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EXHIBIT 4.3
ARGONAUT TECHNOLOGIES, INC.
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 1, 2001
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TABLE OF CONTENTS
PAGE
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SECTION 1 Definitions.......................................................1
SECTION 2 Registration Rights...............................................2
2.1 Company Registration.........................................2
2.2 Registration on Form S-3.....................................3
2.3 Expenses of Registration.....................................4
2.4 Registration Procedures......................................5
2.5 Preparation; Reasonable Investigation........................7
2.6 Indemnification..............................................7
2.7 Information by Holder........................................9
2.8 Rule 144 Reporting..........................................10
2.9 Transfer of Registration Rights.............................10
2.10 Termination.................................................10
2.11 Representations and Warranties of the Company...............10
SECTION 3 Legends..........................................................11
3.1 Legends.....................................................11
SECTION 4 Miscellaneous....................................................11
4.1 Governing Law...............................................11
4.2 Entire Agreement; Amendment.................................11
4.3 Aggregation.................................................12
4.4 Notices, etc................................................12
4.5 Severability................................................12
4.6 Counterparts................................................12
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ARGONAUT TECHNOLOGIES, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of the
First day of March, 2001, by and among Argonaut Technologies, Inc., a Delaware
corporation (the "COMPANY"), and the members of ▇▇▇▇▇▇ Products, LLC, a Delaware
limited liability company and the successor in interest to ▇▇▇▇▇▇▇ Products,
LLC, an Indiana limited liability company ("▇▇▇▇▇▇") listed on the Schedule of
Members attached hereto as Exhibit A (collectively the "MEMBERS" and
individually a "MEMBER").
RECITALS
WHEREAS, the Company and ▇▇▇▇▇▇ propose to enter into an Agreement and
Plan of Reorganization (the "REORGANIZATION AGREEMENT") pursuant to which ▇▇▇▇▇▇
will merge (the "Merger") with and into a subsidiary of the Company ("MERGER
SUB") and Merger Sub will continue as the Surviving Corporation (capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Reorganization Agreement);
WHEREAS, pursuant to the Merger, all of the issued and outstanding
membership interests in ▇▇▇▇▇▇ ("MEMBERSHIP INTERESTS") shall be converted into
the right to receive the Cash Amount, and shares of voting Common Stock of the
Company ("COMPANY COMMON STOCK"); and
WHEREAS, the Company and the Members desire to provide for the rights of
the Members with respect to registration of Company Common Stock issued to the
Members in connection with the Merger.
Now, therefore, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
intending to be legally bound hereby the parties agree as follows:
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Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "Commission" shall mean the Securities and Exchange Commission of
the United States or any other U.S. federal agency at the time administering the
Securities Act of 1933.
1.2 "Common Stock" shall mean shares of the Company's Common Stock.
1.3 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission thereunder, as the same shall be in effect at the time.
1.4 "Holder" shall mean each of the Members (and their transferees as
permitted by Section 2.10) holding Registrable Securities or securities
convertible into Registrable Securities, plus those Holders set forth in that
certain Amended and Restated Stockholder Rights Agreement dated as of May 22,
1999 (the "Stockholder Rights Agreement").
1.5 "Other Holders" shall mean holders of Company securities, other than
the Holders and the Holders identified in the Stockholder Rights Agreement,
proposing to distribute their securities pursuant to a registration under
Section 2 of this Agreement or under the Stockholder Rights Agreement.
1.6 "Registrable Securities" means the Company Common Stock and any
shares of Common Stock issued or issuable in respect of such Company Common
Stock upon any stock split, stock dividend, recapitalization, or similar event.
Shares of the Company Common Stock or other securities shall only be treated as
Registrable Securities if they have not been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction.
1.7 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
1.8 "Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Sections 2.1 and 2.2
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
and independent public accountants for the Company (and fees and disbursements
of one special counsel for Holders, if any), blue sky fees, transfer taxes, fees
of transfer agents and registrars and expenses and the expense of any special
audits incident to or required by any such registration, fees and expenses of
the underwriter (excluding discounts and commissions but including liability
insurance if the Company so desires or if the underwriter so
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requires) (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
1.9 "Securities" shall mean Common Stock.
1.10 "Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar United States federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
1.11 "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the securities registered by the Holders.
