EXHIBIT 4.3
EXHIBIT B
to Securities Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of May 14, 2001,
by and among GENUS, INC., a corporation organized under the laws of the State of
California (the "Company"), and the undersigned (the "Initial Investors").
WHEREAS:
A. The Company and the Initial Investors have entered into a Securities
Purchase Agreement dated the date hereof (the "Securities Purchase Agreement;"
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Securities Purchase Agreement). In
connection with the Securities Purchase Agreement, the Company has agreed, upon
the terms and subject to the conditions contained therein, to issue and sell to
the Initial Investors (i) shares of the Company's common stock, no par value
(the "Common Stock"), and (ii) warrants to purchase Common Stock (the
"Warrants"). The shares of Common Stock issued on the Closing Date under the
Securities Purchase Agreement are referred to herein as the "Shares" and the
shares of Common Stock issuable upon exercise of or otherwise pursuant to the
Warrants are referred to herein as the "Warrant Shares."
B. To induce the Initial Investors to execute and deliver the
Securities Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Initial
Investors, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(i) "Investors" means the Initial Investors and any transferees or
assignees who agree to become bound by the provisions of this Agreement in
accordance with Section 9 hereof; provided, however, that the term "Investors"
shall not include any of the Initial Investors and any transferees or assignees
who agree to become bound by the provisions of this Agreement in accordance with
Section 9 hereof that cease to own or hold any of the Registrable Securities.
(ii) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(iii) "Registrable Securities" means (i) the Shares, (ii) the Warrant
Shares, (iii) any shares of Common Stock issued or issuable as a result of the
operation of the anti-dilution provisions of the Warrants and (iv) any shares of
capital stock issued or issuable, from time to time (with any adjustments), as a
distribution on or in exchange for or otherwise with respect to any of the
foregoing.
(iv) "Registration Statement" means one or more registration statements
of the Company under the Securities Act registering all of the Registrable
Securities, including the Initial Registration Statement, any Uncovered Shares
Amendments and Uncovered Shares Registration Statements (each, as defined
below).
2. REGISTRATION.
a. Mandatory Registration. The Company shall file with the United
States Securities and Exchange Commission ("SEC"), on the date which is on or
before thirty-five (35) calendar days after the Closing Date (the "Filing
Deadline") a Registration Statement on Form S-3 (or, if Form S-3 is not then
available, on such form of Registration Statement as is then available to effect
a registration of all of the Registrable Securities, subject to the consent of
the Initial Investors as to the use of such form (as determined pursuant to
Section 11(j) hereof)) covering the resale of at least 3,699,042 shares of
Common Stock, which Registration Statement, to the extent allowable under the
Securities Act and the rules promulgated thereunder shall state that such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon exercise of the Warrants to
prevent dilution resulting from stock splits, stock dividends or similar
transactions (the "Initial Registration Statement"). The Registrable Securities
included in the Initial Registration Statement shall be registered on behalf of
the Investors as set forth in Section 11(k) hereof. The Initial Registration
Statement (and each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided to (and subject to the
review by) the Initial Investors and their counsel at least five (5) Business
Days prior to its filing or other submission. If for any reason (including, but
not limited to, a determination by the staff of the SEC that all or any portion
of the Warrant Shares or any other Registrable Securities cannot be included in
the Initial Registration Statement (an "SEC Determination")) the Initial
Registration Statement declared effective by the SEC does not include all of the
Registrable Securities (any such shares that are not included being the
"Uncovered Shares"), the Company shall prepare and file with the SEC, as soon as
practicable, but in any event prior to the fifth (5th) Business Day after
becoming aware of the existence of any Uncovered Shares (such date referred to
herein as the "Uncovered Share Filing Deadline"), either (a) an amendment (the
"Uncovered Shares Amendment") to the Initial Registration Statement effecting a
registration of the Uncovered Shares or (b) a registration statement which
registers the Uncovered Shares (the "Uncovered Shares Registration Statement").
