering and the number of securities to be
registered for the account of Tetra Tech and for the account of any other
stockholder of Tetra Tech;
(c) If the Registration Statement relates to an underwritten
offering, each Holder to be included therein must (i) sell such person's
Registrable Securities on the same basis provided in the underwriting
arrangements approved by Tetra Tech and (ii) complete and execute all
questionnaires, powers of attorney, indemnities, hold-back agreements,
underwriting agreements and other documents required under the terms of such
underwriting arrangements or by the SEC;
(d) If the managing underwriter for the underwritten offering
under the Registration Statement to be filed by Tetra Tech determines that
inclusion of all or any portion of the Registrable Securities in such
offering would adversely affect the ability of the underwriter for such
offering to sell all of the securities requested to be included for sale or
the price per share in such offering, the number of shares that may be
included in such registration in such offering shall be allocated as follows:
(i) first, Tetra Tech shall be permitted to include all shares of capital
stock to be registered thereby; (ii) second, the Holders, on a pro rata basis
based on the total number of Registrable Securities held thereby (or on such
other basis as may be agreed among them), shall be allowed to include such
amount of the Registrable Securities as the managing underwriter deems
appropriate; and (iii) third, any other selling stockholder exercising
piggyback registration rights shall be allowed to include securities in such
amounts as may be deemed appropriate by such managing underwriter;
3.
(e) Holders shall have the right to withdraw their Registrable
Securities from the Registration Statement at any time prior to the effective
date thereof, but if the same relates to an underwritten offering, they may
only do so during the time period and on terms deemed appropriate by the
underwriters for such underwritten offering; and
(f) Tetra Tech shall have the right to terminate or withdraw any
registration initiated by it under this SECTION 2 prior to the effective date
of such registration for any reason without liability to any Holder as a
result thereof, whether or not any Holder has elected to include such
securities in such registration.
3. REGISTRATION FOR HOLDERS.
(a) Tetra Tech shall file a Registration Statement on Form S-3,
providing for the sale by the Holders, pursuant to Rule 415, and/or any
similar rule that may be adopted by the SEC, of the Registrable Securities.
Tetra Tech shall use commercially reasonable efforts to cause such
Registration Statement to become effective on or before May 7, 2000, and to
keep such Registration Statement continuously effective for a period ending
on the date on which all such Holders are eligible to sell Registrable
Securities under Rule 144 (or similar successor rule) without any volume
limitation. If, at the time Tetra Tech is required to file a Registration
Statement pursuant to this SECTION 3(a), Tetra Tech is not eligible to file a
Registration Statement on Form S-3 to register resales by stockholders, Tetra
Tech shall initially file a Registration Statement on Form S-1 and shall
comply with the provisions of the immediately preceding sentence. Upon
becoming eligible to use the Registration Statement on Form S-3 to register
resales by stockholders (whether pursuant to a ruling or waiver from the SEC
or otherwise), Tetra Tech shall promptly file a Registration Statement on
Form S-3 or convert the existing Registration Statement to Form S-3 relating
to the offer and sale of Registrable Securities by the Holders from time to
time. Thereafter, Tetra Tech shall use commercially reasonable efforts to
cause such new or amended Registration Statement to be declared effective by
the SEC as promptly as practicable.
(b) No Holder shall have the right to register securities under
this Agreement unless such Holder provides and/or confirms in writing prior
to or after the filing of the Registration Statement such information
(including, without limitation, information as to the number of Registrable
Securities that such Holder has sold pursuant to any such Registration
Statement from time to time) as Tetra Tech reasonably requests in connection
with such Registration Statement.
(c) Notwithstanding the foregoing, for a period not to exceed 90
days, Tetra Tech shall not be obligated to prepare and file the Registration
Statement required hereunder if Tetra Tech, in its good faith judgment,
reasonably believes that the filing of such Registration Statement would
require the disclosure of material non-public information regarding Tetra
Tech and, accordingly, that the filing thereof, at the time requested, or the
offering of Tetra Tech Common Stock pursuant thereto, would materially and
adversely affect (i) a pending or
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scheduled public offering or private placement of securities of Tetra Tech,
(ii) an acquisition, merger, consolidation or similar transaction by or of
Tetra Tech, (iii) preexisting and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions, or (iv)
the financial condition of Tetra Tech in view of the disclosure of any
pending or threatened litigation, claim, assessment or governmental
investigation which might be required thereby.
In the event that Tetra Tech, in good faith, reasonably believes that
such conditions are continuing after such 90-day period, it may, with the
consent of the Holders of a majority of the Registrable Securities subject
(or to be subject) to the Registration Statement, which consent shall not be
unreasonably withheld, extend such 90-day period for an additional 30 days.
Any further delay shall require the consent of the Holders of all such shares.
4. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES.
