Exhibit 10.13
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), amends and restates a Registration Rights Agreement dated March 6,
2000, and is entered into as of September 28, 2001 by and among RHEOMETRIC
SCIENTIFIC, INC., a Delaware corporation (the "Company"), ANDLINGER CAPITAL XXVI
LLC, a Delaware limited liability company ("Investor"), AXESS CORP., a Delaware
corporation ("Axess"), STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ("State
Farm"), the Trustee under the Revocable Trust of R. XXXXXXX XXXXXXXXX
("Xxxxxxxxx Trust") and XXXXXX X. XXXXX ("Xxxxx").
Background
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The Company, Axess and Investor have entered into a Securities Purchase
Agreement and a Stockholders' Agreement, each dated March 6, 2000. In connection
with the entry into those agreements, and as an inducement to the Stockholders
to enter into such agreements, the Company has granted certain registration
rights with respect to Registrable Securities (as hereinafter defined). Axess
has transferred a substantial portion of the Registrable Securities owned by it
to State Farm, the Xxxxxxxxx Trust and Xxxxx, and has acquired certain
additional shares of Registrable Securities from the Company, and the parties
desire to set forth their respective rights with respect to registration of the
Registrable Securities as hereinafter set forth.
Terms
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In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
I. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the Rules
promulgated under the Securities Exchange Act of 1934, as amended.
"Closing Date" means the Closing Date under the Securities Purchase
Agreement.
"Common Stock" means the common stock, no par value per share, of the
Company.
"Permitted Transferee" means a transferee of a Stockholder or of
Registrable Securities which meets the conditions set forth in Section IX-B of
this Agreement.
"Person" means a natural person, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Preferred Stock" means the Company's Convertible Redeemable Preferred
Stock, Series A, issued to Axess pursuant to the Securities Purchase Agreement.
"Registrable Securities" shall mean (i) any shares of Common Stock now
owned by a Stockholder, Axess, Xxxxx, the Xxxxxxxxx Trust or by a Permitted
Transferee any of the foregoing, (ii) any shares of Common Stock or other
securities issued or issuable to a Stockholder, Axess, Xxxxx, the Xxxxxxxxx
Trust or a Permitted Transferee pursuant to the conversion of the Preferred
Stock or the exercise of Warrants, (iii) the 65,762 shares of Common Stock
issued to Axess in consideration of the cancellation of certain indebtedness of
the Company to Axess under the Subordinated Promissory Note dated March 6, 2000,
and (iv) any Common Stock or other securities which may be issued or distributed
in respect of such Common Stock, Preferred Stock or Warrants by way of
conversion, stock dividend or stock split, or other distribution,
recapitalization, or reclassification (including without limitation by way of
merger, consolidation, sale of assets or similar event). As to any particular
Registrable Securities, once issued, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) such securities shall have been distributed to the public
pursuant to Rule 144 or 144A (or any successor provisions) under the Securities
Act or shall be eligible for such distribution, (iii) such securities shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any state securities or blue sky law
then in force, or (iv) such securities shall have ceased to be outstanding.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"State Farm Transfer Date" means July 2, 2001.
"Stockholder" means Investor and, with respect to the period from March
6, 2000 until the State Farm Transfer Date, Axess, and with respect to the
period from and after the State Farm Transfer Date, State Farm. For the
avoidance of doubt, State Farm is not a Stockholder with respect to the period
prior to the State Farm Transfer Date, and Axess is not a Stockholder with
respect to the period on or after the State Farm Transfer Date, and the
Xxxxxxxxx Trust and Xxxxx, although holders of Registrable Securities, are not
"Stockholders" for purposes of this Agreement.
"Stockholders' Agreement" means the Stockholders' Agreement dated the
date hereof among the Company, Investor, and Axess.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated the date hereof between the Company, Axess and Investor.
