Exhibit 10.49
XXXXX INSTRUMENTS CORP.
UP TO 3,296,000 SHARES
COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
-----------------------------
October 22, 2002
TO EACH OF THE PURCHASERS
NAMED ON THE SIGNATURE PAGES HEREOF
Ladies and Gentlemen:
Xxxxx Instruments Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in the Subscription Agreement (as defined herein) up to
3,296,000 shares of its common stock, par value $0.01 per share (the
"Securities"). As an inducement to the Purchasers to enter into the Subscription
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. DEFINITIONS.
(a) Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Subscription Agreement. As used
in this Agreement, the following defined terms shall have the following
meanings:
"AFFILIATE" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CLOSING DATE" has the meaning in the Subscription Agreement.
"CLOSING PRICE" as of any date means the closing price of one
share of Common Stock as reported by the Nasdaq National Market on such date.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"COMMON STOCK" means the Company's common stock, par value
$0.01 per share.
"DELAY CONDITIONS" means (i) the Company is in possession of
material non-public information the disclosure of which would have a material
adverse effect on the business, operations, prospects, condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole or (ii) the
Board of Directors of the Company determines in good faith that as a result of
the occurrence or existence of any pending corporate development with respect to
the Company, a failure by the Company to cause (A) a delay in the effectiveness
of the Shelf Registration Statement, (B) or the Shelf Registration Statement
ceasing to be effective, or (C) a Prospectus thereunder ceasing to be usable, as
the case may be, would have a material adverse effect on the business,
operations, prospects, condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. The Delay Conditions shall not include any
material non-public information or corporate development known to the Company as
of the date hereof. The Delay Conditions shall be deemed to no longer exist if
(x) in the case of clause (i) above, the Board of Directors of the Company
determines in good faith that the disclosure of such material information would
not be prejudicial to or contrary to the interest of the Company and (y) in the
case of clause (ii) above, the Board of Directors of the Company determines in
good faith that such delay or cessation is no longer appropriate.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in
Section 2(b)(i) hereof.
"EFFECTIVE TIME" means the date on which the Commission
declares the Shelf Registration Statement effective or on which the Shelf
Registration Statement otherwise becomes effective.
"EFFECTIVENESS DEADLINE DATE" means the date which is 90 days
from the Closing Date if the Commission determines not to review the Shelf
Registration Statement, or if the Commission determines to review the Shelf
Registration Statement, then Effectiveness Deadline Date means the date which is
120 days from the Closing Date; PROVIDED that, in either case, the Effectiveness
Deadline Date may be postponed for up to 60 days if and so long as the Delay
Conditions exist.
"ELECTING HOLDER" has the meaning assigned thereto in Section
3(a)(ii) hereof.
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"EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as amended.
"FILING DEADLINE DATE" means the date which is the earlier to
occur of (i) 30 days from the Closing Date or (ii) the date which is five (5)
business days following the later to occur of (A) the receipt by the Company of
audited financial statements of Xxxxxxx Outdoor Corporation, a Delaware
corporation ("XXXXXXX"), meeting the requirements of Rule 3-05 of Regulation
S-X, and (B) the completion by the Company (including review by the Company's
independent auditors) of pro forma financial information (with respect to its
proposed acquisition of Xxxxxxx) meeting the requirements of Article 11 of
Regulation S-X.
"HOLDER" means, when used with respect to any Security, the
record holder of such Security.
"MANAGING UNDERWRITERS" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering, if any, conducted pursuant to Section 6 hereof.
"MAXIMUM DELAY PERIOD" means 60 consecutive days (or 60 days
in the aggregate in any calendar year); provided that the Maximum Delay Period
shall be reduced by the number of days in which the Effectiveness Deadline Date
was postponed pursuant to the proviso in the definitions thereof.
"NASD RULES" means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration
Statement and Selling Securityholder Questionnaire, substantially in the form of
Exhibit A attached hereto, relating to the Securities.
"PERSON" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and any prospectus
that discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A under the
Securities Act) included in the Shelf 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 Shelf
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"PURCHASERS" means the Purchasers named on the signature pages
of the Subscription Agreement.
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"REGISTRABLE SECURITIES" means all or any portion of the
Securities; PROVIDED, HOWEVER, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"RESTRICTED SECURITY" means any Security except any such
Security that (i) the resale of which has been registered pursuant to an
effective registration statement under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) such that after such transfer the transferred securities are no longer
"restricted securities" as such term is defined under Rule 144, or is
transferable pursuant to paragraph (k) of Rule 144 (or any successor provision
thereto) or (iii) has otherwise been transferred and a new Security not subject
to transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company.
"RULES AND REGULATIONS" means the published rules and
regulations of the Commission promulgated under the Securities Act or the
Exchange Act, as in effect at any relevant time.
