REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of May 7, 1998 is between
Helix Technology Corporation (the "Company"), a Delaware corporation, and the
persons named on Schedule A attached hereto who have executed and delivered a
Stockholder Letter (the "Holders"). This Agreement is made pursuant to the
Agreement and Plan of Merger dated as of April 16, 1998 (the "Merger Agreement")
among the Company, Helix Acquisition Corporation ("Acquisition Corp."), a
Washington corporation and wholly-owned subsidiary of the Company, Granville -
Phillips Company ("GPC"), a Washington corporation, and the principal
stockholders of GPC named therein. The Merger Agreement provides for the
Company's acquisition of GPC through the merger of Acquisition Corp. into GPC
(the "Merger") and the exchange by the Holders of their shares of common stock
of GPC for shares of common stock of the Company (the "Helix Shares"). In order
to induce GPC to enter into the Merger Agreement, the Company has agreed to
provide the Holders with the registration rights set forth in this Agreement.
The parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms have the following meanings:
"Commission" means the United States Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the Commission thereunder.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, and by all other
amendments and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
"Registration Statement" means any registration statement of the
Company that covers any of the Helix Shares pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the Commission thereunder.
Section 2. Resale Registration.
(a) As soon as practicable after the effective date of the Merger, the
Company will file a Registration Statement on Form S-3 (or any similar
registration statement then in effect) under the Securities Act covering the
resale by each Holder of such Holder's Helix Shares from time to time in
transactions not involving an underwritten public offering and will thereafter
use reasonable efforts to cause the Registration Statement to be declared
effective by the Commission as soon as practicable thereafter and to keep the
Registration Statement continuously effective until the earlier of (x) the date
on which the Holder no longer holds any Helix Shares registered under the
Registration Statement or (y) the date on which the Helix Shares would become
eligible for sale pursuant to Rule 144 (or any similar provision then in effect)
under the Securities Act without regard to any tolling provisions that may be
applicable. In this connection:
(i) The Company will promptly (subject to Section 2(b))
prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for as long as such registration
is required to remain effective hereunder; will cause the Prospectus to
be supplemented by any required Prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities
Act; and will comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Helix Shares
covered by such Registration Statement during the applicable period in
accordance with the intended methods of disposition by the Holders set
forth in the Registration Statement or supplement to the Prospectus.
(ii) The Company will promptly furnish to each Holder such
number of copies of the Prospectus (including each preliminary
Prospectus) and any amendments or supplements thereto as the Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Helix Shares being sold by the Holder.
(iii) The Company will, on or prior to the date on which the
Registration Statement is declared effective, use reasonable efforts to
register or qualify the Helix Shares covered by the Registration
Statement under such other securities or "blue sky" laws of such states
of the United States as any Holder requests; provided, however, that
the Company shall not be required to qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify
or to file any general consent to service of process.
(iv) The Company will timely file all documents required to be
filed by it under the Exchange Act.
(v) The Company will promptly give notice to each Holder (1)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission or any state securities
authority for amendments and supplements to the Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement, (4) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or
exemption from qualification of any of the Helix Shares under state
securities or "blue sky" laws and (5) of the happening of any event
which makes any statement made in the Registration Statement or related
Prospectus untrue or which requires the making of any changes in the
Registration Statement or Prospectus so that they will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As soon as practicable following expiration of the
Suspension Period (as defined below), the Company will prepare and file
with the Commission and furnish a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the purchasers of the
Helix Shares, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statement therein, in light of the circumstances under which they were
made, not misleading.
(b) Upon receipt of a notice under clauses (2) through (5) of Section
2(a)(iv) (a "Suspension Notice"), each Holder will forthwith discontinue
disposition of the Helix Shares pursuant to the Registration Statement until the
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 2(a)(iv) or until the Holder is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, the Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Holder's possession, of the Prospectus
covering the Helix Shares current at the time of receipt of such notice;
provided, however, that in no event will the period from the date on which any
holder receives a Suspension Notice to the date on which any Holder receives
either the Advice or copies of the supplemented or amended Prospectus
contemplated by Section 2(a)(iv) (the "Suspension Period") exceed 90 days.
Section 3. Registration Expenses. The Company will bear all expenses
incurred in connection with the registration of the Helix Shares pursuant to
Section 2, including without limitation all printing, legal and accounting
expenses incurred by the Company and all registration and filing fees imposed by
the Commission, any state securities commission or The Nasdaq National Market
or, if the common stock of Helix is not then listed on The Nasdaq National
Market, the principal national securities exchange or national market system on
which the common stock is then traded or quoted. Each Holder will be responsible
for any brokerage commissions and taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
the Holder's Helix Shares and for any legal, accounting and other expenses
incurred by the Holder.