The Uncovered Shares Amendment or the Uncovered Shares Registration Statement
(and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided to the Initial Investors and their
counsel for review and comment at least three (3) Business Days prior to its
filing or other submission. The Company shall use its best efforts to cause each
of the Initial Registration Statement and the Uncovered Shares Amendment or the
Uncovered Shares Registration Statement to become effective as soon as
practicable after the filing thereof.
b. [Reserved]
c. Payments by the Company. The Company shall use its best efforts to
cause each Registration Statement required to be filed pursuant to Section 2(a)
hereof to become effective as soon as practicable, but, as to the Initial
Registration Statement filed pursuant to Section 2(a), in no event later than
the ninety-fifth (95th) calendar day after the Closing Date (the "Registration
Deadline"), and as to any Uncovered Shares Amendment or Uncovered Shares
Registration Statement, in no event later than the forty-fifth (45th) day after
the Uncovered Share Filing Deadline (the "Uncovered Share Registration
Deadline"). If (i) the Registration Statement(s) covering the Registrable
Securities required to be filed by the Company pursuant to Section 2(a) hereof
is not filed with the SEC by the Filing Deadline or the Uncovered Share Filing
Deadline, as applicable, or declared effective by the SEC on or before the
Registration Deadline or the Uncovered Share Registration Deadline, as
applicable, or if, after a Registration Statement has been declared effective by
the SEC, sales of all the Registrable Securities (including any Registrable
Securities required to be registered pursuant to Section 3(b) hereof) required
to be included therein (except, in the case of the Initial Registration
Statement, for Uncovered Shares which are the subject of an SEC Determination)
cannot be made pursuant to the Registration Statement (by reason of a stop
order, the Company's failure to update a Registration Statement, any reason
resulting in Uncovered Shares or any other reason outside the control of the
Investors) or (ii) the Common Stock is not listed or included for quotation on
the Nasdaq National Market or Small Cap Market (the "Nasdaq Markets"), the New
York Stock Exchange (the "NYSE") or the American Stock Exchange (the "AMEX") at
any time after the Registration Deadline, then the Company will make payments to
the Investors in such amounts and at such times as shall be determined pursuant
to this Section 2(c) as partial relief for the damages to the Investors by
reason of any such delay in or reduction of their ability to sell the
Registrable Securities (which remedy shall not be exclusive of any other
remedies available at law or in equity).
The Company shall pay to each Investor an amount equal to (i) the
Investment Amount (as defined in the Securities Purchase Agreement) paid by such
Investor (or if such Investor is not an Initial Investor, the Investment Amount
paid by such Investor's transferor or assignor of such Shares and Warrants) for
the Shares and Warrants purchased by such Investor (or such Investor's
transferor or assignor) pursuant to the Securities Purchase Agreement (the
"Aggregate Purchase Price"), multiplied by (ii) one percent (1%) (with respect
to the period commencing on the Filing Deadline, the Uncovered Filing Deadline,
the Registration Deadline or the Uncovered Share Registration Deadline, as
applicable multiplied by (iii) the sum of (x) the quotient calculated by
dividing (A) the number of days after the Filing Deadline or Uncovered Share
Filing Deadline, as applicable, and prior to the date the Registration Statement
or Uncovered Share Amendment or Uncovered Share Registration Statement, as
applicable, in each case as required to be filed pursuant to Section 2(a), is
filed with the SEC by (B) thirty, plus (y) the quotient calculated by dividing
(A) the number of days after the Registration Deadline or Uncovered Share
Registration Deadline, as applicable, and prior to the date the Registration
Statement or Uncovered Share Amendment or Uncovered Share Registration
Statement, as applicable, in each case as filed pursuant to Section 2(a), is
declared effective by the SEC by (B) thirty, plus (z) the quotient calculated by
dividing (A) the sum of the number of additional days that (I) sales of any
Registrable Securities required to be included in a Registration Statement
(except, in the case of the Initial Registration Statement, for any Uncovered
Shares which are the subject of an SEC Determination) cannot be made pursuant to
a Registration Statement after such Registration Statement has been declared
effective, or (II) the Common Stock is not listed or included for quotation on
the Nasdaq Markets, the NYSE or AMEX by (B) thirty. For example, if the Initial
Registration Statement becomes effective thirty (30) days after the Registration
Deadline, the Company would pay $10,000 for each $1,000,000 of Aggregate
Purchase Price; and thereafter, for each additional period of thirty (30) days
that sales cannot be made pursuant to the Initial Registration Statement (except
as to Uncovered Shares which are subject to an SEC Determination), the Company
would pay $10,000 for each $1,000,000 of Aggregate Purchase Price. Such amounts
shall be paid in cash within five (5) days after the end of each period that
gives rise to such obligation, provided that, if any such period extends for
more than thirty (30) days, interim payments shall be made for each such thirty
(30) day period. If such payment is not made within such five (5) day period
the Investor thereafter shall be entitled to interest on the unpaid amount at a
rate equal to two percent (2%) per month until such amount is paid in full to
the Investor. If the Company is unable to pay all amounts due and payable with
respect to the penalties, the Company will pay the Investors such amounts pro
rata based upon the total amounts payable to each Investor as a percentage of
the total amounts payable to all Investors.
