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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 2000
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SIPEX CORPORATION
(Exact name of Registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
MASSACHUSETTS 3674 04-6135748
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
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22 LINNELL CIRCLE
BILLERICA, MASSACHUSETTS 01821
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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JAMES E. DONEGAN
CHIEF EXECUTIVE OFFICER
SIPEX CORPORATION
22 LINNELL CIRCLE
BILLERICA, MASSACHUSETTS 01821
(978) 667-8700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT
FOR SERVICE, SHOULD BE SENT TO:
KENNETH J. GORDON, ESQ.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED AGGREGATE OFFERING PRICE (1) REGISTRATION FEE (2)
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<S> <C> <C> <C>
Common Stock, $.01 par value per share 3,599,999 $114,524,968 $30,235
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the registration
fee has been calculated based upon the average of the high and low prices
per share of the common stock of Sipex Corporation on the Nasdaq National
Market on March 16, 2000.
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SIPEX HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL SIPEX SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell securities, and we are not soliciting offers to buy these
securities.
SUBJECT TO COMPLETION, DATED MARCH 23, 2000.
SIPEX CORPORATION
3,599,999 Shares
Common Stock
This prospectus is part of a registration statement that covers 3,599,999
shares of our common stock. The shares may be offered and sold from time to time
by some of our stockholders. We will not receive any of the proceeds from the
resale of the shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"SIPX". On March 20, 2000, the last reported sale price for the common stock on
the Nasdaq National Market was $34.375 per share.
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INVESTING IN OUR COMMON STOCK IS RISKY. SEE "RISK FACTORS" BEGINNING ON PAGE 2.
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THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS
HAVE NOT APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is March 23, 2000.
<PAGE> 3
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere or incorporated by reference in this prospectus.
This prospectus may contain certain "forward-looking" information, as that term
is defined by (i) the Private Securities Litigation Reform Act of 1995 (the
"Act") and (ii) releases made by the Securities and Exchange Commission. Such
information involves risks and uncertainties. Our actual results may differ
materially from the results discussed in the forward-looking statements. Factors
that might cause such a difference include, but are not limited to, those
discussed in "Risk Factors."
THE COMPANY
We design, manufacture and market innovative, high performance, high
value-added analog integrated circuits. We sell our products across the analog
semiconductor market and have targeted high-growth sectors that we believe are
especially compatible with our design and process capabilities. Applications for
our products include: telecommunications, cellular telephones, networking
products, computers, computer peripherals, notebook and desktop computers,
industrial instrumentation, aerospace and military. Our products have been
incorporated into a broad range of electronic systems and products by more than
4,500 customers worldwide.
CONTACT INFORMATION
We incorporated in Massachusetts in May 1965 under the name Hybrid Systems
Inc. In 1987, we changed our name to SIPEX Corporation. Our executive offices
are located at 22 Linnell Circle, Billerica, Massachusetts 01821, and our
telephone number is (978) 667-8700.
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RISK FACTORS
You should carefully consider the following risks before making an
investment decision. Our business, results of operations and financial condition
could be adversely affected by any of the following risks. Additional risks and
uncertainties, including those that are not yet identified or that we currently
think are immaterial, may also adversely affect our business, results of
operations and financial condition. The market price of our common stock could
decline due to any of these risks, and you could lose all or part of your
investment.
OUR QUARTERLY AND ANNUAL OPERATING RESULTS ARE VOLATILE AND DIFFICULT TO PREDICT
AND MAY CAUSE OUR STOCK PRICE TO FLUCTUATE
The semiconductor industry has been highly cyclical and is subject to
significant economic downturns. We may experience substantial period-to-period
fluctuation in future operating results due to general semiconductor industry
conditions and overall economic conditions. Our quarterly and annual operating
results have varied significantly in the past and we expect that they will
continue to fluctuate in the future. You should not rely on period to period
comparisons of our results of operations as indications of our future
performance. In some future periods, our results of operations are likely to be
below the expectation of public market analysts and investors. In this case, the
price of our common stock would likely decline. Our revenues and results of
operations are difficult to forecast and depend on a variety of factors. These
factors include the following:
- availability of foundry capacity and raw materials;
- competitive pressures on selling prices;
- the timing and cancellation of customer orders;
- changes in product mix;
- our ability to introduce new products and technologies on a timely
basis;
- introduction of products and technologies by our competitors;
- market acceptance of our and our customers' products; and
- the timing of investments in research and development, including
tooling expenses associated with product development, process
improvements and production.
As a result of the foregoing or other factors, we may experience material
fluctuations in future operating results on a quarterly or annual basis which
could substantially harm our business, financial condition and operating
results.
IT WOULD BE DIFFICULT FOR US TO ADJUST OUR SPENDING IF WE EXPERIENCE ANY REVENUE
SHORTFALLS
Our future revenues will be difficult to predict and at times in the past
we have failed to achieve our revenue expectations. Our expense levels are
based, in part, on our expectation of future revenues, and expense levels are,
to a large extent, fixed in the short term. We may be unable to adjust spending
in a timely manner to compensate for any unexpected revenue shortfall. If
revenue levels are below expectations
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for any reason, our operating results are likely to be harmed. Due to the
absence of substantial noncancellable backlog, we typically plan our production
and inventory levels based on internal forecasts of customer demand, which are
highly unpredictable and can fluctuate substantially. Because we are continuing
to increase our operating expenses for personnel and new product development and
for inventory in anticipation of increasing sales levels, our operating results
would be harmed if increased sales are not achieved. In addition, we are limited
in our ability to reduce costs quickly in response to any revenue shortfalls.