"underwritten registration or "underwritten offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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II. Demand Registrations
A. (i) Upon the written request of (i) Investor, at any time after the first
annual anniversary of the Closing Date and prior to the third anniversary of
Closing Date or (ii) Investor or State Farm, at any time after the third
anniversary of the Closing Date, requesting that the Company effect the
registration under the Securities Act of all or part of the particular
requesting Stockholder's (the "Requesting Stockholder's") Registrable Securities
and specifying the intended method of disposition thereof, the Company will, as
expeditiously as possible, use its best efforts to effect the registration under
the Securities Act of (i) the Registrable Securities which the Company has been
so requested to register by the Requesting Stockholder so as to permit the
disposition (in accordance with the intended method thereof as aforesaid) of the
Registrable Securities so to be registered; provided, however, that the Company
may delay the filing of the registration statement for up to a single 90-day
period if the Board determines that such filing should not be made due to a
valid need not to disclose confidential information or because it would
materially interfere with any material financing, acquisition, corporate
reorganization, or merger involving the Company. So long as the Company does not
breach any of its obligations in respect of the demand registration (other than
a breach which would not adversely affect the Requesting Stockholder's rights)
with respect to each holder, the Company shall only be required to comply with
two (2) requests by each of State Farm and Investor for demand registration. The
Company shall give written notice to each Stockholder other than the Requesting
Stockholder of its intention to file a registration statement pursuant to this
paragraph at least 30 days prior to the filing thereof, and if requested in
writing by such other Stockholders within 30 days after receipt of such notice,
the Company will include in such registration statement any shares of Common
Stock held by the other Stockholders and requested to be so included. The
immediately preceding sentence shall not apply to the Aviv Registration or the
March 31 Registration (as such terms are hereinafter defined). All of the
holders of Registrable Securities whose shares of Common Stock will be included
in a registration statement (whether a Requesting Stockholder or other
stockholder electing to participate) pursuant to any "demand" or "piggyback"
registration under this Agreement are referred to herein as the "Participating
Stockholders."
(ii) In addition to the registration(s) contemplated under paragraph II-A
(i) above and paragraph III-C below, on or prior to March 31, 2002, the Company
will file one or more registration statements on Form S-3 (or other available
form) covering the following Registrable Securities: 171,132 shares of Common
Stock of the Xxxxxxxxx Trust, 420,330 shares of Common Stock of Xxxxx, and
400,000 shares of Common Stock of State Farm, (the "March 31 Registration") and
use its best efforts to effect the registration under the Securities Act of the
March 31 Registration; provided, however, that the Company may delay the filing
of the registration statement for up to a single 90-day period if the Board
determines that such filing should not be made due to a valid need not to
disclose confidential information or because it would materially interfere with
any material financing, acquisition, corporate reorganization, or merger
involving the Company. Unless the context otherwise requires, such registration
shall be subject to the provisions applicable to demand registrations under this
Agreement, except that there shall be no requirement for the giving of any
"demand".
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B. A registration requested pursuant to Article II(A) will not be deemed to
have been effected unless it has become effective; provided, that if, within 135
days after it has become effective, the offering of Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction,
or other order or requirement of the SEC or other governmental agency or court
prior to the sale of all the Registrable Securities registered thereunder, such
registration will be deemed not to have been effected. Notwithstanding the
preceding sentence, if any such stop order is rescinded, the effective period
shall continue upon such rescission and be extended by the number of days by
which such stop order delayed the filing.
C. The Requesting Stockholder causing the registration statement shall have
the right to select an underwriter or underwriters of nationally recognized
standing satisfactory to the Company to administer the offering.
D. A registration statement filed pursuant to this Article II may, subject
to the following provisions, include (i) shares of Common Stock for sale by the
Company for its own account and (ii) shares of Common Stock held by persons who
by virtue of agreements with the Company in compliance with the provisions of
this Article II are entitled to include such shares in such registration,
including other holders of Registrable Securities (the "Other Stockholders"), in
each case for sale in accordance with the method of disposition specified by the
requesting holders. If such registration shall be underwritten, the Company and
Other Stockholders proposing to distribute their shares through such
underwriting shall enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters selected for such
underwriting on terms no less favorable to the Company and such Other
Stockholders than the terms afforded the holders of Registrable Securities. If
and to the extent that the managing underwriter determines that marketing
factors require a limitation on the number of shares to be included in such
registration, then the shares of Common Stock held by Other Stockholders (other
than Registrable Securities) and shares of Common Stock to be sold by the
Company for its own account shall be excluded from such registration to the
extent so required by such managing underwriter, and unless the holders of such
shares and the Company have otherwise agreed in writing, such exclusion shall be
applied first to the shares held by the Other Stockholders to the extent
required by the managing underwriter, then to the shares of Common Stock of the
Company to be included for its own account to the extent required by the
managing underwriter. If the managing underwriter determines that marketing
factors require a limitation of the number of Registrable Securities to be
registered under this Article II (including the Registrable Securities of a
Stockholder to be registered pursuant to the Piggyback Registration Rights of
Article III hereof), then Registrable Securities shall be excluded in such
manner that the securities to be sold shall be allocated pro rata among the
Participating Stockholders on the basis of the number of Registrable Securities
requested to be included in the registration or deemed to have been requested
for inclusion, in the case of a registration pursuant to Article II. A (ii). In
any event all securities to be sold other than Registrable Securities will be
excluded prior to any exclusion of Registrable Securities. If any holder of
Registrable Securities or Other Stockholder who has requested inclusion in such
registration as provided above, disapproves of the terms of the underwriting
(including without limitation, the number of shares owned by such Stockholder or
Other Stockholder to be excluded from such registration), such holder of
securities may elect to withdraw therefrom by written notice to the Company and
the managing underwriter, and if such Stockholder is the Requesting Holder, such
request shall not count as one of the Requesting Stockholder's demand
registrations hereunder. Any securities so
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withdrawn by a Stockholder or by an Other Stockholder shall also be withdrawn
from registration. Except for registration statements on Form X-0, X-0 or any
comparable form or successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Article II until
180 days after the effective date of such registration, or if earlier, the date
all shares registered under such registration have been sold.
III. Piggyback Registrations.
A. If the Company at any time after the date hereof proposes to register its
Common Stock under the Securities Act (other than a registration statement on
Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's employees or security holders), whether or not for sale for its
own account including, without limitation, as a result of the exercise of any
demand registration rights (other than demand registration rights held by or
through RSI(NJ)QRS 12-13, Inc. to the extent exercised within one year after
March 6, 2000, other than the Aviv Registration, for which provision is made in
Paragraph C of this Article II, and other than the March 31 Registration),
whether pursuant to Article II above or otherwise, pursuant to a registration
statement on which it is permissible to register Registrable Securities for sale
to the public under the Securities Act, it will at such time give written notice
to all holders of Registrable Securities (but in the case of any transferee of a
holder of Registrable Securities only to the extent it had received written
notice of such transfer noting it was a transfer of Registrable Securities) of
its intention to do so at least 30 days prior to the date of filing the proposed
registration statement and of such holder's rights hereunder. Upon the written
request of holders of Registrable Securities made within 25 days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Stockholder), the Company will use
its best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register. If a
registration requested involves an underwritten public offering, a Participating
Stockholder may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration. The Company may
terminate its efforts to register such securities, including the Registrable
Securities, at any time without liability to any Participating Stockholder.
B. If in the reasonable opinion of the Company, the amount of securities
requested to be included in such registration by all selling holders exceeds the
amount which can be sold in such offering, so as to be likely to have an adverse
effect on such offering as contemplated by the Company (including the price at
which the Company proposes to sell such securities) or would otherwise be
seriously detrimental to the interests of the Company or its stockholders or its
ability to obtain other financing, then the Company will include in such
registration (i) first, 100% of either (A) the Common Stock the Company proposes
to sell on a primary basis or (B) the Common Stock a Stockholder proposes to
sell upon exercise of "demand" registration rights pursuant to Article II, (ii)
second, to the extent of the amount of Registrable Securities requested to be
included in such registration which, in the opinion of the company, can be sold
without having the adverse effect referred to above, the amount of Registrable
Securities which the holders have requested to be included in such registration,
such amount to be allocated pro rata
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among holders exercising "piggyback" registration rights on the basis of the
relative number of shares of securities then held by each such holder (provided,
that any securities thereby allocated to any such holder that exceed such
holder's request will be reallocated among the remaining requesting holders in
like manner). The provisions of this paragraph shall not apply to the Aviv
Registration or the March 31 Registration.
C. The Company has previously provided each Stockholder and/or holder of
Registrable Securities notice of its proposed filing of a registration statement
with respect to certain shares of Common Stock issued in connection with its
acquisition of Aviv Instruments, Inc. (the "Aviv Registration"). Any prior
notice with respect to registration of Registrable Securities by such
Stockholder or holder of Registrable Securities is hereby withdrawn (except for
the notice by State Farm to convert its Series A Convertible Preferred Stock
into an aggregate of 800,000 shares of Common Stock), all the parties hereby
mutually release and discharge each other from any claims in connection
therewith. Each Stockholder and/or holder of Registrable Securities identified
on Schedule A hereto hereby gives notice of its request to register under
Article III hereof the number of shares of Rheometric Common Stock set forth
next to such holder's name, and the Company hereby waives the twenty five (25)
day period for receipt of such notice specified in Section III -A and hereby
undertakes to include such shares in the Aviv Registration. It is specifically
understood that such request on the part of State Farm shall not constitute a
demand for registration under Article II of this Agreement. Notwithstanding
anything in this Agreement to the contrary, the shares set forth on Schedule A
shall not be subject to cut-back or other reduction by the Company, an
underwriter or any other third party.
IV. Registration Expenses.
The Company shall be responsible for any and all expenses incident to
performance of or compliance with the registration rights set forth in this
Agreement, including, without limitation, (i) all SEC and stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses of complying with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications), (iii) all printing, messenger, and delivery
expenses, (iv) all fees and expenses incurred in connection with the listing of
the securities on any securities exchange or The Nasdaq Stock Market, (v) the
fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
reasonable fees and disbursements of one counsel selected by a majority in
interest of the Participating Stockholders to represent them in connection with
each such registration, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including liability
insurance if the Company so desires, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any.
V. Registration Procedures.
If and whenever the Company is required to use its best efforts to
effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will as expeditiously
as possible:
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A. prepare and, in any event within 60 days after the end of the period
within which all other requests for registration may be given to the Company,
file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
B. prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period not in
excess of 135 days and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement; provided, that before filing a registration statement or prospectus,
or any amendments or supplements thereto, the Company will furnish to one
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement to represent all holders of Registrable
Securities covered by such registration statement, copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel;
C. furnish to each seller of such Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
seller;
D. use its best efforts to register or qualify such Registrable Securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions where such registration or qualification is required
and which seller shall reasonably request, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign Company in any
jurisdiction where, but for the requirements of this clause (d), it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
E. use its best efforts to cause such Registrable Securities covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
F. immediately notify the Participating Stockholders at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (b), of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of a Participating Stockholder, prepare and furnish to such
Participating Stockholder a reasonable
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number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include 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 in the light of the circumstances then
existing. If the Board determines that such amended or supplemental prospectus
should not be prepared and filed due to a valid need not to disclose
confidential information or because either would materially interfere with any
material financing, acquisition, corporate reorganization, or merger involving
the Company, or in the good faith judgment of the Board of Directors of the
Company would be seriously detrimental to the Company, then the Company shall
have the right, upon giving the notice under this Article V-F, to postpone such
requirement to deliver an amended or supplemental prospectus for a single 60-day
period, provided, that, (i) the period during which the Company is obligated to
keep the registration statement effective under Article V-B shall be extended by
the duration of such postponement and (ii) the Company states in such notice
that it is postponing its delivery of such amended or supplemental prospectus
pursuant to this sentence;
G. otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as
reasonably practicable (but not more than 15 months) after the effective date of
the registration statement, an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
H. use its best efforts to list such Registrable Securities on any
securities exchange (including without limitation the Nasdaq National Market) on
which the Common Stock is then listed, if such Registrable Securities are not
already so listed and if such listing is then permitted under the rules of such
exchange, and to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
I. enter into such customary agreements (including an underwriting agreement
in customary form) and take such other actions customarily taken by registrants
as sellers of a majority of such Registrable Securities or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
J. use commercially reasonable efforts to obtain a "cold comfort" letter or
letters from the Company's independent public accountants in customary form and
covering matters of the type customarily covered by "cold comfort" letters as
the seller or sellers of a majority of such Registrable Securities shall
reasonably request; and
K. make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant, or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents, and properties of the Company, and cause all of
the Company's officers, directors, and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant, or
agent in connection with such registration statement.
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As a condition to the Company's obligation under this Article V to cause a
registration statement or an amendment to be filed, or Common Stock to be
included in the registration statement, each Participating Stockholder shall
provide such information and execute such documents (including any customary
agreement or undertaking relating to expenses, indemnification or other matters
to the extent consistent with the provisions of this Agreement) as may
reasonably be required by the Company in connection with such registration. In
addition, Participating Stockholders shall provide counsel for the Company with
such documents and information as may be reasonably requested by counsel for the
Company.
VI. Indemnification.
A. In the event of any registration of any securities of the Company under
the Securities Act, the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, all Participating Stockholders, each
of their affiliates, and their respective directors and officers, general and
limited partners or members (and the directors, officers, affiliates, and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages, or liabilities, joint or several, and expenses to which
such seller, any such director or officer, general or limited partner, or member
or affiliate or any such underwriter or controlling Person may become subject
under the Securities Act, common law or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions or proceedings in respect thereof,
whether commenced or threatened, and whether or not such Indemnified Party is a
party thereto) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary, final, or summary prospectus contained therein or any amendment
or supplement thereto, or (b) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action, or proceeding; provided, that the Company shall not be liable to any
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof), or expense
arises out of or is based upon (i) any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
amendment or supplement thereto or in any such preliminary, final, or summary
prospectus in reliance upon and in conformity with written information with
respect to a Participating Stockholder furnished to the Company by such
Participating Stockholder for use in the preparation thereof, or (ii) an untrue
statement or alleged untrue statement, omission or alleged omission in a
prospectus if such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to such prospectus
which amendment or supplement is delivered to such Participating Stockholder in
a timely manner and such Participating Stockholder thereafter fails to deliver
such prospectus as so amended or supplemented prior to or concurrently with the
sale of such Registrable Securities to the Person asserting such damages. The
indemnity agreements shall not apply to amounts paid in settlement of claims if
such settlement is effectuated without the consent of the Company (which shall
not be unreasonably withheld or delayed). Such indemnity shall remain
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in full force and effect regardless of any investigation made by or on behalf of
such seller or any Indemnified Party and shall survive the transfer of such
securities by such seller.
B. In the event of any registration of any securities of the Company under
the Securities Act, each prospective seller thereunder will, and it hereby does,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Article VI-A) the Company, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final, or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information with respect to such seller furnished to the Company by such seller
for use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing; provided, however, that the indemnity
agreement contained in this Article VI-B shall not apply to amounts paid in
settlement of any loss, claim, damage, liability, or action arising pursuant to
a registration if such settlement is effected without the consent of such seller
(which consent shall not be unreasonably withheld). Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any of the prospective sellers, or any of their respective
affiliates, directors, officers, or controlling Persons and shall survive the
transfer of such securities by such seller. Notwithstanding the foregoing, the
obligations of each prospective Seller to indemnify shall be limited to an
amount equal to the proceeds to each such Seller of securities sold as
contemplated herein.
C. Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Article VI, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, that the failure of the indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under this Article VI, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party will
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. Indemnification similar to that specified herein (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
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VII. Hold-Back Agreements
In connection with each underwritten public offering, each Stockholder,
holder of Registrable Securities and the Company shall agree not to effect any
public sale or distribution, including any sale pursuant to Rule 144 under the
Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering),
within seven days before or 90 days (or such lesser period as the managing
underwriters may permit) after the effective date of such registration; provided
that a Stockholder shall be so limited only if notice of the effective date of
such registration statement has been given to such Stockholder. The Company
hereby also agrees to use its best efforts to cause as the managing underwriters
may require each other holder ("Non-Public Holders") of any equity security, or
of any security convertible into or exchangeable or exercisable for any equity
security, of the Company purchased from the Company (at any time other than in a
public offering) to so agree. The foregoing provisions shall not apply to (x)
any holder of Registrable Securities if such holder is prevented by applicable
statute or regulation from entering into any such agreement; provided, however,
that any such holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of
Registrable Securities (except as part of such underwritten registration) during
such period unless it has provided 45 days prior written notice of such sale or
distribution to the managing underwriter or underwriter, and (y) to the
Stockholders and holders of Registrable Securities participating in the March 31
Registration pursuant to Section II-A(ii) of this Agreement .
VIII. Rule 144 Reporting
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of the Restricted
Securities to the public without registration, the Company agrees to:
1. make and keep public information available as those terms are
understood and defined and interpreted in and under Rule 144 under the
Securities Act, as tall times from and after ninety (90) days following the
effective date of the first registration under the Securities Act filed by the
Company for an offering of its securities to anyone other than its employees;
2. use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act at any time after it has become subject to such
reporting requirements; and
3. so long as the holder of Registrable Securities owns any Restricted
Securities, furnish to such holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of Rule 144, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as such holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing the
purchaser to sell any such securities without registration.
11
IX. Miscellaneous
A. Amendment and Modification. This Agreement may be amended only in a
writing executed by all the parties hereto. No course of dealing between or
among any Persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
B. Successors and Assigns; Entire Agreement. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns and executors,
administrators and heirs. The rights granted to each Stockholder under this
Section II (A) (i) of this Agreement may be assigned by such Stockholder to any
transferee of Registrable Securities by such Stockholder, provided (i) such
transferee is not a competitor of the Company (as determined in good faith by
the Board of Directors), (ii) such transfer is effected in accordance with
applicable securities laws and the terms of any applicable agreements, including
without limitation, the Stockholders Agreement, (iii) in the case of any
transfer by a Stockholder, such transferee acquires in such transfer an amount
of Registrable Securities equal to more than 50% of the Registrable Securities
(including as if outstanding the number of shares of Common Stock underlying any
securities converted into Registrable Securities) held by such Stockholder on
the date of transfer (as adjusted for stock splits, stock dividends,
reclassifications and the like), (iv) at least ten days prior written notice of
such transfer is given to the Company, and (v) the transferee agrees in writing
to be bound by the provisions of this Agreement. The rights granted to each
holder of Registrable Securities under Sections II (A) (ii) and III (A) of this
Agreement who is not also a Stockholder may be assigned by each such holder
provided that the assignee is a "Permitted Transferee" under the Stockholders
Agreement, the terms and conditions of the Stockholders Agreement are complied
with in connection with such transfer, and such assignee agrees in writing to be
bound by the terms of this Agreement. This Agreement, together with the
Securities Purchase Agreement, Stockholders' Agreement and the ancillary
agreements and instruments entered into in connection herewith and therewith,
sets forth the entire agreement and understandings among the parties as to the
subject matter hereof and thereof and merges and supersedes all prior
discussions and understandings of any and every nature among them.
C. Separability. In the event that any provision of this Agreement or the
application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
D. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person, by cable, telegram, facsimile transmission with
confirmation of receipt, or telex, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
12
If to the Company, to:
Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Dechert
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Fax: 000-000-0000
If to Investor, to:
Andlinger Capital XXVI LLC
c/o Andlinger & Company, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
If to Axess, to:
Axess Corporation
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn. Xxxxxxx Xxxxxx
Fax: (000) 000-0000
If to State Farm, to:
State Farm Insurance Companies
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxx
If to Xxxxxxxxx Trust, to:
R. Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
13
If to Xxxxxx Xxxxx, to:
Xxxxxx X. Xxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
and a copy to:
Proskauer Rose LLP
0000 Xxxxxx Xxxx
Xxxxx 000X
Xxxx Xxxxx, XX 00000
ATTN: Xxxxxx X. "Rocky" Xxxxxxxx, II
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
E. Governing Law. The validity, performance, construction and effect of this
Agreement shall be governed by and construed in accordance with the internal law
of New York, without giving effect to principles of conflicts of laws.
F. Headings. The headings in this Agreement are for convenience of reference
only and shall not constitute a part of this Agreement, nor shall they affect
their meaning, construction or effect.
G. Counterparts. This Agreement may be executed in two or more counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, and all of which taken together
shall constitute one and the same instrument.
H. Further Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
I. Effectiveness; Termination. This Agreement shall be initially effective
upon the consummation of the transactions on the Closing Date contemplated by
the Securities Purchase Agreement and as amended and restated, shall be
effective upon execution by each party hereto, and, unless sooner terminated,
shall terminate ten years after the closing date, provided that the
indemnification rights and obligations set forth in Article VI hereof shall
survive the termination of this Agreement. Each Stockholder and holder of
Registrable Securities confirms that upon execution of this Amended and Restated
Registration Rights Agreement by each party hereto, its rights with respect to
registration of Registrable Securities shall in all respect be governed by this
Agreement, as amended hereby.
J. Remedies. In the event of a breach or a threatened breach by any party to
this Agreement of its obligations under this Agreement, any party injured or to
be injured by such breach, in addition to being entitled to exercise all rights
granted by law, including recovery of
14
damages, will be entitled to specific performance of its rights under this
Agreement, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
K. Party No Longer Owning Registrable Securities. If a party hereto ceases
to own any Registrable Securities, such party will no longer be deemed to be a
Stockholder or a holder of Registrable Securities for purposes of this
Agreement; provided that the indemnification rights and obligations set forth in
Article VI hereof shall survive any such cessation of ownership.
L. Pronouns. Whenever the context may require, any pronouns used herein
shall be deemed also to include the corresponding neuter, masculine or feminine
forms.
15
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President - Finance
ANDLINGER CAPITAL XXVI LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
AXESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President - Common Stocks
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
REVOCABLE TRUST OF R. XXXXXXX
XXXXXXXXX
By: /s/ R. Xxxxxxx Xxxxxxxxx
-------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Trustee
/s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
[signature page to Amended and Restated Registration Rights Agreement]
Schedule A
----------------------------------------------- --------------------------------
Holder Shares Requested to be Included
----------------------------------------------- --------------------------------
State Farm Mutual Automobile Insurance Company 400,000
----------------------------------------------- --------------------------------
Xxxxxx X. Xxxxx 115,000
----------------------------------------------- --------------------------------
Axess Corporation 65,762
----------------------------------------------- --------------------------------
Revocable Trust of R. Xxxxxxx Xxxxxxxxx 43,000
----------------------------------------------- --------------------------------