SECTION 2
Registration Rights
2.1 Company Registration.
(a) Notice of Registration. If at any time or from time to time
the Company shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within twenty (20) days after receipt of such
written notice from the Company.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1(a)(i). In such event the right of any Holder to
registration pursuant to this Section 2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall,
together with the Company and the Other Holders, enter into an underwriting
agreement in customary form with the managing underwriter selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
2.1, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the number of shares of Registrable Securities to be included in such
registration without requiring any limitation in the number of shares to be
registered on behalf of the Company, provided that the number of shares of
Registrable Securities held by Holders and the Other Holders to be included in
such registration shall not be limited to less than twenty-five percent
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(25%) of the total number of shares to be included in such registration. The
Company shall so advise all Holders and Other Holders and the number of shares
that may be included in the registration and underwriting by all Holders and
Other Holders shall be allocated among them, as nearly as practicable, first, to
the Company (or, if applicable, to the holders for whose account the Company is
registering the securities), second, among the Holders in proportion to the
respective amounts of Registrable Securities held by such Holders at the time of
filing of the registration statement, and, third, among the Other Holders in
proportion to the number of shares proposed to be included in such registration
by such Other Holders; provided, however, that at all times, such allocation
shall be subject to the twenty-five percent (25%) threshold set forth in the
preceding sentence. To facilitate the allocation of shares in accordance with
the above provisions, the Company may round the number of shares allocated to
any Holder or Other Holder to the nearest one hundred (100) shares. If any
Holder or Other Holder disapproves of the terms of any such underwriting, such
holder may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.1 prior to the effectiveness of such registration whether or not any
Holder has elected to include Registrable Securities in such registration.
2.2 Registration on Form S-3.
(a) Request for Registration. For a period beginning June 30,
2001 and ending one year following the Closing of the Merger, provided that the
Company is a registrant entitled to use Form S-3 (or any successor form to Form
S-3) to register the Registrable Securities, the Holders may request that the
Company file one registration statement on Form S-3 (or any successor form to
Form S-3) for a public offering of shares of the Registrable Securities held by
the Holders the reasonably anticipated aggregate price to the public of which
would exceed $1,000,000, and, the Company shall use its best efforts to cause
such Registrable Securities to be registered for the offering on such form and
to cause such Registrable Securities to be qualified in such jurisdictions as
the Holders may reasonably request.
(b) Underwriting. In the event that a registration pursuant to
this Section 2.2 is for a registered public offering involving an underwriting,
the right of any Holder to registration pursuant to this Section 2.2 shall be
conditioned upon such Holder's participation in the underwriting arrangements
required by this Section 2.2, and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent requested shall be limited to the
extent provided herein.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company, but subject to the reasonable approval of
a majority in interest of the Holders. Notwithstanding any other provision of
this
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Section 2.2, if the managing underwriter advises the Holders in writing that the
number of shares to be underwritten exceeds the number that can be sold in such
offering so as to be likely to have a material adverse effect on the price or
amount at which the Holders can sell their Shares, then the Company shall so
advise all Other Holders, and the number of shares that may be included in the
registration and underwriting shall be allocated first among all Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders and at the time of filing the registration
statement and second among the Other Holders in proportion to the number of
shares proposed to be included in such registration by such Other Holders. No
Registrable Securities or other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any holder to the nearest one hundred (100) shares.
If any Holder of Registrable Securities or Other Holder
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the managing underwriter and the
Company. The Registrable Securities and/or other securities so withdrawn shall
also be withdrawn from registration.
(c) Limitations. Notwithstanding the foregoing, the Company shall
not be obligated to take any action pursuant to this Section 2.2: (i) in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act; (ii)
during the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and, provided further that the
Company shall have the right to defer filing a registration statement under the
Securities Act not more than once in any twelve month period; or (iii) if the
Company shall furnish to such Holder a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Company or the stockholders as a whole for
registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed ninety (90) days from the receipt of the
request to file such registration by such Holder, provided, however, that the
Company shall not utilize this right more than once in any twelve (12) month
period.
2.3 Expenses of Registration.
(a) Registration Expenses. The Company shall bear all
Registration Expenses incurred in connection with all registrations pursuant to
Section 2.1 and one registration pursuant to Section 2.2.
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(b) Selling Expenses. Unless otherwise stated in Section 2.4(a),
all Selling Expenses relating to securities registered on behalf of the Holders
shall be borne by the Holders pro rata on the basis of the number of shares so
registered by such Holder.