WE MAY EXPERIENCE DIFFICULTIES IN DEVELOPING AND INTRODUCING NEW OR ENHANCED
PRODUCTS NECESSITATED BY TECHNOLOGICAL CHANGES
Our future success will depend, in part, upon our ability to anticipate
changes, to enhance our current products and to develop and introduce new
products that keep pace with technological advancements and address the
increasingly sophisticated needs of our customers. Our products may be rendered
obsolete if we fail to anticipate or react to change, and, as a result, our
revenues and cash flow may be negatively impacted. Our success depends on our
ability to develop new semiconductor devices for existing and new markets, to
introduce these products in a timely manner and to have these products selected
for design into new products of our customers. The development of these new
devices is highly complex and from time to time we have experienced delays in
completing the development of new products. Successful product development and
introduction depends on a number of factors, including:
- accurate new product definition;
- timely completion and introduction of new product designs;
- availability of foundry capacity;
- achievement of manufacturing yields; and
- market acceptance of our and our customer's products.
Our success also depends upon our ability to accurately specify and certify the
conformance of our products to applicable standards and to develop our products
in accordance with customer requirements. We cannot assure you that we will be
able to adjust to changing market conditions as quickly and cost-effectively as
necessary to compete successfully. Furthermore, we cannot assure you that we
will be able to introduce new products in a timely and cost-effective manner or
in sufficient quantities to meet customer demand or that these products will
achieve market acceptance.
OUR MANUFACTURING PROCEDURES ARE VERY COMPLEX WHICH MAY RESULT IN MANUFACTURING
DIFFICULTIES
Our manufacturing processes are highly complex and are continuously being
modified in an effort to improve yields and product performance. Process changes
can result in interruptions in production or significantly reduced yields that
could result in product introduction or delivery delays. In addition, yields can
be adversely affected by minute impurities in the environment or other problems
that occur in the complex manufacturing process. Many of these problems are
difficult to diagnose and time-consuming or expensive to remedy. From time to
time, we have experienced yield variances. In particular, new process
technologies or new products can be subject to especially wide variations in
manufacturing yields and efficiency. We cannot assure you that our foundry or
those of our suppliers will not experience yield variances or other
manufacturing problems that result in product introduction or delivery delays.
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BRINGING OUR NEW WAFER FABRICATION FACILITY TO FULL OPERATING CAPACITY COULD
TAKE LONGER AND COST MORE THAN WE ANTICIPATED
Our new wafer fabrication facility in Milpitas, California began
production in the second half of 1999. The facility is a sophisticated, highly
complex, state-of-the-art factory. Actual production rates depend upon the
reliable operation and effective integration of a variety of hardware and
software components. We cannot assure you that all of these components will be
fully functional or successfully integrated within the currently projected
schedule or that the facility will achieve the forecasted yield targets. Our
inability to achieve and maintain acceptable production capacity and yield
levels could adversely impact our gross margins, profitability and financial
condition. In addition, the amount of capital expenditures required to bring the
facility to full operating capacity could be greater than we currently
anticipate. Higher costs to bring the facility to full operating capacity will
reduce our margins and could harm our business.
WE RELY ON OUTSIDE FOUNDRIES TO SUPPLY WAFERS AND THOSE FOUNDRIES MAY NOT
PRODUCE AT ACCEPTABLE LEVELS
We currently rely on outside foundries to supply fully processed
semiconductor wafers. This reliance on outside foundries presents the following
potential risks:
- lack of adequate wafer supply;
- limited control over delivery schedules;
- unavailability of or delays in obtaining access to key process
technologies; and
- limited control over quality assurance, manufacturing yields and
production costs.
Additionally, the manufacture of integrated circuits is a highly complex and
technologically demanding process. Our third-party foundries have, from time to
time, experienced lower than anticipated manufacturing yields, particularly in
connection with the introduction of new products and the installation and
start-up of new process technologies. We cannot assure you that our outside
foundries will not experience lower than expected manufacturing yields in the
future.
Additionally, we purchase fully processed semiconductor wafers from
outside foundries and we do not have a guaranteed level of production capacity
at any of our foundries. The ability of each foundry to provide wafers to us is
limited by the foundry's available capacity. We cannot assure you that our
third-party foundries will allocate sufficient capacity to satisfy our
requirements. We experienced decreased allocations of wafer supplies from our
Taiwanese supplier during the second half of 1999 which reduced our capacity to
ship products, and, thus, recognize revenue. Additionally, any sudden reduction
or elimination of any primary source or sources of fully processed wafers could
result in a material delay in the shipment of our products. If any other delays
or shortages occur in the future our revenues and business will be harmed.
THE EXPECTED BENEFITS FROM OUR ACQUISITION OF CALOGIC MAY NOT OCCUR
We acquired Calogic with the expectation that the acquisition would
provide the following benefits:
- cost savings related to the elimination of redundant activities;
- the opportunity to generate revenue from new customers and new
products;
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- operating efficiencies such as combined managerial, sales, marketing
and technological expertise and personnel; and
- other synergies due to strategic fit and compatibility, including
common equipment platforms and information systems.