d. Piggy Back Registrations.
(i) If at any time prior to the expiration of the Registration Period (as
hereinafter defined) the Company shall file with the SEC a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities (other than on Form S-4
or Form S-8 or their then equivalents relating to equity securities to be issued
solely in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans), the Company shall send to each Investor who is entitled to registration
rights under this Section 2(d) written notice of such determination and, if
within twenty (20) days after the date of such notice, such Investor shall so
request in writing, the Company shall include in such registration statement all
or any part of the Registrable Securities such Investor requests to be
registered, provided, however, that the number of Registrable Shares proposed to
be sold by such securities is equal to at least fifty percent (50%) of the total
number of Registrable Securities then held by such participating Investor, (iii)
such Investor agrees to sell those of its Registrable Securities to be included
in such registration in the same manner and on the same terms and conditions as
the other shares of Common Stock which the Company proposes to register, and
(iv) if the registration is to include shares of Common Stock to be sold for the
account of the Company or any party exercising registration rights pursuant to
any other agreement with the Company, the proposed managing underwriter does not
advise the Company that in its opinion the inclusion of such Investor's
Registrable Securities (without any reduction in the number of shares to be sold
for the account of the Company or such party exercising registration rights) is
likely to affect materially and adversely the success of the offering or the
price that would be received for any shares of Common Stock offered, in which
case the rights of such Investor shall be as provided in Section 2(d)(ii)
hereof.
(ii) If a registration pursuant to Section 2(d)(i) is done in connection
with any underwritten public offering for the account of the Company the
managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in the registration statement
because, in such underwriter(s)' judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution, then the Company
shall be obligated to include in such registration statement only such limited
portion, if any of the Registrable Securities with respect to which such
Investor has requested inclusion hereunder as the underwriter shall permit. Any
exclusion of Registrable Securities shall be made pro rata among the Investors
seeking to include Registrable Securities, in proportion to the number of
Registrable Securities sought to be included by such Investors; provided,
however, that the Company shall not exclude any Registrable Securities unless
the Company has first excluded all outstanding securities, the holders of which
are not entitled to inclusion of such securities in such registration statement
or are not entitled to pro rata inclusion with the Registrable Securities; and
provided further, however, that, after giving effect to the immediately
preceding proviso, any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the registration statement other than holders of securities
entitled to inclusion of their securities in such registration statement by
reason of demand registration rights (except to the extent any existing
agreements otherwise provide). No right to registration of Registrable
Securities under this Section 2(d) shall be construed to limit any registration
required under Section 2(a) hereof. If an offering in connection with which an
Investor is entitled to registration under this Section 2(d) is an underwritten
offering, then each Investor whose Registrable Securities are included in such
registration statement shall, unless otherwise agreed by the Company, offer and
sell such Registrable Securities in an underwritten offering using the same
underwriter or underwriters and, subject to the provisions of this Agreement, on
the same terms and conditions as other shares of Common Stock included in such
underwritten offering.