2.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will:
(a) keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof;
(b) as soon as practicable, but in the case of a request for
registration pursuant to Section 2.2 no later than 90 days after such request,
prepare and file with the Commission a registration statement with respect to
such securities and use its best efforts to cause such registration statement to
become and remain effective until the earlier of (i) the expiration of one
hundred twenty (120) days or (ii) the completion of distribution described in
the Registration Statement; provided, however, that (i) such 120-day period
shall be extended for a period of time equal to the period the Holder refrains
from selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 145, or any
successor rule under the Securities Act, permits an offering on a continuous or
delayed basis, and, provided further, that applicable rules under the Securities
Act governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (I) includes any prospectus required
by Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement;
(c) furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(e) in the event of an underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
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(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements made therein not misleading in the light of the circumstances then
existing;
(g) provide a transfer agent and registrar for all Registrable
Securities registered hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration;
(h) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any Holder reasonably requests and do any and all other acts and things which
may be necessary or advisable to enable such holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (h), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service or process in any such
jurisdiction, but the Company will be required to consent to service or process
in actions arising out of or in connection with the sale of the Registrable
Securities or any violation of state securities laws;
(i) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by any
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities;
(j) use its best efforts to obtain a comfort letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters with respect to
offerings of such type as the Holders may reasonably request;
(k) otherwise comply with all applicable rules and regulations of
the Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering a period of twelve
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
(l) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed, provided that the applicable listing requirements are satisfied.
The Company may require each holder of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing.
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2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give each Holder of Registrable
Securities, their underwriters, if any, and their respective counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment, thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
2.6 Indemnification.
(a) By Company. To the full extent permitted by law, the Company
will indemnify and hold harmless each Holder, each of its officers and directors
and partners, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act and each Member and its
officers, directors and partners and each person controlling such Member within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities, joint or several, (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of the Securities Act, the
Exchange Act or any state or federal securities law, or any rule or regulation
promulgated under such Acts or law applicable to the Company in connection with
any such registration, qualification or compliance, and the Company will
reimburse each such Holder, each of its officers, directors and partners, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, each Member, each of its officers, directors and
partners and each person controlling such Member, in advance of the final
disposition of such matter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to any such Holder to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person, underwriter or
Member and stated to be specifically for use therein. If the Holders and Members
are represented by counsel other than counsel for the Company, the Company will
not be obligated under this Section 2.6(a) to reimburse legal fees and expenses
of more than one separate counsel for all Holders and Members.
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(b) By Holders. Each Holder will, if Registrable Securities held
by such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify and hold harmless the
Company, each of its directors, each of its officers, each underwriter, if any,
of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or 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 will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the amount of net proceeds
received by such Holder in respect of the Registrable Securities sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
(c) Procedures. Each party entitled to indemnification under this
Section 2.6 (the "INDEMNIFIED PARTY") shall give written notice to the party
required to provide indemnification (the "INDEMNIFYING PARTY") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 2.6 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party or is insufficient with respect to any loss, liability, claim,
damage, or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid
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or payable by such indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to reflect (i) the
relative benefits received on the one hand by the Company and on the other Hand
by the Holders and Other Holders of the Registrable Securities covered by the
registration statement; and (ii) the relative fault of the Company on the one
hand and of the Holders and Other Holders of the Registrable Securities on the
other in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense, as well as any other relevant equitable
considerations.
The relative benefits received shall be deemed to be in the same
proportion which the total proceeds from the offering of the securities (net
underwriting discounts and commissions but before adding deducting expenses)
received by the Company bears to the total proceeds from the offering of
securities (net underwriting discounts and commissions but before deducting
expenses) received by the Holder and Other Holders of Registrable Securities
with respect to such offering, and in each case, such net proceeds received from
such offering shall be determined as set forth on the table of the cover page of
the prospectus. Notwithstanding the provisions of this section, no Holder shall
be required to contribute any amount in excess of the proceeds (net of
underwriting discounts and commissions but before deducting expenses) received
by such Holder in the registration.
The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of any loss, liability, claim,
damage or expense referred to above shall be deemed to include, subject to the
limitations set forth in Section 2.6(c), any legal or other fees, or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.6 is determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. No person guilty of "fraudulent
misrepresentation" within the meaning of Section 11 of the Securities Act shall
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) Controlling Agreement. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions of this Section 2.6, the
provisions in the underwriting agreement shall control.