Each Holder whose Registrable Securities are included (in whole or in part)
in a Registration Statement filed by Tetra Tech under SECTION 2 for sale in
an underwritten offering agrees, if requested by the managing underwriter of
such offering, not to sell, make any short sale of, loan, grant any option
for the purchase of, dispose of or effect any public sale or distribution of
securities of the same series and class as (or securities exchangeable or
exercisable for or convertible into securities of the same series and class
as) the Registrable Securities included in the Registration Statement,
including a sale pursuant to Rule 144 (except as part of such underwritten
registration), during the ten day period prior to, and during the 180 day
period (or shorter period requested by the underwriter) beginning on the
closing date of such underwritten offering, to the extent timely notified in
writing by Tetra Tech or the managing underwriter.
5. REGISTRATION PROCEDURES. In connection with Tetra Tech's
registration obligations pursuant to SECTIONS 2 or 3 hereof, Tetra Tech will
use commercially reasonable efforts to effect such registration to permit the
sale of the Registrable Securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto Tetra
Tech will:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such Registration Statement to become effective; PROVIDED that,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, Tetra Tech will furnish to the Holders of the Registrable
Securities covered by such Registration Statement and their counsel, copies of
all such documents proposed to be filed at least ten days prior thereto, and
Tetra Tech will not file any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto to which any such Holder shall
reasonably object within such ten day period; PROVIDED, FURTHER, that Tetra Tech
will not name or otherwise provide any information with respect to any Holder in
any Registration Statement or Prospectus without the express written consent of
such Holder, unless required to do so by the Securities Act and the rules and
regulations thereunder;
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(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus
as may be necessary to comply with the provisions of the Securities Act and
the rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) notify the selling Holders (i) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the SEC for amendments
or supplements to the Registration Statement or the Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, (iv) of the receipt by Tetra Tech of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (v) of the happening of
any event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the
Prospectus or any document incorporated therein by reference in order to make
the statements therein not misleading in light of the circumstances then
existing;
(d) make every commercially reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(e) deliver to each selling Holder, without charge, such
reasonable number of conformed copies of the Registration Statement (and any
post-effective amendment thereto) and such number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto (and any documents incorporated by reference therein) as such Holder
may reasonably request. Tetra Tech consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders in
connection with the offer and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(f) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the selling
Holders in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such selling Holder reasonably requests,
and use commercially reasonable efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such Registration Statement is required to be
kept effective pursuant to the terms of this Agreement; and do any and all
other acts or things necessary or advisable to enable the
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disposition in all such jurisdictions reasonably requested by the Holders of
the Registrable Securities covered by such Registration Statement, PROVIDED
that under no circumstances shall Tetra Tech be required in connection
therewith or as a condition thereof to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
(g) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to be sold, free of any and all restrictive legends, such certificates to be
in such denominations and registered in such names as the Holders may request;
(h) upon the occurrence of any event contemplated by SECTION 3(c)(v)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading;
(i) make generally available to the holders of Tetra Tech's
outstanding securities earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than 60 days after the end of
any 12 month period (or 90 days, if such period is a fiscal year) beginning
with the first month of Tetra Tech's first fiscal quarter commencing after
the effective date of the Registration Statement, which statements shall
cover said 12 month period;
(j) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
Statement from and after a date not later than the effective date of such
Registration Statement;
(k) use its best efforts to cause all Registrable Securities
covered by each Registration Statement to be listed, subject to notice of
issuance, prior to the date of the first sale of such Registrable Securities
pursuant to such Registration Statement, on each securities exchange on which
the Tetra Tech Common Stock is then listed, and admitted to trading on the
Nasdaq Stock Market, if the Tetra Tech Common Stock is then admitted to
trading on the Nasdaq Stock Market; and
(l) enter into such agreements (including underwriting agreements
in customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as a majority of the Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(m) cooperate with the selling Holders and the managing
underwriter or underwriters in their marketing efforts with respect to the
sale of the Registrable Securities, including participation by Tetra Tech
management in "road show" presentations.
7.
Each Holder agrees that, upon receipt of any notice from Tetra Tech of
the happening of any event of the kind described in SECTION 5(c)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
under the Prospectus related to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by SECTION 5(h) hereof, or until it is advised in writing by
Tetra Tech that the use of the Prospectus may be resumed.
It shall be a condition precedent to the obligations of Tetra Tech to
take any action pursuant to this SECTION 5 with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to Tetra Tech
such information regarding itself and the Registrable Securities held by it
as shall be required by the Securities Act to effect the registration of such
Holder's Registrable Securities.