e. Eligibility for Form S-3. The Company represents and warrants that
it is eligible to register the resale of Registrable Securities on a
registration statement on Form S-3 under the Securities Act, and that there
exist no facts or circumstances (including without limitation any required
approvals or waivers or any circumstances that may delay or prevent the
obtaining of accountant's consents) that would prohibit or delay the preparation
and filing of a registration statement on Form S-3 with respect to the
Registrable Securities. The Company shall file all reports required to be filed
by the Company with the SEC in a timely manner so as to maintain or, if
applicable, regain its eligibility for the use of Form S-3.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
a. The Company shall prepare and file with the SEC, on or before the
Filing Deadline or the Uncovered Share Filing Deadline, as applicable, the
applicable Registration Statement required by Section 2(a) and shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable after such filing (but in no event later than the Registration
Deadline or the Uncovered Share Registration Deadline, as applicable). The
Company shall keep such Registration Statement effective pursuant to Rule 415 at
all times until the earlier of (i) five (5) years following the date hereof or
(ii) the date that all Registrable Securities have been sold pursuant to an
effective registration statement or Rule 144 under the Securities Act (the
"Registration Period"). In the event that the sale of Registrable Securities by
one or more Investors is determined by the SEC to constitute a primary offering,
upon the written request from time to time of any such Investor, the Company
shall as promptly as practicable: cause a Registration Statement to be amended
and/or one or more additional Registration Statements (which may be requested on
a sequential basis) to be filed (as specified by the applicable Investors) and
to be declared effective; and take all other actions reasonably requested by
such Investors to effectuate the offering of Registrable Securities. If the
Initial Registration Statement is not filed on Form S-3, the Company shall, as
soon as it is eligible to do so, file a post-effective amendment on Form S-3 to
the Initial Registration Statement to the extent permitted by the SEC or, if not
so permitted, file a new Registration Statement on Form S-3 to permit sales of
the Registrable Securities pursuant to Rule 429 under the Securities Act; and
the Company shall use its best efforts to cause such post-effective amendment or
Registration Statement to become effective as soon as possible. Each
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein and all documents incorporated by reference
therein) filed pursuant to this Agreement (i) shall comply in all material
respects with the requirements of the Securities Act and the rules and
regulations of the SEC promulgated thereunder and (ii) shall not contain any
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.
The financial statements of the Company included in the Registration Statement
or incorporated by reference therein will comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC applicable with respect thereto. Such financial
statements shall be prepared in accordance with U.S. generally accepted
accounting principles, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may not include footnotes or may be condensed or summary statements) and shall
fairly present in all material respects the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to immaterial year-end
adjustments).
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective at all times
during the Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement.
c. The Company shall furnish to each Investor whose Registrable
Securities are included in the Registration Statement and its legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto.
d. The Company shall use its best efforts to (i) register and qualify
the Registrable Securities covered by the Registration Statement under such
other securities or "blue sky" laws of such jurisdictions in the United States
as each Investor who holds Registrable Securities being offered reasonably
requests, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (a) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (b) subject itself to general taxation in any such jurisdiction,
(c) file a general consent to service of process in any such jurisdiction, (d)
provide any undertakings that cause the Company undue expense or burden, or (e)
make any change in its certificate of incorporation or by-laws, which in each
case the Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders.
e. In the event the Investors who hold a majority in interest of the
Registrable Securities being offered in an offering select underwriters for the
offering, the Company shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriters of such offering.
f. As promptly as practicable after becoming aware of such event, the
Company shall notify each Investor in writing of the happening of any event, of
which the Company has knowledge, as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and use its best
efforts promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission and deliver such number
of copies of such supplement or amendment to each Investor as such Investor may
reasonably request.
g. The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest practicable date (including in each case by amending or supplementing
such Registration Statement) and to notify each Investor who holds Registrable
Securities being sold (or, in the event of an underwritten offering, the
managing underwriters) of the issuance of such order and the resolution thereof
(and if such Registration Statement is supplemented or amended, deliver such
number of copies of such supplement or amendment to each Investor as such
Investor may reasonably request).
h. The Company shall permit a single firm of counsel designated by the
Initial Investors to review the Registration Statement and all amendments and
supplements thereto a reasonable period of time prior to their filing with the
SEC.
i. At the request of the Initial Investors whose Registrable Securities
are included in a Registration Statement, the Company shall furnish, on the date
of effectiveness of the Registration Statement (i) an opinion, dated as of such
date, from counsel representing the Company addressed to the Investors and in
form, scope and substance as is customarily given in an underwritten public
offering, including that the Registration Statement and related prospectus
comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations thereunder, and (ii) a
letter, dated as of such date, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the Initial Investors and the underwriters, if any.