"SECURITIES ACT" means the United States Securities Act of
1933, as amended.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2 hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement filed under the Securities Act providing for the registration of the
resale of, on a continuous or delayed basis by the holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement,
dated as of the date hereof, between the Company and the Purchasers.
"UNDERWRITER" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION.
(a) The Company shall, (1) use its reasonable best
efforts to file with the Commission a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities on or prior to the Filing
Deadline Date and (2) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to the Effectiveness Deadline Date; provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus for resales of Registrable
Securities unless such holder is an Electing Holder.
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If (x) such Shelf Registration Statement covering the
Registrable Securities is not filed with the Commission on or prior to the
Filing Deadline Date, (y) such Shelf Registration Statement covering the
Registrable Securities is not declared effective by the Commission on or prior
to the Effectiveness Deadline Date or (z) such Shelf Registration Statement
ceases to be effective or any Prospectus thereunder ceases to be usable with
respect to any Registrable Securities, the Company will make pro rata payments
to each Purchaser, as liquidated damages and not as a penalty, in an amount per
30-day period (or pro rata portion thereof) equal to 2.0% of the aggregate
amount paid by such Purchaser on the Closing Date to the Company in respect of
the then Registrable Securities (i) in the case of clause (x), for the period
from the Filing Deadline Date to the date on which such Shelf Registration
Statement is filed, (ii) in the case of clause (y), for the period from the
Effectiveness Deadline Date to the date on which such Shelf Registration
Statement becomes effective and (iii) in the case of clause (z), for any period
in excess of the Maximum Delay Period in which such Shelf Registration Statement
ceases to be effective or any Prospectus thereunder ceases to be usable with
respect to any Registrable Securities. No such payments shall be payable in
respect of any Securities that are not Registrable Securities. Such payments
shall be made to each Purchaser in cash not later than three Business Days
following the end of each 30-day period.
(b) The Company shall use all reasonable efforts:
(i) to keep the Shelf Registration Statement
continuously effective in order to permit the
Prospectus to be usable by holders for resales of
Registrable Securities until the earlier of (A) the
sale under the Shelf Registration Statement of all
the Registrable Securities registered thereunder and
(B) all of the Securities ceasing to be Restricted
Securities (such period being referred to herein as
the "Effectiveness Period");
(ii) after the Effective Time, promptly upon
the request of any transferee that is a holder of
Registrable Securities that did not have an
opportunity to become an Electing Holder prior to the
Effective Time, to take any action reasonably
necessary to enable such holder to use the Prospectus
for resales of Registrable Securities, including
without limitation any action necessary to identify
such holder as a selling securityholder in the Shelf
Registration Statement; PROVIDED, HOWEVER, that
nothing in this subparagraph shall relieve such
holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in
accordance with Section 3(a) hereof; and
(iii) after the Effective Time, so long as
the Company is obligated to add holders pursuant to
clause (ii) immediately above, upon the request of
any other holder of Registrable Securities that is
not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the
Prospectus for resales of Registrable Securities,
including without limitation any action necessary to
identify such holder as a selling securityholder in
the Shelf Registration Statement; PROVIDED, HOWEVER,
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that nothing in this subparagraph shall relieve such
holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in
accordance with Section 3(a) hereof.
3. REGISTRATION PROCEDURES. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall mail the Notice and
Questionnaire to the holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to use the
Prospectus for resales of Registrable Securities at any time unless such holder
has returned a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth therein; PROVIDED, HOWEVER, holders of
Registrable Securities shall have at least 10 calendar days from the date on
which the Notice and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company. The term "Electing
Holder" shall mean any holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(a) hereof.
(b) The Company shall furnish to each Electing
Holder, counsel to the Electing Holders, and the Managing Underwriters, if any,
no fewer than five Business Days prior to the initial filing of the Shelf
Registration Statement, a copy of such Shelf Registration Statement, and shall
furnish to such holders, counsel to such holders, and the Managing Underwriters,
if any, no fewer than two Business Days prior to the filing of any amendment or
supplement to the Prospectus, a copy of such amendment or supplement and shall
use all reasonable efforts to reflect in each such document when so filed with
the Commission such comments as such holders and their respective counsel
reasonably may propose; provided, however, that the Company shall make the final
decision as to the form and content of each such document. If any such Shelf
Registration Statement refers to any Electing Holder by name or otherwise as the
holder of any securities of the Company, then such Electing Holder shall have
the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Electing Holder, to the effect that
the holding by such Electing Holder of such securities is not to be construed as
a recommendation by such Electing Holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such Electing Holder will assist in meeting any future financial requirements of
the Company or (ii) in the event that such reference to such Electing Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Electing Holder in
any amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
(c) From the date hereof until the end of the
Effectiveness Period, the Company shall (subject to paragraph (j) below)
promptly take such action as may be necessary so that (i) each of the Shelf
Registration Statement and any amendment thereto and the Prospectus and any
amendment or supplement thereto (and each report or other document incorporated
by reference therein in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and regulations
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thereunder, (ii) each of the Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain 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, in light of the circumstances under
which they were made, not misleading and (iii) each of the Prospectus and any
amendment or supplement to the Prospectus does not at any time during the
Effectiveness Period include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) The Company shall promptly (but in any event no
later than one Business Day after such occurrence) advise each Electing Holder,
and shall confirm such advice in writing if so requested by any such holder
(which notice pursuant to clauses (ii) through (iv) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement
and any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement
or any post-effective amendment thereto has become
effective;
(ii) of the issuance by the Commission or
any other federal or state governmental authority of
any stop order suspending the effectiveness of the
Shelf Registration Statement or the initiation of any
proceedings for such purpose;
(iii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included in the Shelf
Registration Statement for sale in any jurisdiction
or the initiation of any proceeding for such purpose;
and
(iv) if changes in the Shelf Registration
Statement or the Prospectus are required in order
that the Shelf Registration Statement and Prospectus
do not contain an untrue statement of a material fact
and do not omit to state a material fact required to
be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not
misleading.
(e) The Company shall use its reasonable efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Shelf Registration Statement at the earliest
possible time.
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(f) The Company shall furnish to each requesting
Electing Holder, without charge, at least one copy of the Shelf Registration
Statement and all post-effective amendments thereto, including financial
statements and schedules, and, if such holder so requests in writing, all
reports, other documents and exhibits that are filed with or incorporated by
reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness
Period, deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Electing Holder may reasonably request; and the
Company consents (except during the continuance of any event described in
Section 3(d)(iv) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities
pursuant to the Shelf Registration Statement, the Company shall (i) register or
qualify or cooperate with the Electing Holders and a single counsel for the
Electing 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 within the United States as any Electing Holder may
reasonably request, (ii) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable any Electing Holder
or underwriter, if any, to complete its distribution of Registrable Securities
pursuant to the Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; PROVIDED, HOWEVER, that in no event shall the
Company be obligated to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(h) or (B) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof so subject.
(i) The Company shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to the Shelf
Registration Statement, which certificates shall not bear any restrictive
legends and shall meet the requirements of any securities exchange on which the
Company's Common Stock is then listed and which certificates shall be in such
permitted denominations and registered in such names as Electing Holders may
request in connection with the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(j) Upon the occurrence of any fact or event
contemplated by paragraph 3(d)(iv) above, the Company shall (subject to the next
sentence) promptly prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated therein
by reference, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the Company
notifies the Electing Holders in accordance with clauses (ii) through (iv) of
paragraph 3(d) above to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made, then each Electing Holder shall
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suspend the use of the Prospectus until (i) such Electing Holder has received
copies of the supplemented or amended Prospectus contemplated by the preceding
sentence or (ii) such Electing Holder is advised in writing by the Company that
the use of the Prospectus may be resumed and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. Notwithstanding the foregoing, but subject to Section 6 hereof, the
Company may suspend the use of the Prospectus and shall not be required to amend
or supplement the Shelf Registration Statement, any related Prospectus or any
document incorporated by reference, for a period not to exceed the Maximum Delay
Period if and so long as the Delay Conditions exist.
(k) The Company shall use all reasonable efforts to
comply with all applicable Rules and Regulations, and to make generally
available to its securityholders as soon as practicable, but in any event not
later than eighteen months after (i) the effective date (as defined in Rule
158(c) under the Securities Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act and the Rules
and Regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(l) In the event of an underwritten offering
conducted pursuant to Section 6 hereof, the Company shall (subject to paragraph
3(j) above), if requested, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should be included
therein and to which the Company does not reasonably object and shall (subject
to paragraph 3(j) above) make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(m) The Company shall enter into such customary
agreements (including an underwriting agreement in customary form in the event
of an underwritten offering conducted pursuant to Section 6 hereof) and take all
other appropriate action in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified pursuant
to Section 5 hereof; provided, however, the Company shall not be required to
facilitate an underwritten offering pursuant to the Shelf Registration Statement
by any holders unless the offering relates to at least 25% of the Securities
sold pursuant to the Subscription Agreement.