Section 4. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each Holder, its partners,
officers, directors, trustees, stockholders, employees and agents, and each
person who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Holders, together with the partners, officers,
directors, trustees, stockholders, employees and agents of such controlling
person (collectively, the "Controlling Persons"), from and against all losses,
claims, damages, liabilities and expenses, including without limitation
reasonable legal fees and expenses incurred by any Holder or any such
Controlling Person documented in writing, (collectively, the "Damages") to which
such Holder and any such Controlling Persons may become subject under the
Securities Act or otherwise, insofar as such Damages (or proceedings in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of material fact contained in the Registration Statement (or any amendment
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such Damages arise out of or are based upon any such untrue
statement or omission based upon information relating to such Holder furnished
in writing to the Company by such Holder specifically for use therein; provided,
however, that the Company shall not be liable to any Holder under this Section
4(a) to the extent that any such Damages were caused by the fact that such
Holder sold Helix Shares to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented if, and only if
(i) the Company has previously furnished copies of such amended or supplemented
Prospectus to such Holder and (ii) such Damages were caused by any untrue
statement or omission or alleged untrue statement or omission contained in the
Prospectus so delivered which was corrected in such amended or supplemented
Prospectus.
(b) Indemnification by the Holders. Each Holder agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, officers
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Holder, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder specifically for use in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto); provided, however, that such selling Holder shall not be obligated to
provide such indemnity to the extent that such Damages result from the failure
of the Company to promptly amend or take action to correct or supplement the
Registration Statement or Prospectus on the basis of corrected or supplemental
information provided by such Holder to the Company expressly for such purpose.
In no event shall the liability of any Holder of Helix Shares hereunder be
greater in amount than the amount of the proceeds received by such Holder upon
the sale of the Helix Shares giving rise to such indemnification obligation.
(c) Procedure. Each party entitled to indemnification under this
Section 4 (the "Indemnified Party") shall give prompt notice of any claim as to
which indemnification may be sought to the party required to provide
indemnification (the "Indemnifying Party"), provided that failure to give such
notice shall not relieve the Indemnifying Party of its obligations hereunder
except to the extent of actual prejudice. The Indemnifying Party shall be
entitled to assume the defense of any such claim with counsel reasonably
satisfactory to the Indemnified Party. The Indemnified Party may participate in
such defense at its own expense, provided that the Indemnifying Party will pay
such expense if representation of the Indemnified Party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party shall,
except with the consent of the Indemnified Party, agree to any settlement that
does not include a release of the Indemnified Party from all liability in
respect of such claim, and the Indemnified Party shall not settle such claim
without the prior written consent of the Indemnifying Party.
Section 5. Miscellaneous.
(a) Amendments and Waivers. This Agreement may not be amended, modified
or supplemented except in writing signed by the party to bound thereby.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been received at the
time delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next business day if timely delivered to a courier
guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of the Company and the heirs
and legal representatives of the Holders. This Agreement may not be assigned by
any Holder and any attempted assignment shall be void and of no effect and shall
terminate all obligations of the Company hereunder with respect to such Holder.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed as of the date stated above.
THE COMPANY:
HELIX TECHNOLOGY CORPORATION
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048-9171
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky
President and Chief Executive Officer
SCHEDULE A
Holders of Helix Shares
David B. Adler
Paul Clarke Arnold
Brian M. Bills
Daniel G. Bills
June M. Bills
Steven W. Black
Michael D. Borenstein
Carolyn R. Bundy
Gordon L. & Carolyn R. Bundy
as Joint Tenants & Not
as Tenants in Common
Scott R. Dix
Edward E. & Virginia V. Donaldson
as Joint Tenants with Right
of Survivorship
Norman R. & Elsie B. Eifler
as Joint Tenants & Not as
Tenants in Common
Fiduciary Trust Co. of N.Y.,
Degel & Co.
Tamara A. Harland
Daniel F. Hauser
Jerry B. Howard
Kathryn L. Kenigsberg
Anita Liane (Bills) McMillin
Richard L. Mellecker
George F. Menkick
Donald R. Miller, Trustee
of the Adeline V. Miller
Family Testamentary Trust
Donald R. Miller, Trustee
of the Donald R. Miller
Revocable Living Trust,
Dated: October 15, 1992
Eileen O'Donoghue-Cooper
Stephen L. Parrish
Diane L. (Bills) Paukstis
J. Frederick Pingree, Jr.
Sheila D. Purvis
William A. Ringer
Kristie K. Skiles
William D. III & Charlotte C.
Stewart, as Joint Tenants &
Not as Tenants in Common
Keith A. & Betty B. Warren
as Joint Tenants with
Right of Survivorship and
Not as Tenants in Common
Robert M. Willis
Gold I Trust
Brian M. Bills and Anita
Liane McMillin, Trustees
Gold II Trust
Brian M. Bills and Anita
Liane McMillin, Trustees
Platinum I Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Platinum II Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Silver I Trust
Brian M. Bills and Diane L. Paukstis,
Trustees
Silver II Trust
Brian M. Bills and Diane L. Paukstis,
Trustees