j. The Company shall make available for inspection by (i) any Investor
whose Registrable Securities are included in a Registration Statement, (ii) any
underwriter participating in any disposition pursuant to a Registration
Statement, (iii) one firm of attorneys and one firm of accountants or other
agents retained by the Investors, and (iv) one firm of attorneys retained by all
such underwriters (collectively, the "Inspectors") all pertinent financial and
other records, and pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably deemed necessary by each
Inspector to enable each Inspector to exercise its due diligence responsibility,
and cause the Company's officers, directors and employees to supply all
information which any Inspector may reasonably request for purposes of such due
diligence.
k. The Company shall hold in confidence and not make any disclosure of
information concerning an Investor provided to the Company unless (i) disclosure
of such information is necessary to comply with federal or state securities
laws, (ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other order from a court
or governmental body of competent jurisdiction, (iv) such information has been
made generally available to the public other than by disclosure in violation of
this or any other agreement, or (v) such Investor consents to the form and
content of any such disclosure. The Company agrees that it shall, upon learning
that disclosure of such information concerning an Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt notice to such Investor prior to making such disclosure, and allow
the Investor, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts to promptly either (i) secure
the designation and quotation, of all the Registrable Securities covered by the
Registration Statement on The Nasdaq Stock Market, or (ii) cause all the
Registrable Securities covered by the Registration Statement to be listed on the
NYSE or the AMEX or another national securities exchange and on each additional
national securities exchange on which securities of the same class or series
issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange.
m. The Company shall provide a transfer agent and registrar, which may
be a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
n. The Company shall cooperate with the Investors who hold Registrable
Securities being offered and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates to be in
such denominations or amounts, as the case may be, as the managing underwriter
or underwriters, if any, or the Investors may reasonably request and registered
in such names as the managing underwriter or underwriters, if any, or the
Investors may request, and, within three (3) Business Days after a Registration
Statement which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver, and shall cause legal counsel selected by the Company
to deliver, to the transfer agent for the Registrable Securities (with copies to
the Investors whose Registrable Securities are included in such Registration
Statement) an opinion of such counsel in a form customary for such transactions.
o. The Company shall comply with applicable federal and state
securities laws and regulations related to a Registration Statement and offering
and sale of securities.
p. The Company shall take all such other actions as any Investor or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
q. From and after the date of this Agreement, the Company shall not,
and shall not agree to, allow the holders of any securities of the Company
(except (i) to the extent existing agreements may otherwise provide or (ii) in
the case of the Common Stock underlying the warrants to be issued to WFVK as
placement agent of the financing contemplated by the Securities Purchase
Agreement) to include any of their securities in any Registration Statement
under Section 2(a) hereof or any amendment or supplement thereto under Section
3(b) hereof without the consent of the holders of a majority in interest of the
Registrable Securities.
4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
a. It shall be a condition precedent to the obligations of the Company
to complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Investor that such Investor shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least five (5) Business
Days prior to the first anticipated filing date of the Registration Statement,
the Company shall notify each Investor of any information the Company requires
from each such Investor.
b. Each Investor, by such Investor's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from the Registration Statement.
c. In the event Investors holding a majority in interest of the
Registrable Securities being offered determine to engage the services of an
underwriter, each Investor agrees to enter into and perform such Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriter(s) of such offering and the Company and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of the Registrable Securities, unless such Investor has notified
the Company in writing of such Investor's election not to participate in such
underwritten distribution.
d. No Investor may participate in any underwritten distribution
hereunder unless such Investor (i) agrees to sell such Investor's Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Section 5 below. Notwithstanding anything in this Section
4(d) to the contrary, this Section 4(d) is not intended to limit an Investor's
rights under Section 2(a) or 3(b) hereof.
