EXHIBIT 10.52
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of April 18, 2003, by and between ▇▇▇▇▇ Instruments Corp., a
Delaware corporation (the "COMPANY") and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("EXECUTIVE").
R E C I T A L S:
A. WHEREAS, Executive beneficially owns shares of the Company's
Common Stock, $0.01 par value per share (the "COMMON STOCK");
and
B. WHEREAS, Executive and the Company are parties to that certain
Transition Agreement, dated as of the date hereof, pursuant to
which, among other things, the Company agreed to provide
resale registration rights regarding Executive's Common Stock.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "COMMISSION" shall mean the Securities and Exchange Commission or
any other U.S. federal agency at the time administering the Securities Act.
1.2 "COMMON STOCK" shall mean shares of the Company's Common Stock,
$0.01 par value per share.
1.3 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
1.4 "REGISTRABLE SECURITIES" shall mean the shares of Common Stock that
were beneficially owned by Executive as of May 31, 2003.
1.5 The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
1.6 "REGISTRATION EXPENSES" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Section 2.1
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, accounting fees, blue sky fees and including the reasonable
fees and expenses (up to $15,000 in the aggregate for all registrations effected
hereunder) of one attorney on behalf of Executive (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company).
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1.7 "RESTRICTED SECURITIES" shall mean any Registrable Security except
any such Registrable Security that (i) has been sold by Executive pursuant to an
effective registration statement under the Securities Act, (ii) has been
transferred by Executive 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) may be sold under Rule 144, or a
successor rule, in a three-month period along with all other Registrable
Securities then held by Executive.
1.8 "SECURITIES" shall mean Common Stock.
1.9 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar United States federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
1.10 "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and any stock transfer taxes applicable to the Registrable
Securities registered by Executive.
2. REGISTRATION RIGHTS.
2.1 REGISTRATION ON FORM S-3.
(a) REGISTRATION. As soon as practicable following the filing
by the Company with the Commission of the Company's annual report on Form 10-K
for the fiscal year ended February 28, 2003 but in no event later than May 30,
2003, the Company will file for registration of the resale by Executive of all
of the Registrable Securities then held by Executive. The Company hereby
represents that it is eligible to use Form S-3 to register the resale of
Registrable Securities owned by Executive on the date hereof.
(b) LIMITATIONS. Notwithstanding the foregoing, the Company
shall not be obligated to take any action pursuant to this Section 2.1: (i) if
Form S-3 is not available to the Company for such offering of the Registrable
Securities by Executive; (ii) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act; or (iii) if the Company has already effected one
registration on Form S-3 for Executive pursuant to this Section 2.1.
2.2 EXPENSES OF REGISTRATION.
(a) REGISTRATION EXPENSES. The Company shall bear all
Registration Expenses in connection with the registration pursuant to Section
2.1.
(b) SELLING EXPENSES. All Selling Expenses relating to
securities registered on behalf of Executive shall be borne by Executive.
2.3 REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will:
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(a) keep Executive advised in writing as to the initiation of
such registration, qualification and compliance and as to the completion
thereof;
(b) subject to the timing described in Section 2.1(a), as soon
as practicable, prepare and file with the Commission a registration statement
with respect to such securities and use its commercially reasonable efforts to
cause such registration statement to promptly become and remain effective until
the earlier of (I) the sale under such registration statement of all the
Registrable Securities registered thereunder and (II) 180 days from the
effective date of such registration statement; provided, however, that if prior
to the expiration of the time period specified in this paragraph (b)Executive
executes and honors a lockup agreement in accordance with Section 2.9 of this
Agreement, then the 180 day period referred to in this paragraph (b) shall be
extended by the number of days that Executive is subject to the lockup;
(c) furnish to Executive such reasonable number of copies of
the final prospectus in order to facilitate the public offering of such
securities;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(e) notify Executive at any time when a prospectus relating to
Registrable Securities is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading in the light of the
