Exhibit 4.4
ACCENT OPTICAL TECHNOLOGIES, INC.
AMENDMENT NO. 1 TO SECURITYHOLDERS AGREEMENT
This Amendment No. 1 to Securityholders Agreement (this "Amendment") is
entered as of this 9th day of March, 2004, among Accent Optical Technologies,
Inc., a Delaware corporation (the "Company"); JFI II, L.P., a Texas limited
partnership; Peter M. Joost; Peter M. Joost and Lindsay M. Joost, Trustees U/T/A
Dated 04/11/02; Bruce C. Rhine and Martha H. Rhine, as joint tenants with a
right of survivorship; David Johnson, Trustee, The Rhine 2000 Children's Trust
Dated June 12, 2000; Bio-Rad Laboratories, Inc.; FSC Corp.; Bruce Crawford;
Brian Hale, Rajeev Mundhe, Gregory Kaiser and Reid Langrill. All capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Securityholders Agreement among the aforementioned persons and the other
parties thereto dated as of July 31, 2000 (the "Agreement").
WHEREAS, Section 6.6(b) of the Agreement provides that the Agreement may be
amended or modified only by a writing signed by each of (i) the Company, (ii)
each of the Founders, (iii) Additional Securityholders holding at least 35% of
the aggregate number of Securities held by all Additional Securityholders, and
(iv) Management Securityholders holding at least 25% of the Securities then held
by all Management Securityholders on a fully diluted basis (together, the
"Required Parties");
WHEREAS, the undersigned represent not less than the Required Parties and
wish to clarify certain provisions contained in the Agreement;
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
1. Definitions. Section 1.1 of the Agreement is amended to amend and
restate the following definition:
"Additional Securities" means all Securities which are issued by the
Company at any time, other than (i) the Securities issued and outstanding
on the date hereof, (ii) any Securities issued to all of the holders of
Securities then outstanding on a proportionate basis, (iii) any Securities
issued to one or more employees of the Company pursuant to and in
accordance with any employee benefit plan, agreement or arrangement that
has been approved by the Board, (iv) any Securities that are issued in
connection with the acquisition by the Company or a subsidiary of the
Company of any business (whether by acquisition of stock or assets) or any
assets, (v) any Securities issued to any lender or other Person providing
debt financing to the Company in a bona fide financing transaction approved
by the Board, (vi) any Securities issued upon exercise, conversion or
exchange of any other Securities, (vii) any Securities issued to a Person
whose participation in the Company the Board determines in good faith,
based on factors particular to the identity, nature or domicile of such
person, would be an asset or benefit to the Company; (viii) any Securities
issued in amounts less than $500,000 in any single transaction or related
series of transactions; provided that the aggregate amount of all
transactions under this clause (viii) shall not exceed $2,000,000; and (ix)
any Securities issued or issuable in an Initial Public Offering.
2. Section 3.2 of the Agreement is amended to add a new subsection
3.2(g) as follows:
(g) This Section 3.2 shall not apply to any Securities
Transferred (or proposed to be Transferred) in connection with a
Qualified Public Offering.
3. Section 5.1 of the Agreement is amended to amend and restate
subsection 5.1(a) as follows:
(a) This Agreement shall terminate and, except for Sections 3.4,
6.2 and 6.4 through 6.15, shall be of no further force and effect and
shall not be binding upon any party hereto as of immediately prior to
the closing of a Qualified Public Offering. This Agreement shall
terminate in full (A) upon the dissolution, liquidation or winding up
of the Company, or (B) upon the approval of such termination by each
Securityholder. In any event, all provisions of this Agreement shall
terminate on December 31, 2025.
4. Section 6.7 of the Agreement is amended and restated in its
entirety as follows:
SECTION 6.7 NOTICES
All notices, requests and other communications to any party
hereunder shall be in writing (including telecopy or similar writing)
and shall be given,
(1) if to the Company:
Accent Optical Technologies, Inc.
131 NW Hawthorne, Suite 207
Bend, OR 97701
Attn: President
Telecopy: (541) 318-1966
(2) if to Additional Securityholders:
The addresses set forth on Schedule I.
(3) if to any Management Securityholder:
The addresses set forth on Schedule II.
(4) if to JFI II:
JFI II, L.P.
c/o Joost Enterprises Corporation
555 California Street,
Suite 5180
San Francisco, CA 94104
Attn: Peter M. Joost
Telecopy: (415) 875-5609
(5) if to Joost:
Peter M. Joost
c/o Joost Enterprises Corporation
555 California Street, Suite 5180
San Francisco, CA 94104
Attn: Peter M. Joost
Telecopy: (415) 875-5609
(6) if to Rhine:
Bruce C. Rhine
Martha H. Rhine
55925 Hashknife Road
Bend, OR 97707
Attention: Bruce C. Rhine
Telecopy: (541) 318-1966
(7) if to Rhine Trust:
David Johnson, Trustee
The Rhine Childrens' Family Trust
298 Mt. Top Road
Howard, PA 16841
Telecopy: (570) 748-3711
(8) if to Bio-Rad:
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: Sanford S. Wadler, Esq.
Telecopy: (510) 741-5815
or to such other address or telecopy number and with such other
copies, as such party may hereafter specify for the purpose by notice
to the other parties. Each such notice, request or other communication
shall be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and
evidence of receipt is received or (ii) if given by any other means,
upon delivery or refusal of delivery at the address specified in this
Section 6.7.
5. Schedule III of the Agreement is amended to add a new Section
8 as follows:
SECTION 8. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable
Securities pursuant to this Schedule III may be assigned (but only
with all related obligations) by a Securityholder to a Permitted
Transferee or to another Transferee who, after such assignment or
Transfer, holds at least a majority of the Registrable Securities
originally held by such Securityholder, provided that (i) the Company
is, within a reasonable time after such Transfer, furnished with
written notice of the name and address of
such Transferee or assignee and the Securities with respect to which
such registration rights are being assigned, and (ii) such Transferee
or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement as in effect at such time.
6. Except as explicitly amended by this Amendment No. 1, all of
the terms and conditions of the Agreement shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to Securityholders Agreement to be duly executed as of the date first written
above.
ACCENT OPTICAL TECHNOLOGIES, INC. JFI II, L.P.
BY: /s/ BY: Joost Enterprises Corporation,
----------------------------- its General Partner
NAME Bruce C. Rhine
---------------------------
BY: /s/
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TITLE: CEO Peter M. Joost, President
--------------------------
PETER M. JOOST AND LINDSAY M. JOOST, BRUCE C. RHINE AND MARTHA H. TRUSTEES
DATED 04/11/02 U/T/A RHINE, JWTROS
/s/ /s/
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/s/ /s/
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PETER M. JOOST BIO-RAD LABORATORIES, INC.
/s/
- ------------------------------- BY: /s/
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DAVID JOHNSON, TRUSTEE, THE RHINE 2000
CHILDREN'S TRUST DATED JUNE 12, 2000 NAME: Sanford Wadler
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/s/ TITLE: Vice President and General
- ------------------------------- Counsel
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FSC CORP. BRUCE CRAWFORD
BY: /s/ /s/
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NAME: John J. Quintal
--------------------------
TITLE: Vice President
-------------------------
BRIAN HALE RAJEEV MUNDHE
/s/ /s/
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GREGORY KAISER REID LANGRILL
/s/ /s/
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