5. EXPENSES OF REGISTRATION.
All reasonable expenses incurred by the Company or the Investors in
connection with registrations, filings or qualifications pursuant to Sections 2
and 3 above (excluding brokers' fees, underwriting discounts and commissions,
and similar selling expenses), including, without limitation, all registration,
listing and qualifications fees, printers and accounting fees and the fees and
disbursements of counsel for the Company, and the fees and disbursements of
counsel selected by the Investors, shall be borne by the Company. In addition,
the Company shall pay all of the Investors' costs and expenses (including
reasonable legal fees) incurred in connection with the enforcement of the rights
of the Investors hereunder.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, the Company will indemnify, hold
harmless and defend (i) each Investor who holds such Registrable Securities, and
(ii) the directors, officers, partners, members, employees and agents of such
Investor and each person who controls any Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), if any (each, an "Indemnified Person"), against
any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities (the matters in the foregoing clauses (i)
through (iii) being, collectively, "Violations"). Subject to the restrictions
set forth in Section 6(c) with respect to the number of legal counsel, the
Company shall reimburse the Investors and each other Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim arising out of or
based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnified Person
expressly for use in the Registration Statement or any such amendment thereof or
supplement thereto; (ii) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld; and (iii) with
respect to any prospectus, shall not inure to the benefit of any Indemnified
Person if the untrue statement or omission of material fact contained in such
prospectus was corrected on a timely basis in the prospectus, as then amended or
supplemented, if such corrected prospectus was timely made available by the
Company pursuant to Section 3(c) hereof, and the Indemnified Person was promptly
advised in writing not to use the incorrect prospectus prior to the use giving
rise to a Violation and such Indemnified Person, notwithstanding such advice,
used it. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section
9.
b. In connection with any Registration Statement in which an Investor
is participating, each such Investor agrees severally and not jointly to
indemnify, hold harmless and defend, to the same extent and in the same manner
set forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, its employees, agents and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and any other stockholder
selling securities pursuant to the Registration Statement or any of its
directors or officers or any person who controls such stockholder or underwriter
within the meaning of the Securities Act or the Exchange Act (collectively and
together with an Indemnified Person, an "Indemnified Party"), against any Claim
to which any of them may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
such Registration Statement; and subject to Section 6(c) such Investor will
reimburse any legal or other expenses (promptly as such expenses are incurred
and are due and payable) reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Investor; provided, further, however, that the Investor shall be
liable under this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the net proceeds actually received by such
Investor as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact by the
Investor contained in the preliminary prospectus was corrected on a timely basis
in the prospectus, as then amended or supplemented, and the Indemnified Party
failed to utilize such corrected prospectus.
c. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that such indemnifying party shall not be
entitled to assume such defense and an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the reasonable fees and
expenses to be paid by the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person or Indemnified Party and the indemnifying party would
be inappropriate due to actual or potential conflicts of interest between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding or the actual or potential defendants in, or targets
of, any such action include both the Indemnified Person or the Indemnified Party
and the indemnifying party and any such Indemnified Person or Indemnified Party
reasonably determines that there may be legal defenses available to such
Indemnified Person or Indemnified Party which are in conflict with those
available to such indemnifying party. The indemnifying party shall pay for only
one separate legal counsel for the Indemnified Persons or the Indemnified
Parties, as applicable, and such legal counsel shall be selected by Investors
holding a majority-in-interest of the Registrable Securities included in the
Registration Statement to which the Claim relates (with the approval of the
Initial Investors if any of them holds Registrable Securities included in such
Registration Statement), if the Investors are entitled to indemnification
hereunder, or by the Company, if the Company is entitled to indemnification
hereunder, as applicable. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
(d) Notwithstanding anything to the contrary herein, the
indemnifying party shall not be entitled to settle any claim, suit or proceeding
unless in connection with such settlement the indemnified party receives an
unconditional release with respect to the subject matter of such claim, suit or
proceeding and such settlement does not contain any admission of fault by the
indemnified party.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Section
6 to the fullest extent permitted by law; provided, however, that (i) no
contribution shall be made under circumstances where the maker would not have
been liable for indemnification under the fault standards set forth in Section
6, (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and (iii) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8. REPORTS UNDER THE EXCHANGE ACT.