6. REGISTRATION EXPENSES. All expenses incident to any registration
to be effected hereunder and incident to Tetra Tech'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, National
Association of Securities Dealers, Inc., stock exchange and qualification
fees, fees and disbursements of Tetra Tech's counsel and of independent
certified public accountants of Tetra Tech (including the expenses of any
special audit required by or incident to such performance), the fees and
disbursements of one counsel and one accountant representing the Holders in
such offering, expenses of the underwriters that are customarily requested in
similar circumstances by such underwriters (excluding discounts, commissions
or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities, which will be borne by the Holders), all such
expenses being herein called "Registration Expenses," will be borne by Tetra
Tech. Tetra Tech will also pay its internal expenses, the expense of any
annual audit and the fees and expenses of any person retained by Tetra Tech.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY TETRA TECH. Tetra Tech agrees to indemnify
and hold harmless each Holder of Registrable Securities, its officers,
directors, partners and employees and each person who controls such Holder
(within the meaning of Section 15 of the Securities Act) from and against any
and all losses, claims, damages and liabilities (including any investigation,
legal or other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) (collectively, "Damages") to which such Holder may become subject
under the Securities Act, the Exchange Act or other federal or state
securities law or regulation, at common law or otherwise, insofar as such
Damages arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any amendment or supplement thereto,
(ii) the omission or
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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 and (iii) any
violation or alleged violation by Tetra Tech of the Securities Act, the
Exchange Act or any state securities or blue sky laws in connection with the
Registration Statement, Prospectus or preliminary prospectus or any amendment
or supplement thereto, PROVIDED that Tetra Tech will not be liable to any
Holder to the extent that such Damages arise from or are based upon any
untrue statement or omission (x) based upon written information furnished to
Tetra Tech by such Holder expressly for the inclusion in such Registration
Statement, (y) made in any preliminary prospectus if such Holder failed to
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the party asserting the claim
underlying such Damages and such Prospectus would have corrected such untrue
statement or omission and (z) made in any Prospectus if such untrue statement
or omission was corrected in an amendment or supplement to such Prospectus
and such Holder failed to deliver such amendment or supplement prior to or
concurrently with the sale of Registrable Securities to the party asserting
the claim underlying such Damages.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
Holder of Registrable Securities whose Registrable Securities are sold under
a Prospectus which is a part of a Registration Statement agrees to indemnify
and hold harmless Tetra Tech, its directors and each officer who signed such
Registration Statement and each person who controls Tetra Tech (within the
meaning of Section 15 of the Securities Act), and each other Holder of
Registrable Securities whose Registrable Securities are sold under the
Prospectus which is a part of such Registration Statement (and such Holder's
officers, directors and employees and each person who controls such Holder
within the meaning of Section 15 of the Securities Act), under the same
circumstances as the foregoing indemnity from Tetra Tech to each Holder of
Registrable Securities to the extent that such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement of
a material fact or omission of a material fact that was made in the
Prospectus, the Registration Statement, or any amendment or supplement
thereto, in reliance upon and in conformity with information relating to such
Holder furnished in writing to Tetra Tech by such Holder expressly for use
therein, PROVIDED that in no event shall the aggregate liability of any
selling Holder of Registrable Securities exceed the amount of the net
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. Tetra Tech and the selling
Holders 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 customarily
furnished by such persons in similar circumstances.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled
to indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER,
that any person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but
the fees
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and expenses of such counsel shall be at the expense of such person and not
of the indemnifying party unless (A) the indemnifying party has agreed to pay
such fees or expenses, (B) the indemnifying party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to such
person or (C) in the reasonable judgment of such person and the indemnifying
party, based upon advice of their respective counsel, a conflict of interest
may exist between such person and the indemnifying party with respect to such
claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such person). If such defense
is not 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 not be unreasonably withheld). No indemnified party will be
required to consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by all
claimants or plaintiffs to such indemnified party of a release from all
liability in respect to such claim or litigation. Any indemnifying party who
is not entitled to, or elects not to, assume the defense of a 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. As
used in this SECTION 7(c), the terms "indemnifying party", "indemnified
party" and other terms of similar import are intended to include only Tetra
Tech (and its officers, directors and control persons as set forth above) on
the one hand, and the Holders (and their officers, directors, partners,
employees, attorneys and control persons as set forth above) on the other
hand, as applicable.
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified
party 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. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties acknowledge and agree that it would not be just and equitable if
contribution pursuant to this SECTION 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in this SECTION 7(d).
Notwithstanding the foregoing, no Holder shall be required to contribute any
amount in excess of the amount such Holder would have been required to pay to
an indemnified party if the indemnity under SECTION 7(b) hereof was
available. 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
10.
misrepresentation. The obligation of any person to contribute pursuant to
this SECTION 7(d) shall be several and not joint.
(e) TIMING OF PAYMENTS. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of
this SECTION 7 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) SURVIVAL. The indemnity and contribution agreements contained
in this SECTION 7 shall remain in full force and effect, regardless of any
investigation made by or on behalf of Tetra Tech, a participating Holder, its
officers, directors, partners, attorneys, agents or any person, if any, who
controls Tetra Tech or such Holder as aforesaid, and shall survive the
transfer of such Registrable Securities by such Holder.
8. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of
this Agreement:
(a) Tetra Tech shall, with respect to a Registration Statement
filed pursuant to SECTION 3, give the Holders of such Registrable Securities
so registered, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement (other than reports and proxy statements incorporated
therein by reference and properly filed with the SEC) and each Prospectus
included therein or filed with the SEC, and each amendment thereof or
supplement thereto; and
(b) Tetra Tech shall give the Holders of such Registrable
Securities so registered, their underwriters, if any, and their respective
counsel and accountants such reasonable access to its books and records and
such opportunities to discuss the business of Tetra Tech with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders or such
underwriters, to conduct a reasonable investigation within the meaning of
Section 11(b)(3) of the Securities Act.
9. RULE 144. Tetra Tech covenants that it will use commercially
reasonable efforts to file, on a timely basis, the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further
action as any Holder may reasonably request (including, without limitation,
compliance with the current public information requirements of Rule 144(c)
and Rule 144A), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the conditions provided by Rule 144,
Rule 144A or any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any Holder, Tetra Tech will promptly deliver to such
Holder a written statement verifying that it has complied with such
information and requirements.
11.
10. SPECIFIC PERFORMANCE. Each Holder, in addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of damages, will be entitled to specific performance of its rights under this
Agreement. Tetra Tech agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
11. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by facsimile or delivered personally
by hand or nationally recognized courier addressed (a) if to a Holder, as
indicated on the list of Holders attached hereto as SCHEDULE A, or at such
other address as such Holder or permitted assignee shall have furnished to
Tetra Tech in writing, or (b) if to Tetra Tech, at such address or facsimile
number as Tetra Tech shall have furnished to each Holder in writing. All such
notices and other written communications shall be effective on the date of
mailing, facsimile transfer or delivery.
12. SUCCESSORS AND ASSIGNS: ASSIGNMENT OF RIGHTS. The rights and
benefits of a Holder hereunder may not be assigned to a transferee or
assignee without the consent of Tetra Tech; PROVIDED, HOWEVER, that, no later
than the 10th day prior to the filing of the Registration Statement under
SECTION 3 hereof, the rights and benefits of a Holder hereunder may be
transferred in connection with a transfer or assignment of any Registrable
Securities held by such Holder (i) by gift to immediate family members of
such Holder, or trusts or other entities for the sole benefit thereof, or
(ii) by gift to any entity in which such Holder, his or her immediate family
members, or trusts or other entities for the sole benefit thereof
beneficially own all of the voting securities; PROVIDED, HOWEVER, that in
each case, the transferee executes an instrument pursuant to which the
transferee agrees to be bound by the terms and conditions hereof as a Holder,
and such other documents as Tetra Tech or its counsel may reasonably require,
after which, such transferee shall be deemed a "Holder" hereunder. Any
transfer of Registrable Securities, and rights hereunder, shall be subject to
compliance with applicable securities laws and the restrictions contained in
the Investment Letter executed by each Holder pursuant to the Stock Purchase
Agreement.
13. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
14. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement, the Stock
Purchase Agreement and the other agreements contemplated thereby constitute
the full and entire understanding and agreement among the parties with regard
to the subjects hereof and thereof. Without limiting the foregoing, the
rights of the Holders to registration pursuant to the terms of this Agreement
shall be subject to the limitations on resale contained in the Investment
12.
Letter (as defined in the Stock Purchase Agreement). Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated, except
by a written instrument signed by Tetra Tech and the holders of at least 51%
of the Registrable Securities and any such amendment, waiver, discharge or
termination shall be binding upon all the parties hereto, but in no event
shall the obligation of any party hereto be materially increased, except upon
the written consent of such party.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together
shall constitute one instrument.
16. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware without giving effect
to principles of conflicts of laws thereof.
17. NO THIRD PARTY BENEFICIARIES. The covenants and agreements set
forth herein are for the sole and exclusive benefit of the parties hereto and
their respective successors and assigns and such covenants and agreements
shall not be construed as conferring, and are not intended to confer, any
rights or benefits upon any other persons.
13.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TETRA TECH, INC.
By: /s/ Li-San Hwang
---------------------------------
Li-San Hwang
Chairman, Chief Executive Officer
and President
Xxxx FCO X. Xxxx
14.
SCHEDULE A
SCHEDULE OF HOLDERS
Number of Shares of Tetra Tech
Common Stock Issued Pursuant
Holder's Name/Address/Facsimile No. to the Stock Purchase Agreement
----------------------------------------- -------------------------------
Xxxx FCO X. Xxxx 4,938 shares
0000 X. Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: None
15.
