EXHIBIT 4.10
EXECUTION COPY
RESALE REGISTRATION RIGHTS AGREEMENT
BETWEEN
APOGENT TECHNOLOGIES INC.,
THE ISSUER
AND
THE SEVERAL SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTIES HERETO,
AS GUARANTORS
AND
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
ABN AMRO ROTHSCHILD LLC
UBS WARBURG LLC
DATED AS OF OCTOBER 10, 2001
TABLE OF CONTENTS
PAGE
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1. Definitions................................................ 1
2. Shelf Registration......................................... 4
3. Additional Amounts......................................... 6
4. Registration Procedures.................................... 7
5. Registration Expenses...................................... 14
6. Indemnification and Contribution........................... 15
7. Rule 144A.................................................. 18
8. Participation in Underwritten Registrations................ 18
9. Selection of Underwriters.................................. 19
10. Miscellaneous.............................................. 19
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of October 10, 2001,
among Apogent Technologies Inc., a Wisconsin corporation (together with any
successor entity, herein referred to as the "ISSUER"), and the several
subsidiary guarantors from time to time parties hereto (collectively, the
"GUARANTORS") and Xxxxxx Brothers Inc., Credit Suisse First Boston Corporation,
Banc of America Securities LLC, ABN AMRO Rothschild LLC and UBS Warburg LLC
(collectively, the "INITIAL PURCHASERS").
Pursuant to the Purchase Agreement, dated October 4, 2001, among the
Issuer, the Guarantors and the Initial Purchasers (the "PURCHASE AGREEMENT"),
the Initial Purchasers have agreed to purchase from the Issuer $250,000,000
aggregate principal amount of 2.25% Senior Convertible Contingent Debt
Securities (the "CODES") due 2021, together with the several guarantees forming
a part thereof (the "GUARANTEES" and, together with the CODES, the "SECURITIES")
(or up to $300,000,000 aggregate principal amount of CODES to the extent the
Initial Purchasers exercise their option to purchase additional Securities, as
set forth in the Purchase Agreement). The CODES initially will be convertible
into fully paid, nonassessable common stock, par value $0.01 per share, of the
Issuer (the "COMMON STOCK") on the terms, and subject to the conditions, set
forth in the Indenture (as defined herein). To induce the Initial Purchasers to
purchase the Securities, the Issuer and the Guarantors have agreed, pursuant to
the Purchase Agreement, to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
ADDITIONAL AMOUNTS: As defined in Section 3(a) hereof.
ADDITIONAL AMOUNTS PAYMENT DATE: Each April 15 and October 15.
AGREEMENT: This Resale Registration Rights Agreement, as amended,
modified or otherwise supplemented from time to time in accordance with the
terms hereof.
BLUE SKY APPLICATION: As defined in Section 6(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: A day other than a Saturday or Sunday or any day on
which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble hereto.
CREDIT AGREEMENT: The Credit Agreement dated as of December 1, 2000
among the Issuer, the Guarantors and the several lenders parties thereto,
as such Credit
Agreement is amended, modified or supplemented from time to
time in accordance with the terms thereof.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii) hereof.
EXCHANGE ACT: Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder.
GUARANTEES: As defined in the preamble hereto.
GUARANTORS: As defined in the preamble hereto.
HOLDER: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
HOLDER QUESTIONNAIRE: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of October 10, 2001, among the
Issuer, the Guarantors and The Bank of New York, as trustee (the
"TRUSTEE"), pursuant to which the Securities are to be issued, as such
Indenture is amended, modified or supplemented from time to time in
accordance with the terms thereof.
INITIAL PURCHASERS: As defined in the preamble hereto.
INITIAL SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
INITIAL SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i)
hereof.
INTEREST PAYMENT DATE: As defined in the Indenture.
ISSUER: As defined in the preamble hereto.
MAJORITY OF HOLDERS: Holders holding more than 50% of the aggregate
principal amount of CODES outstanding; provided that, for purpose of this
definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities when issued upon conversion of the CODES shall be
deemed to hold an aggregate principal amount of CODES (in addition to the
principal amount of CODES held by such holder) equal to the product of (x)
the number of such shares of Common Stock received upon conversion of the
CODES and then held by such holder and (y) the prevailing conversion price,
such prevailing conversion price as determined in accordance with the
Indenture.
NASD: National Association of Securities Dealers, Inc.
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PERSON: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a
government or agency or political subdivision thereof.
PURCHASE AGREEMENT: As defined in the preamble hereto.
PROSPECTUS: The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by
all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
QUESTIONNAIRE DEADLINE: As defined in Section 2(b) hereof.
RECORD HOLDER: With respect to any Date, each Person who is a Holder
on the record date with respect to the Interest Payment Date on which such
Additional Amounts Payment Date shall occur. In the case of a Holder of
shares of Common Stock issued upon conversion of the Securities, "Record
Holder" shall mean each Person who is a Holder of shares of Common Stock
which constitute Transfer Restricted Securities on the 15th day preceding
the relevant Additional Amounts Payment Date.
REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
ROLL-UP DATE: December 31, 2002 and the last day of any calendar
month in which the consolidated net sales or consolidated total assets of
the companies which are then guarantors of the CODES becomes less than 90%
of the consolidated net sales or consolidated total assets, as the case may
be, of the entities which then guarantee the Issuer's obligation under the
Credit Agreement.
SALE NOTICE: As defined in Section 4(e) hereof.
SECURITIES: As defined in the preamble hereto.
SECURITIES ACT: Securities Act of 1933, as amended, and the rules and
resolutions of the Commission thereunder.
SELLING HOLDERS: Any Holder who sells or otherwise disposes of its
CODES pursuant to a Shelf Registration Statement.
SHELF FILING DEADLINE: As defined in Section 2(a)(ii) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(ii) hereof.
SUSPENSION NOTICE. As defined in Section 4(c) hereof.
SUSPENSION PERIOD. As defined in Section 4(b)(i) hereof.
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TIA: Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the
date the Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each Security and each share of
Common Stock issued upon conversion of the CODES until the earlier of:
(i) the date on which such Security or such share of Common Stock
issued upon conversion of the CODES has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statements;
(ii) the date on which such Security or such share of Common
Stock issued upon conversion of the CODES is transferred in compliance
with Rule 144 under the Securities Act or may be sold or transferred by
a person who is not an affiliate of the Issuer pursuant to Rule 144
under the Securities Act (or any other similar provision then in force)
without any volume or manner of sale restrictions thereunder; or
(iii) the date on which such Security or such share of Common
Stock issued upon conversion of the CODES ceases to be outstanding
(whether as a result of redemption, repurchase and cancellation,
conversion or otherwise).
UNDERWRITER: Any underwriter participating in any distribution
pursuant to a Shelf Registration Statement.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A transaction in
which Securities registered with the Commission pursuant to this Agreement
are to be sold to one or more Underwriters for reoffering to the public.
2. SHELF REGISTRATION.
(a) The Issuer and the Guarantors shall:
(i) not later than 90 days after the date hereof (the "INITIAL
SHELF FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (together with any
amendments thereto, and including any documents incorporated by
reference therein, the "INITIAL SHELF REGISTRATION STATEMENT"), which
Initial Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities held by Holders that have provided the
information required pursuant to the terms of Section 2(b) hereof;
(ii) not later than each Roll-up Date (each such date, together
with the Initial Shelf Filing Deadline, is herein referred to as a
"SHELF FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (each such registration
statement, together with any amendments thereto, and including any
documents incorporated by reference therein, is herein referred to as a
"SHELF REGISTRATION STATEMENT" and all such Shelf Registration
Statements
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and the Initial Shelf Registration Statement are herein collectively
referred to as the "SHELF REGISTRATION STATEMENTS"), which Shelf
Registration Statement shall (A) reflect the guarantees by the entities
who are required to become guarantors following the Roll-up Date
pursuant to the Indenture and (B) provide for resales of all Transfer
Restricted Securities held by Holders that have provided the
information required pursuant to the terms of Section 2(b) hereof;
(iii) cause each Shelf Registration Statement to be declared
effective by the Commission not later than 180 days after the date
hereof, in the case of the Initial Registration Statement, or 30 days
after the applicable Roll-up Date, in the case of any other Shelf
Registration Statement (the "EFFECTIVENESS TARGET DATE"); and
(iv) keep each Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of
Section 4(b) hereof to the extent necessary to ensure that (A) it is
available for resales by the Holders of Transfer Restricted Securities
entitled to the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act for a period (the
"EFFECTIVENESS PERIOD") of:
(1) two years following the last date of original issuance
of the CODES;
(2) the date when all of the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to Rule 144(k)
under the Securities Act or any successor rule thereto; and
(3) the date when all of the Transfer Restricted Securities
are convertible that are owned by Holders who complete and deliver
in a timely manner the Questionnaire described below are
registered under the Shelf Registration Statements and disposed of
in accordance with the Shelf Registration Statements.
(b) To have its Transfer Restricted Securities included in the
Shelf Registration Statements pursuant to this Agreement, each Holder
shall complete the Selling Securityholder Notice and Questionnaire, the
form of which is contained in Exhibit A to this Agreement (the
"QUESTIONNAIRE"), and deliver it to the Issuer prior to or on the 20th
Business Day after such Holder's receipt of a request therefor by the
Issuer in writing (which request shall include a copy of the
Questionnaire) (such deadline, the "QUESTIONNAIRE DEADLINE"). Prior to
such time, each Holder may complete the Questionnaire and deliver it to
the Issuer prior to such request and, as a result, shall be entitled to
have its Transfer Restricted Securities included in the Initial Shelf
Registration Statement filed with the Commission. In addition, upon
receipt of written request for additional information from the Issuer,
each Holder who intends to be named as a Selling Holder in the Shelf
Registration Statements shall furnish to the Issuer in writing, within
20 Business Days after such Holder's receipt of such request, such
additional information regarding such Holder and the proposed
distribution by such Holder of its Transfer Restricted
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Securities, in connection with the Shelf Registration Statements or
Prospectuses or Preliminary Prospectuses included therein and in any
application to be filed with or under state securities law, as the
Issuer may reasonably request. In connection with all such requests for
information from Holders of Transfer Restricted Securities, the Issuer
shall notify such Holders of the requirements set forth in this
paragraph regarding their obligation to provide the information
requested pursuant to this Section. No Holder of Transfer Restricted
Securities shall be entitled to Additional Amounts pursuant to Section
3 hereof unless such Holder shall have provided all such reasonably
requested information prior to or on the Questionnaire Deadline. Each
Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuer all information required to be
disclosed in order to make information previously furnished to the
Issuer by such Holder not materially misleading.
3. ADDITIONAL AMOUNTS.
(a) If:
(i) any Shelf Registration Statement is not filed with the
Commission prior to or on the applicable Shelf Filing Deadline;
(ii) any Shelf Registration Statement has not been declared
effective by the Commission prior to or on the applicable
Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof, any
Shelf Registration Statement is filed and declared effective but,
during the applicable Effectiveness Period, shall thereafter cease
to be effective or fail to be usable for its intended purpose
without being succeeded within five Business Days by a post-
effective amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective;
(iv) prior to or on the 30th day following a Roll-up Date,
the applicable Shelf Registration Statement has not been declared
effective by the Commission; or
(v) (A) prior to or on the 45th or 60th day, as the case may
be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90
days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (v), a
"REGISTRATION DEFAULT"), the Issuer and the Guarantors jointly and severally
hereby agree to pay additional amounts ("ADDITIONAL AMOUNTS") with respect to
the Transfer Restricted Securities from and including the day following the
Registration Default to but excluding the day on which the Registration Default
has been cured, accruing at a rate:
(A) in respect of the CODES, to each holder of CODES,
(x) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing,
equal to 0.25% per annum of the principal amount of
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the CODES, and (y) with respect to the period commencing on
the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of
the principal amount of the CODES; provided that in no event
shall Additional Amounts accrue at a rate per year exceeding
0.50% of the principal amount of the CODES; and
(B) in respect of any shares of Common Stock, to each
holder of shares of Common Stock issued upon conversion of
the CODES, (x) with respect to the first 90-day period in
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount
of the converted CODES, and (y) with respect to the period
commencing the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50%
per annum of the principal amount of the converted CODES;
provided that in no event shall Additional Amounts accrue at
a rate per year exceeding 0.50% of the principal amount of
the converted CODES.
(b) All accrued Additional Amounts shall be paid in arrears to
Record Holders by the Issuer or the Guarantors on each Additional
Amounts Payment Date by wire transfer of immediately available funds or
by federal funds check. Following the cure of all Registration Defaults
relating to any particular CODES or share of Common Stock issued upon
conversion of the CODES, the accrual of Additional Amounts with respect
to such CODES or share of Common Stock will cease. The Issuer and the
Guarantors agree to deliver all notices, certificates and other
documents contemplated by the Indenture in connection with the payment
of Additional Amounts.
All obligations of the Issuer and the Guarantors set forth in this
Section 3 that are outstanding with respect to any Transfer Restricted Security
at the time such Security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for such
Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the registration of the Securities, the Issuer
and the Guarantors shall comply with all the provisions of Section 4(b)
hereof and shall effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission the Initial
Shelf Registration Statement relating to the registration on any
appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statements and any
Prospectuses required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Issuer and the Guarantors shall:
(i) Subject to any notice by the Issuer and the Guarantors in
accordance with this Section 4(b) of the existence of any fact or event
of the kind
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described in Section 4(b)(iv)(E), keep the Shelf Registration
Statements continuously effective during the Effectiveness Period; upon
the occurrence of any event that would cause any Shelf Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable for resale
of Transfer Restricted Securities during the Effectiveness Period, the
Issuer shall file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter.
Notwithstanding the foregoing, the Issuer or the Guarantors may suspend
the effectiveness of any Shelf Registration Statement by written notice
to the Holders for a period not to exceed an aggregate of 45 days in
any 90-day period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of which
the Shelf Registration Statement would, in the Issuer's judgment,
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 not misleading; and
(y) the Issuer reasonably determines that the disclosure
of such event at such time would have a material adverse effect
on the business of the Issuer and its subsidiaries taken as a
whole;
provided that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate
such transaction, the Issuer may extend a Suspension Period from 45
days to 60 days; provided, however, that Suspension Periods shall not
exceed an aggregate of 90 days in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statements as may
be necessary to keep the Shelf Registration Statements effective during
the Effectiveness Period; cause the Prospectuses to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities
Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by the Shelf Registration Statements during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf Registration
Statements or supplement to the Prospectuses.
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(iii) Cause any Person that becomes a Guarantor on any Roll-up
Date to promptly execute and deliver an acknowledgement pursuant to
Section 13.5 of the Indenture acknowledging that such Person shall
become a party to this Agreement; the form of such acknowledgment is
attached hereto as Exhibit B.
(iv) Advise the Underwriter(s), if any, and Selling Holders
promptly (but in any event within five Business Days) and, if requested
by such Persons, to confirm such advice in writing:
(A) when any Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments to any
Shelf Registration Statement or amendments or supplements to any
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of any Shelf Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding
purposes,
(D) of the commencement of any Suspension Period, or
(E) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement
of a material fact made in any Shelf Registration Statement, the
Prospectus contained therein, any amendment or supplement thereto,
or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf
Registration Statement or the Prospectus in order to make the
statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of any Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Issuer and the Guarantors shall obtain the withdrawal or
lifting of such order at the earliest possible time and will provide
to the Initial Purchasers and each Holder who is named in the Shelf
Registration Statement prompt notice of the withdrawal of any such
order.
(v) Furnish to each of the Selling Holders and each of the
Underwriter(s), if any, before filing with the Commission, a copy of
each Shelf Registration Statement and copies of any Prospectus included
therein or any amendments or supplements to the Shelf Registration
Statement or Prospectus
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(other than documents incorporated by reference after the initial
filing of the Shelf Registration Statement), which documents will be
subject to the review of such Selling Holders and Underwriter(s), if
any, for a period of at least ten Business Days (in the case of the
Shelf Registration Statement and Prospectus) and two Business Days (in
the case of any amendment or supplement thereto), and neither the
Issuer nor the Guarantors will file the Shelf Registration Statement or
Prospectus or any amendment or supplement to the Shelf Registration
Statement or Prospectus (other than documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement or the Underwriter(s), if
any, shall reasonably object prior to the filing thereof. A Selling
Holder or Underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission.
(vi) Make available at reasonable times for inspection by one or
more representatives of the Selling Holders, designated in writing by a
Majority of Holders whose Transfer Restricted Securities are included
in any Shelf Registration Statement, any Underwriter, and any attorney
or accountant retained by such Selling Holders or any of the
Underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuer and the Guarantors as shall be
reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the Securities and
exercise any applicable due diligence responsibilities, and cause the
Issuer's and the Guarantors' officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the Selling Holders, Underwriter,
attorney or accountant in connection with the Shelf Registration
Statement after the filing thereof and before its effectiveness,
provided, however, that any information designated by the Issuer as
confidential at the time of delivery of such information shall be kept
confidential by the recipient thereof.
(vii) If requested by any Selling Holder, promptly incorporate in
each Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such Selling Holders and Underwriter(s), if any, may reasonably
request to have included therein, including, without limitation: (1)
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, (2) information with respect to the principal
amount of Securities or number of shares of Common Stock being sold to
such Underwriter(s), (3) the purchase price being paid therefor and (4)
any other terms of the offering of the Transfer Restricted Securities
to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as reasonably
practicable after the Issuer and the Guarantors are notified of the
matters to be incorporated in such Prospectus supplement or post-
effective amendment.
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(viii) Furnish to each Selling Holder and each of the
Underwriter(s), if any, without charge, at least one copy of each Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto (and any documents incorporated by reference therein
or exhibits thereto (or exhibits incorporated in such exhibits by
reference) as such Person may request). (ix) Deliver to each Selling
Holder and each of the Underwriter(s), if any, without charge, as many
copies of each Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Issuer in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iv) (E), the Issuer and the Guarantors hereby
consent to the use of each Prospectus and any amendment or supplement
thereto by each of the Selling Holders and each of the Underwriter(s),
if any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.
(ix) Deliver to each Selling Holder and each of the
Underwriter(s), if any, without charge, as many copies of each
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to
any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section
4(b)(iv) (E), the Issuer and the Guarantors hereby consent to the use
of each Prospectus and any amendments or supplement thereto by each of
the Selling Holders and each of the Underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(x) The Issuer and the Guarantors shall:
(A) upon request, furnish to each Selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
Underwriters in primary Underwritten Offerings for Selling
Holders, upon the date of closing of any sale of Transfer
Restricted Securities in an Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by the Chief Financial Officer of the Issuer and of
each of the Guarantors confirming, as of the date thereof,
the matters set forth in Section 5(f) of the Purchase
Agreement and such other matters as such parties may
reasonably request ;
(2) opinions, each dated the date of such closing, of
counsel to the Issuer and the Guarantors covering such of
the matters as are customarily covered in legal opinions to
Underwriters in connection with Underwritten Offerings of
securities; and
(3) customary comfort letters, dated the date of such
closing, from the Issuer's and the Guarantors' independent
accountants (and from any other accountants whose report is
contained or incorporated by reference in the Shelf
Registration Statements) in the customary form and covering
matters of the type customarily covered in comfort letters
to Underwriters in connection with Underwritten Offerings of
securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no
less protective than those set forth in Section 6 hereof with
respect to all parties to be indemnified; and
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(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Selling Holders pursuant to this clause (x).
(xi) Before any public offering of Transfer Restricted
Securities, cooperate with the Selling Holders, the Underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions in the United States
as the Selling Holders or Underwriter(s), if any, may reasonably
request and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statements;
provided, however, that neither the Issuer nor any Guarantor shall be
required (A) to register or qualify as a foreign corporation or a
dealer of securities where it is not now so qualified or to take any
action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (B) to subject itself
to taxation in any such jurisdiction if it is not now so subject.
(xii) Cooperate with the Selling Holders and the Underwriter(s),
if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or
the Underwriter(s), if any, may request at least two Business Days
before any sale of Transfer Restricted Securities made by such
Underwriter(s).
(xiii) Use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statements to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the Underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities.
(xiv) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iv)(E) hereof shall exist or have
occurred, use their reasonable best efforts to prepare a supplement or
post-effective amendment to each Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
(xv) Provide CUSIP numbers for all Transfer Restricted Securities
not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee under the Indenture with
certificates for the Securities that are in a form eligible for
deposit with The Depository Trust Company.
12
(xvi) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xvii) Otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the Exchange Act.
(xviii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Initial Shelf Registration
Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the holders of CODES to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute and
use their reasonable best efforts to cause the Trustee thereunder to
execute all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(xix) Cause all Transfer Restricted Securities covered by the
Shelf Registration Statements to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system on which
similar securities issued by the Issuer are then listed or quoted.
(xx) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the
Initial Shelf Registration Statement.
(xxi) If requested by the Underwriters, make appropriate officers
of the Issuer and the Guarantors available to the Underwriters for
meetings with prospective purchasers of the Transfer Restricted
Securities and prepare and present to potential investors customary
"road show" or marketing materials in a manner consistent with other
new issuances of other securities similar to the Transfer Restricted
Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Issuer of the existence of any fact of the kind described in Section
4(b)(iv)(E) hereof, such Holder will, and will use its reasonable best
efforts to cause any Underwriter(s) in an Underwritten Offering to,
forthwith discontinue disposition of Transfer Restricted Securities
pursuant to any Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiv) hereof; or
(ii) such Holder is advised in writing by the Issuer 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 any Prospectus.
13
If so directed by the Issuer, each Holder will deliver to the Issuer (at
the Issuer's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice of suspension.
(d) Each Holder who intends to be named as a Selling Holder in
the Initial Shelf Registration Statement shall complete the
Questionnaire and deliver it to the Issuer within 20 Business Days
after receipt of a written request thereof (which request shall
include a copy at the Questionnaire). Prior to such time, each Holder
may complete the Questionnaire and deliver it to the Issuer prior to
such request and, as a result, shall be entitled to have its Transfer
Restricted Securities included in the Initial Shelf Registration
Statement filed with the Commission. Holders that do not complete the
Questionnaire and deliver it to the Issuer on a timely basis shall
not be eligible to be named as Selling Holders in the Prospectus or
preliminary Prospectus included in the Initial Shelf Registration
Statement and, therefore, shall not be permitted to sell any Transfer
Restricted Securities pursuant to the Shelf Registration Statements.
In addition, each Holder who intends to be named as a Selling Holder
in the Shelf Registration Statements shall promptly respond to the
Issuer by providing such other information as the Issuer may from
time to time reasonably request in writing regarding the Holder and
the proposed distribution by such Holder of its Transfer Restricted
Securities in connection with the Shelf Registration Statements or
Prospectuses or preliminary Prospectuses included therein.
(e) Upon the effectiveness of the Initial Shelf Registration
Statement, each Holder shall notify the Issuer at least three
Business Days prior to any intended distribution of Transfer
Restricted Securities pursuant to the Shelf Registration Statements
(a "SALE NOTICE"), which notice shall be effective for five Business
Days. Each Holder of Transfer Restricted Securities, by accepting the
same, agrees to hold any communication by the Issuer in response to a
Sale Notice in confidence.
5. REGISTRATION EXPENSES. All expenses incident to the Issuer's and the
Guarantors' performance of or compliance with this Agreement shall be borne by
the Issuer regardless of whether any Shelf Registration Statement becomes
effective, including, without limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the CODES) and the Issuer's expenses for messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel to the Issuer and the
Guarantors and, subject to Section 5(b) below, the Holders of
Transfer Restricted Securities;
14
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Issuer (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Issuer and the Guarantors shall bear their internal expenses
(including, without limitation, all salaries and expenses of their
respective officers and employees performing legal, accounting or other
duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Issuer and the
Guarantors.
(b) In connection with the Shelf Registration Statements required by
this Agreement, including any amendment or supplement thereto, and any
other documents delivered to any Holders, the Issuer shall reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
registered pursuant to any Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one counsel, which
shall be Xxxxxxx Xxxxxxx & Xxxxxxxx, or such other counsel as may be chosen
by the Holders for whose benefit the Shelf Registration Statement is being
prepared.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Issuer and the Guarantors shall indemnify and hold
harmless each Holder, such Holder's officers, directors and employees and each
person, if any, who controls such Holder within the meaning of the Securities
Act (each, an "INDEMNIFIED HOLDER"), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to resales
of the Transfer Restricted Securities), to which such Indemnified Holder may
become subject, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) any Shelf Registration Statement,
Prospectus or amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Issuer (or based upon written information
furnished by or on behalf of the Issuer expressly for use in such blue
sky application or other document or amendment on supplement) filed in
any jurisdiction specifically for the purpose of qualifying any or all
of the Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "BLUE SKY APPLICATION"); or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating or
15
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Issuer nor any Guarantor shall be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in any Shelf Registration Statement,
Prospectus or amendment or supplement thereto or any Blue Sky Application
in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of such Holder (or its related Indemnified
Holder) specifically for use therein. The foregoing indemnity agreement is
in addition to any liability which the Issuer and the Guarantors may
otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Issuer and the Guarantors, their respective officers,
directors and employees and each person, if any, who controls the Issuer or
the Guarantors within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Issuer, the Guarantors or any such officer,
director, employee or controlling person may become subject, insofar as any
such loss, claim, damage or liability or action arises out of, or is based
upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Shelf Registration Statement,
Prospectus or amendment or supplement thereto or any Blue Sky
Application; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading,
but in each case 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 furnished to the Issuer by or on
behalf of such Holder (or its related Indemnified Holder) specifically for
use therein, and shall reimburse the Issuer, the Guarantors and any such
officer, director, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by the Issuer, the
Guarantors or any such officer, employee or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Holder may otherwise have to the Issuer, the Guarantors or any of
their respective officers, directors, employees or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent
it has been materially prejudiced by such failure and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against
an indemnified party, and it shall
16
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that Holders shall have the right to
employ a single counsel to represent jointly the Holders and their
respective officers, directors, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Holders against the Issuer, the Guarantors
or any of their respective officers, directors, employees or controlling
persons under this Section 6, if the Holders seeking indemnification shall
have been advised by legal counsel that there may be one or more legal
defenses available to them and their respective officers, directors,
employees and controlling persons that are different from or additional to
those available to the Issuer, the Guarantors and their respective
officers, directors, employees and controlling persons, and the fees and
expenses of a single separate counsel shall be paid by the Issuer and the
Guarantors. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred
17
to in clause 6(d)(i) but also the relative fault of the Issuer on the
one hand and the Holders on the other in connection with the
statements or omissions or alleged statements or alleged omissions
that resulted in such loss, claim, damage or liability (or action in
respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Securities
purchased under the Purchase Agreement (before deducting expenses) received by
the Issuer, on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities on the other. The
relative fault of the parties shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuer
and the Guarantors on the one hand or the Holders on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Issuer, the Guarantors
and each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this Section
6, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Transfer Restricted Securities purchased by it were
resold exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. 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 Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
7. RULE 144A. In the event the Issuer is not subject to Section 13 or 15(d)
of the Exchange Act, the Issuer and each of the Guarantors hereby agree with
each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may participate
in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
18
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting
arrangements.
9. SELECTION OF UNDERWRITERS. The Holders of Transfer Restricted Securities
covered by the Shelf Registration Statements who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering if approved by the
Issuer. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by a Majority of Holders whose Transfer Restricted Securities are
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Issuer.
10. MISCELLANEOUS.
(a) REMEDIES. The Issuer and the Guarantors acknowledge and agree that
any failure by the Issuer or the Guarantors to comply with their
obligations under Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders 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
Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Issuer's and the Guarantors' obligations under
Section 2 hereof. The Issuer and the Guarantors further agree to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES. The Issuer
and the Guarantors shall not, directly or indirectly, take any action with
respect to the Transfer Restricted Securities as a class that would
adversely affect the ability of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(c) NO INCONSISTENT AGREEMENTS. The Issuer and the Guarantors 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 in this Agreement or otherwise conflicts with the provisions
hereof. In addition, the Issuer shall not grant to any of its security
holders (other than the Holders of Transfer Restricted Securities in such
capacity) the right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement other than the
Transfer Restricted Securities. The Issuer has not previously entered into
any agreement (which has not expired or been terminated) granting any
registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(d) AMENDMENTS AND WAIVERS. 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 the Issuer has obtained the
written consent of a Majority of Holders or such greater percentage of the
Holders as required by the Indenture.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified,
19
return receipt requested), telex, facsimile transmission, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Issuer or any of the Guarantors:
Apogent Technologies Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Fax: 000-000-0000
Telephone: 000-000-0000, ext. 700
With a copy to:
Xxxxxxx & Xxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
transmitted by facsimile; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties
and any Person that becomes a Guarantor on any Roll-Up Date, including
without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however,
that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such
Holder and (ii) nothing contained herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities
in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities,
in any manner, whether by operation of law or otherwise, such Transfer
Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities
such person shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement.
(g) 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
20
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) SECURITIES HELD BY THE ISSUER OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Issuer or its "affiliates" (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(k) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) 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 contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Issuer and the Guarantors with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
21
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
APOGENT TECHNOLOGIES INC.
By______________________________
Name:
Title:
APOGENT FINANCE COMPANY
APPLIED BIOTECH, INC.
BARNSTEAD THERMOLYNE
CORPORATION
BIOROBOTICS INC.
CHASE SCIENTIFIC GLASS, INC.
CONSOLIDATED TECHNOLOGIES, INC.
ERIE SCIENTIFIC COMPANY
ERIE SCIENTIFIC COMPANY OF PUERTO
RICO
ERIE UK HOLDING COMPANY
EVER READY THERMOMETER CO., INC.
GENEVAC INC.
G&P LABWARE HOLDINGS INC.
LAB-LINE INSTRUMENTS, INC.
LAB VISION CORPORATION
MATRIX TECHNOLOGIES CORPORATION
MICROGENICS CORPORATION
MOLECULAR BIOPRODUCTS, INC.
NALGE NUNC INTERNATIONAL
CORPORATION
NATIONAL SCIENTIFIC COMPANY
THE NAUGATUCK GLASS COMPANY
NERL DIAGNOSTICS CORPORATION
OWL SEPARATION SYSTEMS, INC.
REMEL INC.
XXXXXXX-XXXXX SCIENTIFIC COMPANY
XXXXXXX SCIENTIFIC CORPORATION
SAMCO SCIENTIFIC CORPORATION
SYBRON TRANSITION CORP.
VACUUM PROCESS TECHNOLOGY, INC.
By ____________________________
Name:
Title:
22
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
ABN AMRO ROTHSCHILD LLC
UBS WARBURG LLC
BY XXXXXX BROTHERS INC.
By______________________________
Authorized Representative
23
EXHIBIT A
APOGENT TECHNOLOGIES INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
BENEFICIAL OWNERS THAT DO NOT COMPLETE THIS QUESTIONNAIRE WITHIN 20
BUSINESS DAYS OF RECEIPT HEREOF AND DELIVER IT TO THE ISSUER AS PROVIDED BELOW
WILL NOT BE NAMED AS SELLING SECURITYHOLDERS IN THE PROSPECTUS AND THEREFOR WILL
NOT BE PERMITTED TO SELL ANY TRANSFER RESTRICTED SECURITIES PURSUANT TO THE
SHELF REGISTRATION STATEMENT.
The undersigned beneficial holder of 2.25% Senior Convertible Contingent
Debt Securities (the "CODES") due 2021 of Apogent Technologies Inc. (the
"ISSUER"), or common stock, par value $0.01 per share (the "SHARES" and together
with the CODES, the "TRANSFER RESTRICTED SECURITIES") of the Issuer understands
that the Issuer and the subsidiary guarantors (the "GUARANTORS") have filed, or
intend to file, with the Securities and Exchange Commission (the "COMMISSION")
one or more registration statements (collectively, the "SHELF REGISTRATION
STATEMENT"), for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the "SECURITIES ACT"), of the Transfer Restricted
Securities in accordance with the terms of the Registration Rights Agreement,
dated as of October 10, 2001 (the "REGISTRATION RIGHTS AGREEMENT") between the
Issuer, the Guarantors (as defined therein) and Xxxxxx Brothers Inc., Credit
Suisse First Boston Corporation, Banc of America Securities LLC, ABN AMRO
Rothschild LLC and UBS Warburg LLC (collectively, the "INITIAL PURCHASERS"). A
copy of the Registration Rights Agreement is available from the Issuer upon
request at the address set forth below. All capitalized terms not otherwise
defined herein have the meaning ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Transfer Restricted Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Transfer Restricted Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Transfer Restricted Securities generally will
be required to be named as a selling securityholder in the related Prospectus,
deliver a Prospectus to purchasers of Transfer Restricted Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions, as
described below).
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted 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 the related Prospectus.
NOTICE
The undersigned beneficial owner (the "SELLING SECURITYHOLDER") of Transfer
Restricted Securities hereby gives notice to the Issuer of its intention to sell
or otherwise dispose of Transfer Restricted Securities beneficially owned by it
and listed below in Item 3 (unless otherwise specified under Item 3) pursuant to
the Shelf Registration Statement. The
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undersigned, by signing and returning this Questionnaire, understands that it
will be bound by the terms and conditions of this Questionnaire and the
Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the Issuer, the Guarantors, the Issuer's and the
Guarantors' respective directors, the Issuer's officers who sign the Shelf
Registration Statement and each person, if any, who controls the Issuer or the
Guarantor within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against certain losses arising in
connection with statements concerning the undersigned made in the Shelf
Registration Statement or the related Prospectus in reliance upon the
information provided in this Questionnaire.
The undersigned hereby provides the following information to the Issuer and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. INFORMATION REGARDING SELLING SECURITYHOLDER
(a) Full legal name of Selling Securityholder: _______________________
(b) Full legal name of registered holder (if not the same as (a) above)
through which Transfer Restricted Securities listed in Item (3) below
are held: __________________________________________________________
(c) Full legal name of DTC participant (if applicable and if not the same
as (b) above) through which Transfer Restricted Securities listed in
Item (3) are held: __________________________________________________
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDERS
Telephone: ____________________________
Fax: _________________________________
Contact Person: ________________________
3. BENEFICIAL OWNERSHIP OF TRANSFER RESTRICTED SECURITIES
(a) Type of Transfer Restricted Securities beneficially owned, and
principal amount of Securities or number of shares of Common Stock, as
the case may be, beneficially owned: ____________________________
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned: ___________________
4. BENEFICIAL OWNERSHIP OF THE ISSUER'S SECURITIES OWNED BY THE SELLING
SECURITYHOLDER
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Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Issuer other than the
Transfer Restricted Securities listed above in Item (3) ("OTHER SECURITIES").
(a) Type and amount of Other Securities beneficially owned by the Selling
Securityholder: ____________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
_________________________________________________________
5. RELATIONSHIP WITH THE ISSUER
Except as set forth below, neither the undersigned 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
Issuer (or its predecessors or affiliates) during the past three years.
State any exceptions here: _________________________
6. PLAN OF DISTRIBUTION
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as follows (if at
all). Such Transfer Restricted Securities may be sold from time to time
directly by the undersigned or, alternatively, through underwriters, broker-
dealers or agents. If the Transfer Restricted Securities are sold through
underwriters or broker-dealers, the Selling Securityholder will be responsible
for underwriting discounts or commissions or agent's commissions. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed prices,
at 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 Transfer Restricted 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; or
(iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with broker-
dealers, which may in turn engage in short sales of the Transfer Restricted
Securities and deliver Transfer Restricted Securities to close out such short
positions, or loan or pledge Transfer Restricted Securities to broker-dealers
that in turn may sell such securities.
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State any exceptions here: _____________________________________________
________________________________________________________________________
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
agreement of the Issuer.
7. INSTRUCTIONS FOR DELIVERY OF QUESTIONNAIRE
Please return the completed and executed Questionnaire to Apogent
Technologies Inc. at:
Apogent Technologies Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Attention: General Counsel
ACKNOWLEDGMENTS
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Transfer Restricted Securities pursuant to the Shelf Registration
Statement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein. Pursuant to the Registration Rights Agreement, the Issuer
has agreed under certain circumstances to indemnify the Selling Securityholders
against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Issuer of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth above.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (7) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by the Issuer in connection with the preparation or amendment of the
Shelf Registration Statement and the related Prospectus.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Beneficial Owner
By: ________________________________
Name:
Title:
Date:
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EXHIBIT B
FORM OF ACKNOWLEDGEMENT TO ADD GUARANTORS
Reference is hereby made to the Resale Registration Rights Agreement (the
"Registration Rights Agreement"), dated October 10, 2001, among Apogent
Technologies Inc., a Wisconsin corporation (the "Issuer"), the several
subsidiary guarantors from time to time partiers thereto (collectively, the
"Guarantors") and Xxxxxx Brothers Inc., Credit Suisse First Boston Corporation,
Banc of America Securities LLC, ABN AMRO Rothschild LLC and UBS Warburg LLC
(collectively, the "Initial Purchasers"), as such Registration Rights Agreement
is amended, modified or supplemented from time to time in accordance with the
terms thereof. Unless otherwise defined herein, terms defined in the
Registration Rights Agreement shall have the meanings given to them in the
Registration Rights Agreement.
The undersigned hereby acknowledges and agrees with the Issuer, the
Guarantors and the Initial Purchasers (including any successors and assigns of
each of the parties and including without limitation and without the need for an
express assignment, subsequent holders of the securities referenced in the
Registration Rights Agreement) that it shall (i) become a party to the
Registration Rights Agreement effective as of the date hereof, (ii) have the
rights and obligations of a Guarantor thereunder, (iii) be bound by the terms
thereof insofar as such terms are applicable to it and (iv) perform in
accordance with the terms thereof all obligations that are required to be
performed by it as a Guarantor thereunder.
[New Guarantor]
By:____________________
Name:
Title:
Date:______________, 20__
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