With a view to making available to the Investors the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or regulation of
the SEC that may at any time permit the Investors to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees to:
a. file with the SEC in a timely manner and make and keep available all
reports and other documents required of the Company under the Securities Act and
the Exchange Act so long as the Company remains subject to such requirements (it
being understood that nothing herein shall limit the Company's obligations under
Section 5(c) of the Securities Purchase Agreement) and the filing and
availability of such reports and other documents as is required for the
applicable provisions of Rule 144; and
b. furnish to each Investor so long as such Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested to permit the
Investors to sell such securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights of the Investors hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
assignable by each Investor to any transferee of all or any portion of the
Registrable Securities if: (i) the Investor agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company after such assignment, (ii) the Company is furnished
with written notice of (a) the name and address of such transferee or assignee
and (b) the securities with respect to which such registration rights are being
transferred or assigned, (iii) following such transfer or assignment, the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act and applicable state securities laws, (iv)
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein, and (v) such transfer shall have been made
in accordance with the applicable requirements of the Securities Purchase
Agreement. In addition, and notwithstanding anything to the contrary contained
in this Agreement, the Securities Purchase Agreement or the Warrants, the
Securities (as defined in the Securities Purchase Agreement) may be pledged, and
all rights of the Investors under this Agreement or any other agreement or
document related to the transaction contemplated hereby may be assigned, without
further consent of the Company, to a bona fide pledgee in connection with an
Investor's margin or brokerage accounts.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), and Investors (excluding Investors who are affiliates of the
Company) who hold fifty percent (50%) in interest of the Registrable Securities
(excluding Registrable Securities held by affiliates of the Company) or, in the
case of a waiver, with the written consent of the party charged with the
enforcement of any such provision. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each Investor and the
Company.
11. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
b. Any notices required or permitted to be given under the terms of
this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five (5) days after being placed in the mail, if mailed, or
upon receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Genus, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to an Investor, at such address as such Investor shall have provided in
writing to the Company or such other address as such Investor furnishes by
notice given in accordance with this Section 11(b), with a copy to:
▇▇▇▇▇ Fargo ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
Each party hereto may from time to time change its address or facsimile
number for notices under this Section 11(b) by giving at least ten (10) days'
prior written notice of such changed address or facsimile number, in the case of
the Investors to the Company, and in the case of the Company to all of the
Investors.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
d. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. The Company further agrees that service of
process upon the Company mailed by first class mail to the address set forth in
Section 11(b) shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. Nothing herein shall affect an
Investor's right to serve process in any other manner permitted by law. The
Company agrees that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
e. This Agreement, the Securities Purchase Agreement and the Warrants
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, the
Securities Purchase Agreement and the Warrants supersede all prior agreements
and understandings among the parties hereto and thereto with respect to the
subject matter hereof and thereof.
f. Subject to the requirements of Section 9 hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
g. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
j. All consents, approvals and other determinations to be made by the
Investors pursuant to this Agreement shall be made by the Investors holding more
than fifty percent (50%) of the Registrable Securities (determined as if all
Warrants then outstanding had been exercised by the payment of cash) then held
by all Investors.
k. The initial number of Registrable Securities included on any
Registration Statement and each increase to the number of Registrable Securities
included thereon shall be registered on behalf of each Investor pro rata based
on the number of Registrable Securities held by each Investor at the time of
such establishment or increase, as the case may be. In the event an Investor
shall sell or otherwise transfer any of such holder's Registrable Securities,
each transferee shall be deemed to have registered on its behalf a pro rata
portion of the number of Registrable Securities included on a Registration
Statement for such transferor. Any shares of Common Stock included on a
Registration Statement on behalf of any person or entity which does not hold any
Registrable Securities shall be deemed registered on behalf of the remaining
Investors, pro rata based on the number of shares of Registrable Securities then
held by such Investors. For the avoidance of doubt, (A) the number of
Registrable Securities held by an Investor shall be determined as if all
Warrants then outstanding and held by an Investor were exercised by the payment
of cash and (B) no provision of this subsection shall operate to reduce the
number of Registrable Securities registered on behalf of any Investor pursuant
to the first sentence of this subsection.
l. For purposes of this Agreement, the term "Business Day" means any
day other than a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law, regulation or
executive order to close.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
By:
Name:
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchaser]
Special Situations Private Equity Fund, L.P
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchaser]
Special Situations Technology Fund, L.P
By: /s/Austin Marke
Name: Austin Marke
Title: MD
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
By:
Name:
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Special Situations Fund, III L. P.
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Special Situation Cayman Fund, L.P.
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇▇ Family LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Investor
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇ Partners LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President- Gledroy Mgmt. Corp (General Partner)
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Gelfenbein Family LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President- Geldroy Mgmt. Corp (General Partner)
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇▇▇ Capital
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Forus Investments, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Delaware Charter
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
Bedford Oak Partners, LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
BayStar Capital, L.P
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
BayStar International, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
GENUS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Its: Chairman, President and CEO
INITIAL INVESTORS:
[Name of Purchasers]
The Timken Living Trust U/A/D 9/14/99
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: