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EXHIBIT 99.4
NYTEST ENVIRONMENTAL INC.
REGISTRATION RIGHTS AGREEMENT
AGREEMENT made this 28th day of December, 1995 by and between Nytest
Environmental Inc. having an address at 00 Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxx Xxxx 00000 (the "Company") and Groundwater Technology, Inc., having an
address at 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx, XX 00000 (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company has, in connection with the issuance of a Note by
NEI/GTEL Environmental Laboratories, Inc., a wholly owned subsidiary of the
Company provided the Holder with the right to acquire up to 1,500,000 shares of
the Company's Common Stock, $.01 par value, subject to adjustment as provided
herein (the "Rights"); pursuant to such note dated the date of this Agreement
(the "Note").
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Holder" shall include the initial Holder and any permitted transferee
of the shares provided such transferee holds more than 50% of the shares or
securities convertible into the shares.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in paragraph 4.
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"Registrable Shares" means the Shares of Common Stock which maybe
issued to Holder upon the exercise of the Rights, and, any other shares of
Common Stock of the Company issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events) or upon exercise of such Rights; provided, however, that shares of
Common Stock which are Registrable Shares shall cease to be Registrable Shares
upon any sale pursuant to a Registration Statement, Rule 144 under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may from time to time, be in effect.
2. REGISTRATION.
(a) At any time from the date of this Agreement until December 31,
1998, if the Company proposes to file a Registration Statement for a public
offering for its own account or for the account of others, it will, promptly
give written notice to the Holder of its intention to do so and, upon the
written request of the Holder given within twenty (20) days after the Company
provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company, on only one occasion,
shall cause all Registrable Shares which the Company has been requested by the
Holder to register to be registered under the Securities Act to the extent
necessary to permit their sale or other disposition in accordance with the
intended method of distribution specified in the request of such Holder;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this paragraph 2 without obligation to the
Holder.
(b) The Holder's rights under this paragraph shall be subject to the
limitation that, in the event that the Company files a Registration Statement
for an underwritten public offering intending to distribute its Shares in an
underwritten offering, the inclusion of the Registrable Shares shall be upon the
condition that: (i) if requested by the managing underwriter as a condition of
the offering, they be sold through the underwriters on the same terms and
conditions as are applicable to the Company or all other selling stockholders of
the Company; or (ii) if such condition is imposed by the managing underwriter,
and the Holder does not wish to sell the Registrable Shares upon such terms and
conditions, the Holder will agree not to transfer or otherwise dispose of any
Registrable Shares for a period of time from the effective date of the
Registration Statement (not to exceed 120 days) specified by the managing
underwriter, provided such shares have been registered.
(c) All registration rights under this paragraph 2, shall terminate on
December 31, 1998 provided, however, such registration rights shall not so
terminate if prior to such date, the Company has provided notice to the Holder
as provided in Paragraph (a) herein.
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3. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall as expeditiously
as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective for the period of time
contemplated therein;
(b) prepare and file with the Commission any amendments and supplements
to the Registration Statement and the prospectus included in the Registration
Statement as may be necessary to keep the Registration Statement effective for a
period of not less than nine months from the effective date and comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Shares covered by such registration statement in accordance with the
Holders' intended method of disposition set forth in such registration statement
for such period;
(c) furnish to Holder such reasonable numbers of copies of the
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the selling
Stockholder may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Shares owned by the selling Stockholder and
promptly notify the selling stockholder at any time when a prospectus is
required to be delivered under the Securities Act, of the happening of any event
of which the Company has knowledge as a result of which the prospectus would
include an untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing; and
(d) use its best efforts to register or qualify the Registrable Shares
covered by the Registration Statement under the securities or Blue Sky laws of
such states as the selling Stockholders shall reasonably request, and do any and
all other acts and things that may be necessary or desirable to enable the
selling Stockholders to consummate the public sale or other disposition in such
states of the Registrable Shares owned by the selling Stockholder; provided,
however, that the Company shall not be required in connection with this
paragraph (d) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction.