2.7 Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by them as the Company may request in writing
and only as shall be necessary to enable the Company to comply with the
provisions hereof in connection with any registration, qualification or
compliance referred to in this Agreement.
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2.8 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time it is subject to such reporting requirements);
(c) Furnish to any Holder forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any it
is subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as such Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing such Holder to sell any such securities
without registration.
2.9 Transfer of Registration Rights. The rights to cause the Company to
register securities granted Holders under Sections 2.1 and 2.2 may be assigned
in connection with any transfer or assignment by a Holder of Registrable
Securities provided that: (i) such transfer may otherwise be effected in
accordance with applicable securities laws, (ii) such transfer is effected in
compliance with the restrictions on transfer contained in this Agreement and in
any other agreement between the Company and the Holder, and (iii) such assignee
or transferee is a constituent partner of a Member or purchases (a) at least
125,000 shares of Common Stock or (b) all shares of Common Stock held by a
Member. No transfer or assignment will divest a Holder or any subsequent owner
of such rights and powers unless all Registrable Shares are transferred or
assigned.
2.10 Termination. The registration rights granted pursuant to this
Section 2 shall terminate as to any Holder at the later of (i) five years after
the Company's initial public offering or (ii) at such time as such Holder may
sell under Rule 144, or a successor rule, in a three month period all
Registrable Securities then held by such Holder.
2.11 Representations and Warranties of the Company. The Company
represents and warrants to each of the Members as follows:
(i) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Restated Certificate or By-laws of the Company
or any provision of any indenture, agreement or other instrument to which it or
any or its properties or assets is bound, conflict with, result in a breach of
or constitute (with due
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14
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(ii) This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
SECTION 3
Legends
3.1 Legends. Each Member understands that the share certificates
evidencing any Registrable Securities shall be endorsed with the following
legends (in addition to any legends required under applicable state securities
laws):
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) "THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF AN AGREEMENT BETWEEN
THE COMPANY AND THE REGISTERED HOLDER OR HIS PREDECESSOR IN INTEREST. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.
(c) Any legend required to be placed thereon by the California
Commissioner of Corporations or any other applicable state securities laws.
SECTION 4
Miscellaneous
4.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware as applied to contracts made and to be fully
performed entirely within that state between residents of that state.
4.2 Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. This Agreement or any term hereof may be amended,
waived, discharged or terminated by a written
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15
instrument signed by the Company and (i) the Holders, or transferees of such
Holders, holding more than fifty percent (50%) of the Registrable Securities,
provided, however, that no such amendment may treat any Holder in a manner
different from the other Holders.
4.3 Aggregation. For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; provided, that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under Section 2.
4.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be deemed given if in writing and mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to a Holder, at such Holder's address as set forth
on Exhibit A to this Agreement, or at such other address as such Holder shall
have furnished to the Company in writing, or (b) if to any other holder of any
Registrable Securities, at such address as such holder shall have furnished the
Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last holder of such Registrable
Securities who has so furnished an address to the Company, or (c) if to the
Company, at the address of its principal offices and addressed to the attention
of the Corporate Secretary and with a copy to Wilson, Sonsini, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq. or at such other address as the Company shall have furnished to
the Members.
4.5 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
4.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
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16
The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
THE COMPANY:
ARGONAUT TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
---------------------------------
MEMBERS:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
17
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------- ---------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇
----------------------------------- ---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
NORTH COAST TECHNOLOGY INVESTORS, LP THE DOW CHEMICAL COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Printed: ▇▇▇▇ ▇▇▇▇▇ Printed: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Its: Manager of General Partner Its: Executive Vice President & CFO
----------------------------------- ---------------------------------------
SAPHFIRE, INC. ▇▇▇▇ ▇▇▇▇▇▇ VENTURES, part of
ROSE-HULMAN INSTITUTE OF
TECHNOLOGY
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Printed: ▇▇▇ ▇▇▇▇▇▇▇▇ Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Its: President Its: President, RHV
----------------------------------- ---------------------------------------
18
EXHIBIT A
SCHEDULE OF MEMBERS
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
North Coast Technology Investors, LP The Dow Chemical Company
Saphfire, Inc. ▇▇▇▇ ▇▇▇▇▇▇ Ventures, part of Rose-Hulman
Institute of Technology