(n) The Company shall:
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(i) (A) make reasonably available for
inspection by requesting Electing Holders, any
underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney
selected in accordance with Section 4(b) hereof, one
accountant and any other agent retained by such
holders or any such underwriter all relevant
financial and other records, pertinent corporate
documents and properties of the Company and its
subsidiaries and (B) cause the Company's officers,
directors and employees to supply all information
reasonably requested by such holders or any such
underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in
each case, as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that all records,
information and documents that are designated in
writing by the Company, in good faith, as
confidential shall be kept confidential by such
holders and any such underwriter, attorney,
accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by
law, or such records, information or documents become
available to the public generally or through a third
party without an accompanying obligation of
confidentiality; and PROVIDED, FURTHER that, if the
foregoing inspection and information gathering would
otherwise disrupt the Company's conduct of its
business, such inspection and information gathering
shall, to the greatest extent possible, be
coordinated on behalf of the requesting Electing
Holders and the other parties entitled thereto by one
counsel designated by and on behalf of Electing
Holders and other parties;
(ii) in connection with any underwritten
offering conducted pursuant to Section 6 hereof, make
such representations and warranties to the Electing
Holders participating in such underwritten offering
and to the Managing Underwriters, in form, substance
and scope as are customarily made by the Company to
underwriters in comparable underwritten offerings of
equity securities;
(iii) in connection with any underwritten
offering conducted pursuant to Section 6 hereof,
obtain opinions of counsel to the Company (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing
Underwriters) addressed to each requesting Electing
Holder, covering such matters as are customarily
covered in opinions requested in comparable
underwritten offerings of equity securities (it being
agreed that the matters to be covered shall include,
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without limitation, as of the date of the opinion and
as of the Effective Time or the date of the most
recent post-effective amendment thereto, as the case
may be, comment of such counsel as to the absence, to
such counsel's knowledge, from the Shelf Registration
Statement and the Prospectus, including the documents
incorporated by reference therein, of an untrue
statement of a material fact or the omission of a
material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances
under which they were made) not misleading);
(iv) in connection with any underwritten
offering conducted pursuant to Section 6 hereof,
obtain "cold comfort" letters and updates thereof
from the independent public accountants of the
Company (and, if necessary, from the independent
public accountants of any subsidiary of the Company
or of any business acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Shelf Registration
Statement), addressed to each requesting Electing
Holder (if such Electing Holder has provided such
letter, representations or documentation, if any,
required for such cold comfort letter to be so
addressed) and the underwriters, in customary form
and covering matters of the type customarily covered
in "cold comfort" letters in connection with
comparable underwritten offerings;
(v) in connection with any underwritten
offering conducted pursuant to Section 6 hereof,
deliver such documents and certificates as may be
reasonably requested by any Electing Holders and the
Managing Underwriters, if any, including without
limitation certificates to evidence compliance with
Section 3(j) hereof and with any conditions contained
in the underwriting agreement or other agreements
entered into by the Company in connection therewith.
(o) The Company will use all reasonable efforts to
cause the Securities to be listed on the Nasdaq National Market or other stock
exchange or trading system, if any, on which the Common Stock primarily trades
on or prior to the Effective Time.
(p) The Company shall use all reasonable efforts to
take all other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne by it whether
or not any Shelf Registration Statement is filed or becomes effective and
whether or not any securities are issued or sold pursuant to any Shelf
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including without limitation fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws (including without
limitation and in addition to that provided for in (b) below, reasonable fees
and disbursements of counsel for the underwriters or counsel for the holders of
Registrable Securities in connection with Blue Sky qualifications of the
Registrable Securities )), (ii) printing expenses (including without limitation
expenses of printing certificates for Registrable Securities and of printing
Prospectuses if the printing of Prospectuses is in the opinion of the Managing
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Underwriters, if any, appropriate to consummate the offering), (iii) fees and
disbursements of counsel for the Company and one counsel for the holders of
Registrable Securities, in accordance with the provisions of Section 4(b)
hereof, (iv) fees and disbursements of all independent certified public
accountants referred to in Section 3(n)(iv) hereof (including without limitation
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (v) Securities Act liability insurance, if the
Company desires such insurance, and (vi) fees and expenses of all other persons
retained by the Company. In addition, the Company shall pay its internal
expenses (including without limitation all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the listing of the
Securities on the Nasdaq National Market. Notwithstanding the foregoing or
anything in this Agreement to the contrary, each holder of the Registrable
Securities being registered shall pay all commissions, placement agent fees and
underwriting discounts and commissions with respect to any Registrable
Securities sold by it and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
counsel referred to in clause (iii) above.
(b) In connection with any registration hereunder,
the Company shall reimburse the holders of the Registrable Securities being
registered in such registration for the reasonable fees and disbursements of not
more than one counsel chosen by the holders of a majority of the Registrable
Securities for whose benefit the applicable Shelf Registration Statement is
being prepared, in an amount not to exceed $25,000.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company.
(i) The Company shall indemnify and hold
harmless each Electing Holder and each underwriter,
selling agent or other securities professional, if
any, which facilitates the disposition of Registrable
Securities, and each of their respective officers and
directors and each person who controls such Electing
Holder, underwriter, selling agent or other
securities professional within the meaning of Section
15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes
referred to as an "Indemnified Person") against any
losses, claims, damages or liabilities, joint or
several, to which such Indemnified Person may become
subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Shelf Registration Statement or any Prospectus
contained therein or furnished by the Company to any
Indemnified Person, or 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
12
necessary to make the statements therein, in light of
the circumstances in which they were made, not
misleading, and
(ii) the Company hereby agrees to reimburse
such Indemnified Person for any legal or other
expenses reasonably incurred by them in connection
with investigating or defending any such action or
claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any
such Indemnified Person in any such case under
Section 5(a)(i) above or this Section 5(a)(ii) to the
extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged
omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written
information relating to such Indemnified Person
furnished to the Company by or on behalf of such
Indemnified Person expressly for use therein;
provided, further, however, that the foregoing
indemnity agreement with respect to any Prospectus
shall not inure to the benefit of any Indemnified
Person who failed to deliver a final Prospectus or an
amendment or supplement thereto (provided by the
Company to the several Indemnified Persons in the
requisite quantity and on a timely basis to permit
proper delivery on or prior to the relevant
transaction date) to the person asserting any losses,
claims, damages and liabilities and judgments caused
by any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus, or
caused by 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, if such material misstatement or omission
or alleged material misstatement or omission was
cured in the final Prospectus or an amendment or
supplement thereto.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND
UNDERWRITERS. Each Electing Holder agrees, as a consequence of the inclusion of
any of such holder's Registrable Securities in any Shelf Registration Statement,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign such Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or Prospectus, or 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information relating to such holder (or any underwriter,
13
selling agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities for such holder) furnished to the Company
by or on behalf of such holder (or any underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities for such holder) expressly for use therein and (ii)
reimburse the Company and its directors and officers who sign such Shelf
Registration Statement for any legal or other expenses reasonably incurred by
the Company and such directors and officers in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by
an indemnified party under subsection (a) or (b) of this Section 5 of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under this Section
5, notify such indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under this Section 5 unless
the indemnifying party is materially prejudiced by the delay. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party under this Section 5 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, which consent will not be unreasonably
withheld, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for
in this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 5 in respect of
any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) 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 or liabilities (or actions in respect thereof),
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 or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information about such indemnifying party or indemnified party supplied by
14
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 hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
PRO RATA allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) Notwithstanding any other provision of this
Section 5, in no event will any Electing Holder be required to undertake any
liability or obligation under this Section 5 for an aggregate amount in excess
of the dollar amount of the proceeds (after deducting any fees, discounts and
commissions applicable thereto) received by such holder from the sale of such
holder's Registrable Securities giving rise to such liability or obligation.
(f) The obligations of the Company under this Section
5 shall be in addition to any liability that the Company may otherwise have to
any Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability that such Indemnified Person may
otherwise have to the Company. The remedies provided in this Section 5 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to an indemnified party at law or in equity.
6. UNDERWRITTEN OFFERING. Any holder of Registrable Securities
who desires to do so may, with the Company's prior written consent, which
consent may be withheld by the Company in its sole discretion, sell Registrable
Securities (in whole or in part) in an underwritten offering; provided, however,
the offering relates to at least 50% of the Securities sold pursuant to the
Subscription Agreement. In any such underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by, and the underwriting arrangements with respect thereto
(including the size of the offering) will be approved by, the holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company. No holder may
participate in any underwritten offering contemplated hereby unless (a) such
holder agrees to sell such holder's Registrable Securities to be included in the
15
underwritten offering in accordance with any approved underwriting arrangements,
(b) such holder completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting arrangements
and (c) if such holder is not then an Electing Holder, such holder returns a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(a) hereof within a reasonable amount of time before such underwritten
offering. The holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 4 hereof, expenses of their own counsel. The Company shall pay all
expenses customarily borne by issuers, including but not limited to filing fees,
the fees and disbursements of its counsel and independent public accountants and
any printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(l) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
holders of a majority of the Registrable Securities to be included in an
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to the Maximum Delay Period if and so long as the Delay Conditions exist.
7. RULE 144.
The Company agrees, for so long as any Registrable Securities
remain outstanding during any period in which the Company is subject to Section
13 of 15 (d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Registrable Securities pursuant
to Rule 144 of the Securities Act.
8. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Purchasers or the holders of
Registrable Securities for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Purchasers or any holder of Registrable
Securities may obtain such relief as may be required to specifically enforce the
Company's obligations hereunder. The Company further agrees to waive the defense
in any action for specific performance that a remedy at law would be adequate.
(b) OTHER REGISTRATION RIGHTS. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company shall not permit any securities other than the
Registrable Securities to be included in any Shelf Registration Statement.
16
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 2 hereof and this Section 8(c)(i), the Company has obtained the written
consent of holders of all outstanding Registrable Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of holders of a majority of the Registrable Securities (excluding
Registrable Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of holders whose Registrable Securities are
being sold pursuant to a Shelf Registration Statement and that does not affect
directly or indirectly the rights of other holders of Registrable Securities may
be given by the holders of a majority of Registrable Securities being sold by
such holders pursuant to such Shelf Registration Statement.
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be given as provided in the Subscription Agreement.
(e) PARTIES IN INTEREST. The parties to this Agreement intend
that all holders of Registrable Securities shall be entitled to receive the
benefits of this Agreement and that any Electing Holder shall be bound by the
terms and provisions of this Agreement by reason of such election with respect
to the Registrable Securities that are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto and any holder from time to time of
the Registrable Securities to the aforesaid extent. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be entitled to receive the benefits of and, if an Electing Holder, be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement to the aforesaid extent.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate 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 agreement.
(g) HEADINGS. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning, construction or interpretation hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to provisions relating to conflicts of law to the extent the application
of the laws of another jurisdiction would be required thereby.
(i) 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 in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
17
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
(j) SURVIVAL. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
holder.
(k) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
18
Please confirm by signing in the space provided below that the
foregoing correctly sets forth the agreement between the Company and you.
Very truly yours,
XXXXX INSTRUMENTS CORP.
By: /S/ XXXX X. XXXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President and
General Counsel
19
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Accepted and Agreed
______________________________
Name (Print)
By:__________________________________
Name:_________________________
Title:________________________
Date: ______________________________
Address:_____________________________
_____________________________
_____________________________
Telephone: _________________________
Facsimile: _________________________
20
EXHIBIT A
XXXXX INSTRUMENTS CORP.
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
------------------------------------
(Date)
Reference is hereby made to the Registration Rights Agreement
(the "Registration Rights Agreement") between Xxxxx Instruments Corp. (the
"Company") and the Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company [has filed/intends to file] with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-_ (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
[ ] shares of the Company's common stock, par value $0.01 per share (the
"Securities"). A copy of the Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Registrable
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the
Registration Rights Agreement to mean all or any portion of the Securities;
PROVIDED, HOWEVER, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
A-1
The term "RESTRICTED SECURITY" is defined in the Registration
Rights Agreement to mean any Security except any such Security that (i) the
resale of which has been registered pursuant to an effective registration
statement under the Securities Act and sold in a manner contemplated by the
Shelf Registration Statement, (ii) has been transferred in compliance with Rule
144 under the Securities Act (or any successor provision thereto) or is
transferable pursuant to paragraph (k) of such Rule 144 (or any successor
provision thereto), or (iii) has otherwise been transferred and a new Security
not subject to transfer restrictions under the Securities Act has been delivered
by or on behalf of the Company.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and the
Registrable Securities listed below in Item (3). The undersigned, by signing and
returning this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including without
limitation Section 5 of the Registration Rights Agreement as if the undersigned
Selling Securityholder were an original party thereto.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information is
accurate and complete:
QUESTIONNAIRE
Certain capitalized terms used in this Questionnaire are
defined in Appendix l attached hereto. Capitalized terms used in this
Questionnaire but not defined in Appendix 1 have the meanings given to them in
the accompanying letter.
(1) (a) Full legal name of Selling Securityholder:
_____________________________________________________________
(i) Is such Selling Securityholder a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(ii) In what state is such Selling Securityholder organized or
domiciled?
_____________________________
A-2
(b) Full legal name of Registered Holder (if not the same as in
(a) above) of Registrable Securities listed in Item (4) below:
_________________________________________________________
(2) Address for Notices to Selling Securityholder:
____________________________
____________________________
____________________________
Telephone: ____________________________
Fax: ____________________________
Contact Person: ____________________________
(3) Beneficial Ownership of Securities by Another Entity or Individual:
(a) Is another entity or individual the Beneficial Owner of any
Securities?
[ ] No (skip questions (b)-(e) below)
[ ] Yes (answer questions (b)-(e) below)
(b) What is the full legal name of such Beneficial Owner?
_____________________________________________________
(c) Is such Beneficial Owner a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(d) In what state is such Beneficial Owner organized or domiciled?
___________________________________________________
(e) Please provide the name, address and telephone number of a
contact person for such Beneficial Owner.
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
A-3
(4) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT A
BENEFICIAL OWNER OF ANY SECURITIES.
(a) Number of Registrable Securities (as defined in the
Registration Rights Agreement) Beneficially Owned:
___________________________________________ CUSIP No(s). of
such Registrable Securities: _______________________________
(b) Number of Securities other than Registrable Securities
Beneficially Owned:
______________________________________________________________
CUSIP No(s). of such other Securities:
____________________________________
(c) Number of Registrable Securities that the undersigned wishes
to be included in the Shelf Registration Statement:
__________________________________ CUSIP No(s). of such
Registrable Securities to be included in the Shelf
Registration Statement:
___________________________________________________________
(5) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (5), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT A BENEFICIAL OWNER OF ANY SHARES OF COMMON STOCK
OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN THE SECURITIES
LISTED ABOVE IN ITEM (4).
State any exceptions here:
(6) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5%
OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL
RELATIONSHIP WITH THE COMPANY (OR ITS PREDECESSORS OR AFFILIATES)
DURING THE PAST THREE YEARS.
State any exceptions here:
A-4
(7) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM
(4) ONLY AS FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE
SOLD FROM TIME TO TIME DIRECTLY BY THE UNDERSIGNED SELLING
SECURITYHOLDER OR, ALTERNATIVELY, THROUGH UNDERWRITERS, BROKER-DEALERS
OR AGENTS WHO MAY RECEIVE DISCOUNTS, CONCESSIONS OR COMMISSIONS FROM
THE SELLING STOCKHOLDER OR THE PURCHASER. SUCH REGISTRABLE SECURITIES
MAY BE SOLD IN ONE OR MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING
MARKET PRICES AT THE TIME OF SALE, AT PRICES RELATING TO THE PREVAILING
MARKET PRICES AT THE TIME OF SALE, AT VARYING PRICES DETERMINED AT THE
TIME OF SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (I) ON
ANY NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE
REGISTERED SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE, (II)
IN THE OVER-THE-COUNTER MARKET, (III) IN TRANSACTIONS OTHERWISE THAN ON
SUCH EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER MARKET, (IV)
THROUGH THE WRITING OF OPTIONS, WHETHER SUCH OPTIONS ARE LISTED ON AN
OPTION EXCHANGE OR OTHERWISE, OR (IV) THROUGH THE SETTLEMENT OF SHORT
SALES. IN CONNECTION WITH SALES OF THE REGISTRABLE SECURITIES OR
OTHERWISE, THE SELLING SECURITYHOLDER MAY ENTER INTO HEDGING
TRANSACTIONS WITH BROKER-DEALERS OR OTHER FINANCIAL INSTITUTIONS, WHICH
MAY IN TURN ENGAGE IN SHORT SALES OF THE REGISTRABLE SECURITIES IN THE
COURSE OF HEDGING THE POSITIONS THEY ASSUME. THE SELLING SECURITYHOLDER
MAY ALSO SELL REGISTRABLE SECURITIES SHORT AND DELIVER REGISTRABLE
SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR PLEDGE
REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL SUCH
SECURITIES.
State any exceptions here:
(8) Are you a Member, an affiliate of a Member, or a person associated with
a Member, of the National Association of Securities Dealers, Inc. (the
"NASD")?
Yes _____ No _____
If the answer to Question 8 is "yes", state (a) the name of any such
NASD Member, (b) the nature of your affiliation or association with
such NASD Member, (c) information as to such NASD Member's
participation in any capacity in the offering or the original placement
of the Securities, (d) the number of shares of equity securities or
face value of debt securities of the Company owned by you, (e) the date
such securities were acquired and (f) the price paid for such
securities.
_____________________________________________________________________
_____________________________________________________________________
____________________________________________.
A-5
(9) If you answered "yes"to Question 8 above, please fill out the following
table with respect to any purchases from the Company or any of its
Affiliates in a private place- ment within twelve months prior to the
date hereof (excluding your purchase of the Securities).
A-6
======================== ===================== ========================= =========================
Amount and Name Price or Other
Date of Purchase Seller of Securities Consideration
------------------------ --------------------- ------------------------- -------------------------
------------------------ --------------------- ------------------------- -------------------------
------------------------ --------------------- ------------------------- -------------------------
------------------------ --------------------- ------------------------- -------------------------
======================== ===================== ========================= =========================
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M. The Selling Securityholder also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in
connection with the Registration Statement and any amendments or supplements
thereto filed with the SEC pursuant to the Securities Act of 1933, as amended.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (9)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder acknowledges that material misstatements and
omissions of material facts in the Registration Statement and any amendments or
supplement thereto may give rise to civil and criminal liabilities to the
Company and to each officer and director of the Company signing the Registration
Statement and to other persons signing such document. As a result, in accordance
with the Selling Securityholder's obligation under Section 3(a) of the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
A-7
(i) to the Company:
Xxxxx Instruments Corp.
0000 Xxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Legal Department
(ii) with a copy to:
O'Melveny & Xxxxx, LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: J. Xxx Xxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities Beneficially Owned by such Selling Securityholder and the Registrable
Securities listed in Item (3) above). This Agreement shall be governed in all
respects by the laws of the State of California without giving effect to
provisions relating to conflicts of law to the extent the application of the
laws of another jurisdiction would be required thereby.
I confirm that, to the best of my knowledge and belief, the foregoing
statements (including without limitation the answers to this Questionnaire) are
correct.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated: __________________
_______________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of
Registrable Securities)
By: __________________________________
Name:
Title:
A-8
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
O'Melveny & Xxxxx, LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: J. Xxx Xxxxxx, Esq.
A-9
APPENDIX I
DEFINITIONS
For the purpose of this Questionnaire, the following
definitions apply:
1. AFFILIATE. As used in Questions 1 - 7 and Question 9, a
person is an "Affiliate" of a person if such person controls, is controlled by,
or is under common control with, another person. Please assume that an
"Affiliate" of the Company includes without limitation, any 5% stockholder of
the Company (including any person who owns, controls, or holds or holds an
option to acquire, and has the power to vote, 5% or more of the Company's
outstanding voting securities). "Control" is the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of an entity, whether through the ownership of voting securities, by
contract or otherwise.
As used in Question 8 of this Questionnaire, an "affiliate" of
an NASD member has the following meaning:
(1) a company which controls, is controlled by or is under common
control with a member;
(2) the term affiliate is presumed to include, but is not limited to,
the following:
(a) a company will be presumed to control a member if the
company beneficially owns 10% or more of the
outstanding voting securities of a member which is a
corporation, or beneficially owns a partnership
interest in 10% or more of the distributable profits
or losses of a member which is a partnership;
(b) a member will be presumed to control a company if the
member and persons associated with the member
beneficially own (i) 10% or more of the outstanding
subordinated debt of a company, (ii) 10% or more of
the outstanding voting securities of a company which
is a corporation or (iii) a partnership interest in
10% or more of the distributable profits or losses of
a company which is a partnership;
(c) a company will be presumed to be under common control
with a member if:
(i) the same natural person or company controls
both the member and company by beneficially
owning 10% or more of the outstanding voting
securities of a member or company which is a
corporation, or by beneficially owning a
partnership interest in 10% or more of the
distributable profits or losses of a member
or company which is a partnership; or
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(ii) a person having the power to direct or cause
the direction of the management or policies
of the member or the company also has the
power to direct or cause the direction of
the management or policies of the other
entity in question.
2. BENEFICIAL OWNER. A "Beneficial Owner" of a security
includes any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares voting
power and/or investment power with respect to such security. Voting power
includes "the power to vote, or to direct the voting, of such security" and
investment power includes "the power to dispose, or to direct the disposition,
of such security."
A person is also a Beneficial Owner of a security if he has
the right to acquire beneficial ownership of such security, at any time within
sixty days, including but not limited to, any right to acquire through: (a) the
exercise of an option, warrant or right, (b) the conversion of a convertible
security, (c) the power to revoke a trust, discretionary account or similar
arrangement, or (d) the automatic termination of a trust, discretionary account
or similar arrangement; provided, however, that if the acquisition of an option,
warrant, right, convertible security or power described in (a), (b) or (c) is
for the purpose of maintaining or obtaining control over the issuer of the
security, the holder of the option, warrant, right, convertible security or
power shall, immediately upon such acquisition and regardless of when it is
exercisable, be deemed a beneficial owner of the underlying securities.
The possession of the legal power to vote and/or direct the
disposition of securities, absent unusual circumstances, will be sufficient to
confer beneficial ownership. Such power may be held directly, or indirectly,
through one or more controlled entities.
3. MATERIAL RELATIONSHIP. The term "material relationship" has
not been defined by the Securities and Exchange Commission (the "SEC"). The SEC,
however, is likely to construe as material any relationship which tends to
impact arm's length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a relationship
with any organization of which you own, directly or indirectly, 10% more of the
outstanding voting stock, or in which you have some other substantial interest,
and with any person or organization with whom you have, or with whom any
relative (or any other person or organization as to which you have any of the
foregoing other relationships) has, a contractual relationship.
4. MEMBER. Rule 0120 of the NASD's Rules of Fair Practice
defines the term "member" to mean any individual, partnership, corporation or
other legal entity admitted to membership in the NASD, and Article l of the
NASD's By-Laws defines the term "person associated with a member" to mean every
sole proprietor, partner, officer, director, or branch manager of any member, or
any natural person occupying a similar status or performing similar functions,
or any natural person engaged in the investment banking or securities business
who is directly or indirectly controlling or controlled by such member (for
example, any employee), whether or not such person is registered or exempt from
registration with the NASD.
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