(e) use its best efforts to list the Registrable Shares covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) cooperate with the selling holders of Registrable Shares and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Shares to be sold, such certificates to
be in such denominations and registered in such
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names as such holders or the managing underwriters may request at least two
business days prior to any sale of Registrable Shares;
(g) comply with all applicable rules and regulations under the
Securities Act and the Exchange Act;
For the purposes of this Agreement, the period of distribution of
Registrable Shares in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Shares
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Shares covered thereby or nine months after the
effective date thereof.
If the Company has delivered preliminary or final prospectuses to the
Holder and, after having done so, the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the Holder
and, if requested, the Holder shall immediately cease making offers of
Registrable Shares and return all prospectuses to the Company. The Company shall
promptly provide the Holder with revised prospectuses and, following receipt of
the revised prospectuses, the Holder shall be free to resume making offers of
the Registrable Shares.
4. ALLOCATION OF EXPENSES.
The Company will pay all Registration Expenses of all registrations
under this Agreement; provided, however, that if a registration is withdrawn at
the request of the Holder (other than as a result of information concerning the
business or financial condition of the Company which is made known to the Holder
after the date on which such registration was requested) and if the Holder
elects not to have such registration counted as the Company having fully
discharged its obligations to Holder under paragraph 2, the Holder shall pay the
portion of Registration Expenses in the proportion that the market value of
their Registrable Shares included in such registration bear to all of securities
included therein. For purposes of this Section, the term "Registration Expenses"
shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel and
accountants for the Company state Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any such registration, but
excluding underwriting discounts, the fees and expenses of Holder's own counsel
and selling commissions
5. INDEMNIFICATION.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, the Company will indemnify and
hold harmless the seller of such Registrable Shares, and its directors and
officers, each underwriter of such Registrable Shares, and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or
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several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws or otherwise, in so far as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, any offering circular or document related to such
registration or any amendment or supplement to such Registration Statement, and
any document incorporated therein by reference or arise out of or are based upon
the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) any
blue sky application or other document executed by the Company specifically for
that purpose or based upon written information furnished by the Company filed in
any state or other jurisdiction in order to qualify any or all of the
Registrable Shares under the securities laws thereof (any such application,
document or information herein called a "Blue Sky Application"), (iii) the
omission or alleged omission to state in any such registration statement,
prospectus, amendment or supplement or in any Blue Sky Applications executed or
filed by the Company, a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iv) any violation by the Company
or its agents of the Securities Act or, any rule or regulation promulgated under
the Securities Act applicable to the Company or its agents and relating to
action or inaction required of the Company in connection with such registration,
or (v) any failure to register or qualify the Registrable Shares in any state
where the Company or its agents has affirmatively undertaken or agreed in
writing that the Company (the undertaking of any underwriter chosen by the
Company being attributed to the Company) will undertake such registration or
qualification (provided that in such instance the Company shall not be so liable
if it has used its best efforts to so register or qualify the Registrable
Shares) and will reimburse each such seller, and such officer, director and
partner, each such underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action promptly after being
so incurred and the Company will reimburse such seller, underwriter and each
such controlling person for any legal or any other expenses reasonably incurred
by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action
promptly after being so incurred; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary prospectus or prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors, and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers,
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underwriters or controlling person may become subject under the Securities Act,
Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; provided, however, that the
obligations of such Stockholders hereunder shall be limited to an amount equal
to the proceeds to each Stockholder of Registrable Shares sold as contemplated
herein. Not in limitation of the foregoing, it is understood and agreed that the
indemnification obligations of any seller hereunder pursuant to any underwriting
agreement entered into in connection herewith shall be limited to the
obligations contained in this paragraph.
Each party entitled to Indemnification under this paragraph 5 (the
"Indemnified Party") shall give written notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; providing, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
The indemnities and obligations provided in this Section 8 shall
survive the sale or transfer of any Registrable Shares by such Holder.
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6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING.
In the event that Registrable Shares are sold pursuant to a
Registration Statement in an underwritten offering pursuant to sub-paragraph
2(a), the Company agrees to enter into an underwriting agreement containing
customary representations and warranties with respect to the business and
operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including without
limitation customary provisions with respect to indemnification by the Company
of the underwriters of such offering.
7. RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Shares to the public without registration, except as provided in
paragraph (c) below, at all times the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Shares forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 (or any successor rule) and, at any time
after it has become subject to such reporting requirements, of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed by the Company as
such holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing such holder to sell any Registrable Securities with
out registration
8. INFORMATION BY HOLDER.
The Holder shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
9. SELECTION OF UNDERWRITER.
In the case of any registration effected pursuant to this Agreement,
the Company shall have the right to designate the managing underwriter in any
underwritten offering.
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10. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon, and inure to
the benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto, provided that the rights of the Holder may
only be assigned in whole to a party who purchases not less than 50% of the
Shares or securities convertible into the Shares.
11. FURTHER ASSURANCES.
From and after the date hereof, all persons subject to or bound by this
Agreement shall from time to time, at the request of any such other person and
without further consideration, do, execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may
reasonably be requested or required more effectively to evidence and give effect
to the provisions, intent and purposes of this Agreement (including, without
limitation, certificates to the effect that this Agreement continues operative
and as to any defaults hereunder or modifications hereof).
12. NOTICE.
All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) upon delivery if delivered by hand; (ii) four business days subsequent
to mailing if mailed by express, certified or registered mail, with postage
prepaid, in the continental United States; (iii) two business days subsequent to
pick up by such courier if sent by a nationally or internationally recognized
overnight courier service that regularly maintains records of items picked up
and delivered; or (iv) when transmitted if sent by telecopier, provided that a
written acknowledgment of receipt signed by or on behalf of the recipient of the
telecopy is transmitted back to the sender by the recipient, as follows:
If to Holder: Groundwater Technology, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to
Holder's Parent: Groundwater Technology, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
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and to: Mintz, Levin, Cohn, Ferris, Glovsky & Popeo,
P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other person or address as Holder shall furnish to Company in
writing.
If to the Company: NEI/GTEL Environmental Laboratories, Inc.
c/o Nytest Environmental Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, President
Telecopier No.: (000) 000-0000
with a copy to
Company's Parent: Nytest Environmental Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
and to: Xxxxxxx X. Xxxxxx, Esq.
000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
and to: Xxxxxxxx, Xxxxxxxxx & Scope, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other person or address as the Company shall furnish to Holder in
writing.
13. GOVERNING LAW; INTERPRETATION.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and to be performed exclusively therein as to all matters, without reference to
the conflicts of law provision thereof.
(b) All pronouns and words shall be read in appropriate number and
gender, the masculine, feminine and neuter shall be interpreted interchangeably
and singular shall include the plural and vice versa, as the circumstances may
require.
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14. SUBMISSION TO JURISDICTION.
Each of the parties hereto irrevocably submits to the non-exclusive
jurisdiction of the federal and state courts located in the State of New York.
15. MISCELLANEOUS.
(a) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the Holder.
Any waiver or consent hereunder shall be effective only in the specific instance
and for the purpose for which it was given, and shall not constitute a
continuing waiver or consent.
(b) This Agreement may be executed in one or more counterparts and by
different parties hereto on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
(c) The Company recognizes that the rights of the Holder under this
Agreement are unique and, accordingly, the Holders shall, in addition to such
other remedies as may be available to them at law or in equity, have the right
to enforce their rights hereunder by actions for injunctive relief and specific
performance to the extent permitted by law. This Agreement is not intended to
limit or abridge any rights of the Holders which may exist apart from this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals to this instrument, as of the date first above written.
NYTEST ENVIRONMENTAL INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
HOLDER:
GROUNDWATER TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxx
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Print Name: Xxxx Xxxxx
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