circumstances then existing; and
(f) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
2.4 INDEMNIFICATION.
(a) BY COMPANY. To the extent permitted by law, the Company
will indemnify and hold harmless Executive, legal counsel, accountants and
agents for Executive, any underwriter (as defined in the Securities Act) for
Executive and each person, if any, who controls Executive or such underwriter
within the meaning of the Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they or any of them may
become subject under the Securities Act, the Exchange Act or any state
securities laws, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise from or are based upon any of the following
statements, omissions or violations (collectively a "VIOLATION"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement (including any incorporated document), including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto; (ii) 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; or (iii) any violation or alleged violation by the
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Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities laws; and the Company will reimburse Executive, legal counsel,
accountants and agents and each such underwriter or 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;
provided, however, that the indemnity agreement contained in this Section 2.4(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises from or is based upon a Violation that
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by Executive, agent or
any underwriter or controlling person; provided further, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of Executive, legal counsel, accountants, agent or any
underwriter, or any person controlling any underwriter, from whom the person
asserting any such losses, claims, damages or liabilities purchased shares in
the offering, if a copy of the prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of Executive or any such underwriter to such
person, if required by law to have been so delivered, at or prior to the written
confirmation of the sale of the shares to such person, and if the prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. If Executive is represented by counsel other
than counsel for the Company, the Company will not be obligated under this
Section 2.4(a) to reimburse legal fees and expenses of more than one counsel on
behalf of Executive.
(b) BY EXECUTIVE. To the extent permitted by law, Executive
will indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, legal counsel and
accountants for the Company, any underwriter (within the meaning of the
Securities Act) for the Company, any person who controls such underwriter, any
other person selling securities in such registration statement or any of its
directors or officers or any person who controls such person against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or any
state securities laws, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise from or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by Executive
expressly for use in connection with such registration; and Executive will
reimburse any person intended to be indemnified pursuant to this Section 2.4(b)
for any legal or other expenses reasonably incurred by such person in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 2.4(b) shall not apply to amounts paid in settlement of any such loss,
claim damage, liability or action if such settlement is effected without the
consent of Executive (which consent shall not be unreasonably withheld),
provided, that with respect to Executive, in no event shall any indemnity under
this Subsection 2.4(b) exceed the net proceeds from the offering received by
Executive, unless such liability arises out of or is based on willful misconduct
by Executive.
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(c) PROCEDURES. Each party entitled to indemnification under
this Section 2.4 (the "INDEMNIFIED PARTY") shall give 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, provided 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
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, 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 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. 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
to such claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 2.4 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
2.5 INFORMATION BY EXECUTIVE. Executive shall furnish to the Company
such information regarding Executive or the Registrable Securities held by him
and the distribution proposed by him as the Company may request in writing and
only as shall be necessary to enable the Company to comply with the provisions
hereof in connection with any registration, qualification or compliance referred
to in this Agreement.
2.6 ASSIGNMENT. Neither this Agreement nor any of the rights granted to
Executive hereunder are assignable by Executive.
2.7 TERMINATION. The rights granted pursuant to this Section 2 shall
terminate on the earlier of (i) the date that is 180 days after the effective
date of the first registration statement filed by the Company pursuant to
Section 2.1 and (ii) at such time as the Registrable Securities then held by
Executive cease to be Restricted Securities; provided, however, that if prior to
the expiration of the time period specified in Section 2.3(b) Executive executes
and honors a lockup agreement in accordance with Section 2.9 of this Agreement,
then the 180 day period referred to in this Section 2.7 shall be extended by the
number of days that Executive is subject to the lockup.
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2.8 MATERIAL INFORMATION. In the event the Company issues to Executive
a notice under Section 2.3(e) hereof, Executive agrees not to sell or otherwise
distribute any Registrable Securities covered by the prospectus in question
until such time as the Company shall have delivered a notice stating that such
prospectus no longer includes an untrue statement of material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading in the light of the circumstances then
existing or the Company delivers to Executive an amended prospectus that does
not include an untrue statement of material fact or omits to state a material
fact required to be stated therein or necessary to make the statements made
therein not misleading in the light of the circumstances then existing.
2.9 "MARKET STAND-OFF" AGREEMENT. Executive hereby agrees that he
shall, to the extent requested by the Company or an underwriter or placement
agent of the Common Stock (or other securities of the Company), enter into the
same lockup agreement as is entered into by each director and executive officer
of the Company in connection with an offering by the Company of at least 500,000
shares of the Company's common stock; provided, however, that this undertaking
shall terminate at such time as Executive owns less than 1,000,000 shares of
Common Stock. The underwriters in connection with an underwritten public
offering by the Company are intended third party beneficiaries of this Section
2.9 and shall have the right, power and authority to enforce the provisions
hereof as though they were a party hereto. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to the
Registrable Securities of Executive during any such market stand-off period.
2.10 MANNER OF SALE RESTRICTIONS. As a material inducement to the
Company to enter into this Agreement, Executive agrees that he shall not make
sales of his Registrable Securities in blocks of less than 50,000 shares at any
one time during from the date hereof through the 180 day period that the
registration statement is effective; provided, however, that Executive may
during such period sell, in the aggregate, 15,000 shares without regard to such
limitation. Executive agrees, if requested, to advise the Company of sales of
shares made by Executive and provided, further that if prior to the expiration
of the time period specified in Section 2.3 (b) Executive executes and honors a
lockup agreement in accordance with Section 2.9 of this Agreement, then the 180
day period referred to in this Section 2.10 shall be extended by the number of
days that Executive is subject to the lockup. The provisions of this Section
2.10 shall not apply if the registration statement to be filed by the Company
under this Agreement is not effective prior to July 1, 2003 but the provisions
of this Section 2.10 shall again be applicable at such time as said registration
statement becomes effective.
3. MISCELLANEOUS.
3.1 GOVERNING LAW. This Agreement shall be deemed to have been executed
and delivered within the State of California, and the rights and obligations of
the parties hereunder shall be construed and enforced in accordance with, and
governed by, the laws of the State of California without regard to principles of
conflict of laws.
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3.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof. This Agreement or any term hereof may be amended, waived,
discharged or terminated by a written instrument signed by the President of the
Company and Executive.
3.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be deemed given if in writing and mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to Executive, at such address as set forth on the
signature page attached to this Agreement, or at such other address as Executive
shall have furnished to the Company in writing, or (b) if to the Company, at the
address of its principal offices and addressed to the attention of the Corporate
Secretary or at such other address as the Company shall have furnished to
Executive.
3.4 SEVERABILITY. If any provision of this Agreement or the application
thereof is held invalid, the invalidity shall not affect other provisions or
applications of this Agreement which can be given effect without the invalid
provisions or applications and to this end the provisions of this Agreement are
declared to be severable.
3.5 COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart, when executed, shall have the efficacy of a signed original.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
3.6 ARBITRATION. Any controversy arising out of or relating to this
Agreement, its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, shall be
submitted to final and binding arbitration, to be held in Orange County,
California in accordance with California Civil Procedure Code ▇▇.▇▇.
1282-1284.2, provided, however, that provisional injunctive relief may, but need
not, be sought in a court of law while arbitration proceedings are pending, and
any provisional injunctive relief granted by such court shall remain effective
until the matter is finally determined by the Arbitrator. In the event either
party institutes arbitration under this Agreement, the party prevailing in any
such proceeding shall be entitled, in addition to all other relief, to
reasonable attorneys' fees relating to such arbitration. The non-prevailing
party shall be responsible for all costs of the arbitration, including but not
limited to, the arbitration fees, court reporter fees, etc.
3.7 HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth above.
"COMPANY" ▇▇▇▇▇ INSTRUMENTS CORP.,
a Delaware corporation
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
"EXECUTIVE" /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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