We may not realize any of the anticipated benefits of the acquisition.
Integrating Calogic's operations and personnel with our business has been, and
continues to be, a complex and difficult process. Achieving the benefits of the
acquisition will depend upon the successful integration of Calogic's business in
an efficient and timely manner. The integration of Calogic with our operations
could require additional costs and expenses as well as demands on management
personnel. The diversion of the attention of our management and any difficulties
encountered in the process of combining our companies could cause the disruption
of, or a loss of momentum in our activities. Further, we may experience
customer, supplier or employee attrition as a result of the acquisition. We
cannot assure you that the acquisition will have a favorable impact on our
business in the future.
WE HAVE SIGNIFICANT CAPITAL REQUIREMENTS TO MAINTAIN AND GROW OUR BUSINESS
In order to remain competitive, we must continue to make significant
investments in our facilities and capital equipment. We may seek additional
equity or debt financing from time to time and cannot be certain that additional
financing will be available on favorable terms, if at all. Moreover, any future
equity or convertible debt financing will decrease the percentage of equity
ownership of existing stockholders and may result in dilution, depending on the
price at which the equity is sold or the debt is converted.
WE MUST COMPLY WITH SIGNIFICANT ENVIRONMENTAL REGULATIONS WHICH IS DIFFICULT AND
EXPENSIVE
We are subject to a variety of federal, state and local governmental
regulations related to the use, storage, discharge and disposal of toxic,
volatile or otherwise hazardous chemicals used in our manufacturing process.
Although we believe that our activities conform to presently applicable
environmental regulations, the failure to comply with present or future
regulations could result in fines being imposed on us, suspension of production
or a cessation of operations. Any failure by us to control the use of, or
adequately restrict the discharge of, hazardous substances, or otherwise comply
with environmental regulations, could subject us to significant future
liabilities. In addition, we cannot assure you that we have not in the past
violated laws or regulations, which violations could result in remediation or
other liabilities, or that past use or disposal of environmentally sensitive
materials in conformity with then existing environmental laws and regulations
will not result in remediation or other liabilities under current or future
environmental laws or regulations.
WE MAY NOT SUCCESSFULLY EXPAND OUR SALES AND DISTRIBUTION CHANNELS
An integral part of our strategy is to expand our sales and distribution
channels. We are increasing resources dedicated to developing and expanding
these channels but we may not be successful doing so. If we are successful in
increasing our sales through indirect sales channels, we expect that those sales
will be at lower per unit prices than sales through direct channels, and revenue
we receive for each sale will be less than if we had sold the same product to
the customer directly. Selling through indirect channels may also limit our
contact with our customers. As a result, our ability to accurately forecast
sales, evaluate customer satisfaction and recognize emerging customer
requirements may be hindered.
Even if we successfully expand our distribution channels, any new
distributors may not have the technical expertise required to market and support
our products successfully. If parties do not provide
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adequate levels of services and technical support, our customers could become
dissatisfied, we would have to devote additional resources for customer support
and our brand name and reputation could be harmed.
Our strategy of marketing products directly to our customers and
indirectly through distributors may result in distribution channel conflicts.
Our direct sales efforts may compete with those of our indirect channels and, to
the extent different distributors target the same customers, distributors may
also come into conflict with each other. Although we have attempted to manage
our distribution channels to avoid potential conflicts, channel conflicts may
harm our relationships with existing sales representatives or distributors or
impair our ability to attract sales representatives.
OUR FUTURE SUCCESS DEPENDS ON RETAINING OUR KEY PERSONNEL AND ATTRACTING AND
RETAINING ADDITIONAL HIGHLY QUALIFIED EMPLOYEES
Our success depends upon the continued service of our executive officers
and other key management and technical personnel, and on our ability to continue
to attract, retain and motivate qualified personnel, such as experienced analog
circuit designers. The competition for these employees is intense. Most of our
employees are employees at-will and we have no fixed term employment agreements
with most employees which means that they can terminate their employment at any
time. We cannot assure you that we will be able to retain our design engineers,
executive officers and other key personnel. The loss of the services of one or
more of our design engineers, executive officers or other key personnel or our
inability to recruit replacements for these personnel or to otherwise attract,
retain and motivate qualified personnel could seriously impede our success.
WE MAY FACE SIGNIFICANT RISKS IN EXPANDING OUR INTERNATIONAL OPERATIONS
We derive a significant portion of our net sales from international sales,
including Asia, which involve a number of additional risks, including the
following:
- impact of possible recessionary environments in economies outside
the United States;
- longer receivables collection periods and greater difficulty in
accounts receivable collection;
- reduced protection for intellectual property rights in some
countries;
- foreign currency exchange rate fluctuations;
- difficulties in staffing and managing foreign operations;
- the burdens of complying with a variety of foreign laws; and
- political and economic instability.
If our international operations expand, an increasing portion of our revenues
will be denominated in foreign currencies, subjecting us to fluctuations in
foreign currency exchange rates. We do not currently engage in foreign currency
hedging transactions. However, as we continue to expand our international
operations, exposures to gains and losses on foreign currency transactions may
increase. We may choose to limit our exposure by the purchase of forward foreign
exchange contracts or similar hedging strategies. The currency exchange strategy
that we adopt may not be successful in avoiding exchange-related losses. In
addition, the
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above-listed factors may cause a decline in our future international revenue
and, consequently, may harm our business.
WE HAVE ONLY LIMITED PROTECTION FOR OUR PROPRIETARY TECHNOLOGY
Our success depends in part on our ability to obtain patents and licenses
and to preserve other intellectual property rights covering our products and
development and testing tools. We have obtained some patents and intend to
continue to seek patents on our inventions when appropriate. The process of
seeking patent protection can be time consuming and expensive and we cannot
assure you that patents will issue from currently pending or future applications
or that our existing patents or any new patents that may be issued will be
sufficient in scope or strength to provide meaningful protection or any
commercial advantage to us.
We cannot assure you that foreign intellectual property laws will protect
our intellectual property rights. Furthermore, we cannot assure you that others
will not independently develop similar products, duplicate our products or
design around any of our patents. We may be subject to, or may initiate
interference proceedings in the patent office, which can demand significant
financial and management resources.
WE MAY BECOME SUBJECT TO INFRINGEMENT CLAIMS
Although we do not believe that our products infringe the proprietary
rights of any third parties, we have in the past been subject to infringement
claims and third parties might assert infringement claims against us or our
customers in the future. Furthermore, we may initiate claims or litigation
against third parties for infringement of our proprietary rights or to establish
the validity of our proprietary rights. Litigation, either as plaintiff or
defendant, would cause us to incur substantial costs and divert management
resources from productive tasks. Any litigation, regardless of the outcome,
could harm our business.
If it appears necessary or desirable, we may seek licenses to intellectual
property that we are allegedly infringing. We may not be able to obtain licenses
on acceptable terms. The failure to obtain necessary licenses or other rights
could harm our business.
IF WE ARE UNABLE TO COMPETE EFFECTIVELY WITH EXISTING OR NEW COMPETITORS, WE
WILL EXPERIENCE FEWER CUSTOMER ORDERS, REDUCED REVENUES, REDUCED GROSS MARGINS
AND LOST MARKET SHARE
We compete in markets that are intensely competitive, and which exhibit
both rapid technological changes and continued price erosion. Our competitors
include many large domestic and foreign companies that have substantially
greater financial, technical and management resources than us. Loss of
competitive position could result in price reductions, fewer customer orders,
reduced revenues, reduced gross margins, and loss of market share, any of which
would affect our operating results and financial condition. To remain
competitive, we continue to evaluate our manufacturing operations, looking for
additional cost savings and technological improvements. If we are not able to
successfully implement new process technologies and to achieve volume production
of new products at acceptable yields, our operating results and financial
condition may be affected. Our future competitive performance depends on a
number of factors, including our ability to:
- accurately identify emerging technological trends and demand for
product features and performance characteristics;
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- develop and maintain competitive products;
- enhance our products by adding innovative features that
differentiate our products from those of our competitors;
- bring products to market on a timely basis at competitive prices;
- respond effectively to new technological changes or new product
announcements by others;
- increase device performance and improve manufacturing yields;
- adapt products and processes to technological changes; and
- adopt and/or set emerging industry standards.
We cannot assure you that our design, development and introduction schedules for
new products or enhancements to our existing and future products will be met. In
addition, we cannot assure you that these products or enhancements will achieve
market acceptance, or that we will be able to sell these products at prices that
are favorable to us.
WE CONFRONT RISKS FROM THE YEAR 2000 ISSUE
We use a significant number of computer software programs and operating
systems in our internal operations, including financial, order management, and
manufacturing systems. The inability of computer software programs to accurately
recognize and process date codes designating the year 2000 and beyond could
cause systems to yield inaccurate results or create problems that interrupt our
operations. We did not experience any significant interruption of computer
systems during the critical transition from the year 1999 to 2000. Based on
tests conducted as part of our Year 2000 compliance program, we do not
anticipate any material Year 2000 issues associated with our operations
hereinafter. However, potential failures in the computer systems of our
suppliers or customers could have an indirect, adverse impact on our operations.
OUR STOCK PRICE HAS BEEN VOLATILE AND COULD CONTINUE TO REMAIN VOLATILE
The trading price of our common stock has fluctuated in the past and may
be significantly affected by a number of factors, including the following:
- actual or anticipated fluctuations in our operating results;
- announcements of technological innovations or new products by us or
our competitors;
- developments with respect to patents, copyrights or proprietary
rights;
- conditions and trends in the semiconductor or other industries; and
- general market conditions.
In addition, the public stock markets have experienced extreme price and trading
volume volatility in recent months. This volatility has significantly affected
the market prices of securities of many technology
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companies for reasons frequently unrelated to the operating performance of the
specific companies. These broad market fluctuations may adversely affect the
market price of our common stock.
WE COULD FACE SECURITIES LITIGATION IF OUR STOCK PRICE REMAINS HIGHLY VOLATILE
In the past, securities class action litigation has often followed periods
of volatility in the market price of a company's securities. We may face
securities class action litigation in the future. Any litigation could result in
substantial costs and a diversion of management's attention and resources, which
could harm our business.
USE OF PROCEEDS
We will not receive any proceeds from the resale of the common stock by
the selling stockholders. The principal purpose of this offering is to effect an
orderly disposition of the selling stockholders' shares.
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SELLING STOCKHOLDERS
The following table sets forth certain information regarding beneficial
ownership of our shares as of February 6, 2000 and the number of shares which
may be offered by the selling stockholders. We have assumed, when calculating
the numbers in the table, that all of the shares owned by each selling
stockholder and offered pursuant to this prospectus will be sold. As of March 6,
2000, there were 21,893,189 shares of common stock outstanding. An asterisk
means that the number is less than 1%.
<TABLE>
<CAPTION>
SHARES OWNED BEFORE THE SHARES OFFERED PURSUANT TO THIS SHARES OWNED AFTER
OFFERING PROSPECTUS THE OFFERING
SELLING STOCKHOLDERS NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT
- --------------------- ------ ------- ------ ------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
Manuel Del Arroz 3,156,521 14.4% 3,156,521 14.4% 0 *
Cyrus Seaver 200,000 * 200,000 * 0 *
Traian Micu 100,000 * 100,000 * 0 *
Daniel Del Arroz 95,652 * 95,652 * 0 *
Edward Morris 47,826 * 47,826 * 0 *
---------------------------------------------------------------------------------------------------
Total: 3,599,999 16.4% 3,599,999 16.4%
</TABLE>
- -------------------
Prior to our acquisition of Calogic, we had an ongoing business
relationship with Calogic which consisted of the purchase from and sale to
Calogic of some equipment and materials. Additionally, we purchased equipment
from Calogic for our new Milipitas facility. Manuel Del Arroz was the President
of Calogic during the course of these transactions.
Manuel Del Arroz, Daniel Del Arroz and Edward Morris acquired their shares
in connection with our acquisition of Calogic on November 23, 1999. Pursuant to
the terms of a registration rights agreement entered in connection with the
acquisition, we agreed to register the shares issued to the Calogic
stockholders. The registration rights agreement is provided as Exhibit 4.3.
These rights are more fully described in the registration rights agreement.
Cyrus Seaver and Traian Micu received their shares as a result of our
purchase, in a separate transaction, of the minority interests of Alpha
Semiconductor, Inc. on November 23, 1999. Alpha Semiconductor, Inc. was a
majority owned subsidiary of Calogic. In connection with our issuance of shares
to Cyrus Seaver and Traian Micu we agreed to include the shares in the
registration rights agreement.
Manuel Del Arroz and Cyrus Seaver are presently employed by us.
The acquisition of Calogic was accounted for using the
pooling-of-interests method of accounting. The acquisition of the minority
interests of Alpha Semiconductor, Inc. was accounted for using the purchase
method of accounting.
General
Each of the selling stockholders represented to us that he was acquiring
the shares from us without any present intention of effecting a distribution of
those shares. In recognition of the fact that the selling stockholders may want
to be able to sell their shares when they consider appropriate, we agreed to
file with the Securities and
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Exchange Commission a registration statement on Form S-3 (of which this
prospectus is a part) to permit the public sale of the shares by the selling
stockholders from time to time and to use its commercially reasonable efforts to
keep the registration statement effective until the earlier of November 23,
2000 or such period as is required to satisfy our obligations under the
registration rights agreement. We will prepare and file such amendments and
supplements to the registration statement as may be needed to keep it effective
as necessary.
We have agreed to pay all expenses in connection with the registration and
resale of the shares (other than underwriting discounts and selling commissions
and the fees and expenses of counsel and other advisors to the selling
stockholders). We will indemnify the selling stockholders for any losses
incurred by them in connection with actions arising from any untrue statement of
a material fact in the registration statement or any omission of a material fact
required to be stated, unless the statement or omission was made in reliance
upon written information furnished to us by the selling stockholders. Similarly,
the registration rights agreement provides that each selling stockholder will
indemnify us and our officers and directors for any losses incurred by us in
connection with any action arising from any untrue statement of material fact in
the registration statement or any omission of a material fact required to be
stated, if the statement or omission was made in reliance on written information
furnished to us by the selling stockholder.
To the extent indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, we have been informed that in
the opinion of the Securities and Exchange Commission this indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
11
<PAGE> 14
PLAN OF DISTRIBUTION
The shares offered in this prospectus may be sold from time to time by the
selling stockholders for their own accounts. We will not receive any proceeds
from this offering. The selling stockholders will pay or assume brokerage
commission or other charges and expenses incurred in the resale of the shares.
The selling stockholders are not subject to any underwriting agreement.
The selling stockholders, or any parties who receive the shares from the selling
stockholders by way of a gift, donation or other transfer, may sell the shares
covered by this prospectus. The selling stockholders may sell the shares offered
by this prospectus from time to time at market prices prevailing at the time of
sale, at prices relating to the prevailing market prices or at negotiated
prices. The sales may be made in the over-the-counter market, on the Nasdaq
National Market, or on any exchange on which the shares are listed. The shares
may be sold by one or more of the following means:
- one or more block trades in which a broker or dealer will attempt to
sell all or a portion of the shares held by the selling stockholders
as agent or principal;
- purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
- in negotiated transactions; and
- through other means.
The selling stockholders may effect sales at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The selling stockholders may effect sales by selling shares
to or through broker-dealers, and such broker-dealers may receive compensation
in the form of underwriting discounts, concessions, commissions, or fees from
the selling stockholders and/or purchasers of the shares. Under the federal
securities laws, any broker-dealers that participate with the selling
stockholders in the distribution of the shares may be deemed to be underwriters
and any commissions received by them and any profit on the resale of the shares
positioned by them might be deemed to be underwriting compensation.
We intend to maintain the effectiveness of this prospectus until November
23, 2000 or such period as is required to satisfy our obligations under the
registration rights agreement between us and Calogic. We may suspend the selling
stockholders' rights to resell shares under this prospectus.
We will inform the selling stockholders that the antimanipulation rules
under Section 16 of the Securities Exchange Act may apply to sales in the market
and will furnish the selling stockholders with a copy of these rules if the
stockholders request them. We will also inform the selling stockholders that
they need to deliver a copy of this prospectus to the buyer when they sell
shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"SIPX." On March 22, 2000, the last reported sale price for the common stock
on the Nasdaq National Market was $36 per share.
12
<PAGE> 15
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission You may read and copy
any document we file at the public reference facilities, maintained by the
Securities and Exchange Commission:
<TABLE>
<S> <C> <C>
Judiciary Plaza Citicorp Center Seven World Trade Center
Room 1024 5000 West Madison Street 13th Floor
450 Fifth Street, N.W. Suite 1400 New York, New York 10048
Washington, D.C. 20549 Chicago, Illinois 60661
</TABLE>
Copies of these materials can also be obtained by mail at prescribed rates
from the Public Reference Section of the Securities and Exchange Commission, 450
Fifth Street, N.W., Washington, D.C. 20549 or by calling the Securities and
Exchange Commission at 1-800-SEC-0330, Our Securities and Exchange Commission
filings are also available to the public from the Securities and Exchange
Commission's website at "http://www.sec.gov."
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filing we
will make with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (File No. 000-27892):
1. Our Annual Report on Form 10-K for the year ended December 31,
1999; and
2. The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's registration statement on
Form 8-A filed with the Commission pursuant to Section 12(g) of the
Exchange Act and incorporating by reference the information
contained in the Registrant's Registration Statement on Form S-1
(SEC File No. 333-1328).
We will provide a copy of any and all of the information that is
incorporated by reference in this prospectus, not including exhibits to the
information unless those exhibits are specifically incorporated by reference
into this prospectus, to any person, without charge, upon written or oral
request.
Requests for copies of this information should be directed to Investor
Relations, SIPEX Corporation, 22 Linnell Circle, Billerica, Massachusetts 01821;
telephone number (978) 667-8700.
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission. You should rely only on the information or
representations provided in this prospectus. We have authorized no one to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of the document.
13
<PAGE> 16
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.
EXPERTS
Our consolidated financial statements as of December 31, 1999 and 1998,
and for each of the years in the three-year period ended December 31, 1999,
incorporated by reference in this prospectus and registration statement have
been audited by KPMG LLP, independent certified public accountants, as set
forth in their report incorporated by reference herein and are included in
reliance upon such report given upon the authority of said firm as experts in
accounting and auditing.
The report of KPMG LLP covering the December 31, 1999 financial statements
contains an explanatory paragraph that states that the consolidated financial
statements as of December 31, 1998 and for the two-year period then ended, have
been restated to reflect a pooling-of-interests transaction with Calogic. The
1999 and 1998 financial statements of Calogic were audited by Sallman, Yang &
Alameda and the report of KPMG LLP, insofar as it relates to the amounts
included for Calogic as of December 31, 1998 and for each of the years in the
two-year period then ended, is based solely on the report of Sallman, Yang &
Alameda. The report of Sallman, Yang & Alameda is also incorporated by reference
herein upon the authority of said firm as experts in accounting and auditing.
14
<PAGE> 17
================================================================================
You may rely only on the information contained in this prospectus. We have not
authorized anyone to provide information different from that contained in this
prospectus. Neither the delivery of this prospectus nor sale of common stock
means that information contained in this prospectus is correct after the date of
this prospectus. This prospectus is not a offer to sell or solicitation of an
offer to buy these shares of common stock in any circumstances under which the
offer solicitation is unlawful.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Summary.......................................... 1
Risk Factors..................................... 2
Use of Proceeds.................................. 9
Selling Stockholders............................. 10
Plan of Distribution............................. 12
Where You Can Find More Information.............. 13
Incorporation of Certain Information
by Reference.................................... 13
Legal Matters.................................... 14
Experts.......................................... 14
</TABLE>
3,599,999 SHARES
SIPEX CORPORATION
COMMON STOCK
-----------------------
PROSPECTUS
March 23, 2000
------------------------
================================================================================
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the expenses expected to be
incurred in connection with the issuance and distribution of the securities
being registered, other than underwriting compensation:
<TABLE>
<S> <C>
Registration fee -- Securities and Exchange Commission $30,235
Nasdaq National Market additional listing fee......... $ 9,000
Accounting fees and expenses.......................... $ 8,000
Legal fees and expenses............................... $15,000
Miscellaneous......................................... $ 2,000
TOTAL............................................ $64,235
</TABLE>
Sipex will bear all expenses shown above. All amounts, other than the
Securities and Exchange Commission registration fee and the Nasdaq National
Market additional listing fee are estimates solely for the purpose of this
offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sipex's Charter eliminates the personal liability of its directors as
permitted by the Massachusetts Business Corporation Law. In addition, Sipex's
Charter provide indemnity for Sipex's current or former officers and directors
against all liabilities and costs of defending an action or suit in which they
were involved by reason of their positions with Sipex. However, Sipex cannot
indemnify any person if a court finds that the person did not act in good faith.
The Company has entered into separate indemnification agreements with each
of its directors and executive officers, whereby the Company agreed, among other
things, to indemnify them to the fullest extent permitted by the Business
Corporation Law of the Commonwealth of Massachusetts, subject to specified
limitations, against certain liabilities actually and reasonably incurred by
them in any proceeding in which they are a party that may arise by reason of
their status as directors, officers, employees or agents or may arise by reason
of their serving as such at the request of the Company for another entity and to
advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified. The Company intends to enter into similar
separate indemnification agreements with any directors or officers who may join
the Company in the future. There is no pending litigation or proceeding
involving a director, officer, employee or other agent of the Company as to
which indemnification is being sought nor is the Company aware of any pending or
threatened litigation that may result in claims for indemnification.
ITEM 16. EXHIBITS.
The following exhibits, required by Item 601 of Regulation S-K, are filed
as a part of this registration statement. Exhibit numbers, where applicable, in
the left column correspond to those of Item 601 of Regulation S-K.
II-1
<PAGE> 19
<TABLE>
<CAPTION>
EXHIBIT NO. ITEM AND REFERENCE
- ----------- ------------------
<S> <C> <C>
3.1 -- Our Articles of Organization (filed as Exhibit 3.2 to Our Registration Statement on Form S-1, File No.
333-1328, and incorporated herein by reference)
3.2 -- Our Restated By-Laws (filed as Exhibit 3.3 to our Registrant's Registration Statement on Form S-1, File
No. 333-1328, and incorporated herein by reference)
4.1 -- Agreement and Plan of Reorganization dated October 21, 1999 by and among Sipex, Calogic and CAT
Acquisition Corporation I (filed as Exhibit 2.1 to our current report on Form 8-K dated December 8, 1999 and
incorporated herein by reference)
4.2 -- Amendment No. 1 to the Agreement and Plan of Reorganization dated November 23, 1999 by and among the
Registrant, Calogic, CAT Acquisition Corporation I (filed as Exhibit 2.2 to our current report on Form 8-K
dated December 8, 1999 and incorporated herein by reference)
4.3 -- Registration Rights Agreement dated October 21, 1999 by and among Sipex, Calogic, CAT Acquisition Corporation
I and the other parties named therein.
4.4 -- Agreement and Release dated as of November 23, 1999 by and among Traian Micu, Calogic, Alpha Semiconductor,
Inc., and Sipex Corporation.
4.5 -- Agreement and Release dated as of November 23, 1999 by and among Cyrus Seaver, Calogic, Alpha Semiconductor,
Inc., and Sipex Corporation.
4.6 -- Specimen certificate representing the Common Stock (filed as Exhibit 4.1 to our Registration Statement
on Form S-1 (File No. 33-1328) and incorporated herein by reference)
5.1 -- Legal opinion of Testa, Hurwitz & Thibeault, LLP
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Sallman, Yang & Alameda
23.3 -- Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1 -- Power of attorney (contained on signature page)
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereto.
(b) Insofar as indemnification for liabilities under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registration of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
II-2
<PAGE> 20
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as a part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(3) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereto.
(4) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(5) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-3
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Billerica, Commonwealth of Massachusetts on March
23, 2000.
SIPEX Corporation
By: /s/ James E. Donegan
----------------------------------
James E. Donegan
Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
Each person whose signature appears below on this registration statement
hereby constitutes and appoints James E. Donegan and Frank R. DiPietro and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (until
revoked in writing) to sign any and all amendments (including post-effective
amendments and amendments thereto) to this registration statement on Form S-3 of
Sipex Corporation, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary fully to all intents and purposes as he might or could do in person
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement on Form S-3 has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME CAPACITY DATE
- ---- -------- ----
<S> <C> <C>
/s/ James E. Donegan Chief Executive March 23, 2000
- ------------------------- Officer and Chairman of the
James E. Donegan Board of Directors
/s/ Frank R. DiPietro Executive Vice President, Chief March 23, 2000
- ------------------------- Financial Officer and Treasurer
Frank R. DiPietro
/s/ Manfred Loeb Director March 23, 2000
- -------------------------
Manfred Loeb
/s/ Steward S. Flaschen Director March 23, 2000
- -------------------------
Steward S. Flaschen
</TABLE>
II-4
<PAGE> 22
<TABLE>
<S> <C> <C>
/s/ Willy Sansen Director March 23, 2000
- -------------------------
Willy M.C. Sansen
/s/ John L. Sprague Director March 23, 2000
- -------------------------
John L. Sprague
/s/ Lionel Olmer Director March 23, 2000
- -------------------------
Lionel H. Olmer
</TABLE>
II-5
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
Number ----------------------
- ------
<S> <C> <C>
3.1 -- Our Articles of Organization (filed as Exhibit 3.2 to Our Registration Statement on Form S-1, File No.
333-1328, and incorporated herein by reference)
3.2 -- Our Restated By-Laws (filed as Exhibit 3.3 to our Registrant's Registration Statement on Form S-1, File
No. 333-1328, and incorporated herein by reference)
4.1 -- Agreement and Plan of Reorganization dated as of October 31, 1999 by and among Sipex, Calogic and CAT
Acquisition Corp. I (filed as Exhibit 2.1 to our current report on Form 8-K dated December 8, 1999 and
incorporated herein by reference)
4.2 -- Amendment No. 1 to the Agreement and Plan of Reorganization dated November 23, 1999 by and among the
Registrant, Calogic, CAT Acquisition Corporation I (filed as Exhibit 2.2 to our current report on Form 8-K
dated December 8, 1999 and incorporated herein by reference)
4.3 -- Registration Rights Agreement dated October 21, 1999 by and among Sipex, Calogic, CAT Acquisition Corporation
I and the other parties named therein.
4.4 -- Agreement and Release dated as of November 23, 1999 by and among Traian Micu, Calogic, Alpha Semiconductor,
Inc., and Sipex Corporation.
4.5 -- Agreement and Release dated as of November 23, 1999 by and among Cyrus Seaver, Calogic, Alpha Semiconductor,
Inc., and Sipex Corporation.
4.6 -- Specimen certificate representing the Common Stock (filed as Exhibit 4.1 to our Registration Statement
on Form S-1 (File No. 33-1328) and incorporated herein by reference)
5.1 -- Legal opinion of Testa, Hurwitz & Thibeault, LLP
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Sallman, Yang & Alameda
23.3 -- Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1 -- Power of attorney (contained on signature page)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
October 21, 1999
To each of the several Holders named in
Schedule A attached hereto:
Dear Sir/Madam:
Pursuant to the Agreement and Plan of Reorganization dated as of
October 21, 1999 (the "REORGANIZATION AGREEMENT"), among SIPEX Corporation
("PARENT"); CAT Acquisition Corporation I, a Delaware corporation and a wholly
owned subsidiary of Parent ("MERGER SUB"); Calogic, a California corporation
("CALOGIC"); and the other parties named therein, Merger Sub is being merged
with and into Calogic (the "MERGER"). In connection therewith you, as the
holders (together with your respective successors, assigns or transferees, the
"HOLDERS") of Common Stock of Calogic, are acquiring shares of Common Stock of
Parent. As the context requires, a Holder may be referred to as a "SELLER."
Capitalized terms used in this Registration Rights Agreement and not otherwise
defined herein shall have the meanings given to them in the Reorganization
Agreement. In connection with the Merger, Parent and you covenant and agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"AGREEMENT" shall mean this Registration Rights Agreement as
amended from time to time and in effect between the parties hereto.
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"COMMON STOCK" shall mean the Common Stock, $.01 par value, of
Parent, as constituted as of the date of this Agreement.
"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, all as the same shall be in
effect at the time.
"MERGER SHARES" shall mean (i) the shares of Common Stock of
Parent issued to the Holders pursuant to the Reorganization Agreement
and (ii) any shares of Common Stock issued in respect thereof as a
result of any stock split, stock dividend, share exchange, merger,
consolidation, recapitalization, reclassification or other distribution
with respect to or in exchange for or replacement of any Merger Shares.
"REGISTRATION EXPENSES" shall mean the expenses so described
in Section 4.
<PAGE> 2
-2-
"RESTRICTED STOCK" shall mean the Merger Shares, excluding
Merger Shares which (a) have been registered under the Securities Act
pursuant to an effective registration statement covering such Merger
Shares filed in compliance with the Securities Act and disposed of in
accordance with the registration statement covering them; or (b) have
been sold pursuant to Rule 144 under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"SELLING EXPENSES" shall mean the expenses so described in
Section 4.
2. REGISTRATION. Parent shall use its reasonable best efforts to file a
registration statement under the Securities Act on Form S-3 (or such successor
registration form under the Securities Act subsequently adopted by the
Commission which permits inclusion or incorporation of substantial information
by reference to other documents filed by Parent with the Commission), relating
to all of the shares of Restricted Stock on or before March 15, 2000; provided,
however, that Parent shall not be required to register shares of Restricted
Stock of any Holder who does not comply with such Holder's obligations in the
last two paragraphs of Section 3 below.
3. REGISTRATION PROCEDURES. In connection with the registration of any
shares of Restricted Stock under the Securities Act as described in Section 2,
Parent will do the following:
(a) prepare and file, as required by Section 2 above, with the
Commission a registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement (i) to become
effective as soon as practicable after the date of its filing with the
Commission and (ii) to remain effective until the earlier of the sale of all
Restricted Stock covered thereby or one year after the Closing Date; provided,
however, that Parent may suspend sales at any time under the registration
statement immediately upon notice to the Holders at the last known address of
the Holders, for a period or periods of time not to exceed in the aggregate 90
days during any 12-month period, if there then exists material, non-public
information relating to Parent which, in the reasonable opinion of Parent, would
not be appropriate for disclosure during that time; provided, that such
suspension shall not apply to any disposition of Restricted Stock pursuant to a
program sale which Parent reasonably determines permits no discretion on the
part of the Holder with respect to such sales;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above;
(c) furnish to each seller of Restricted Stock such number of
copies of the registration statement and each such amendment and supplement
thereto (in each case including exhibits) and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock
reasonably shall request, provided, however, that Parent shall not for any such
<PAGE> 3
-3-
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) prepare and file with Nasdaq an additional listing
application and use its reasonable best efforts to have the Restricted Stock
covered by such registration statement be accepted by Nasdaq for listing on the
Nasdaq National Market;
(f) notify each seller of Restricted Stock under 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 of which Parent has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and promptly prepare and furnish to
such seller a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to the purchasers of such Restricted
Stock, such prospectus shall not include an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing, provided that in no event shall Parent be obligated to file more than
three (3) amendments or supplements to reflect gifts or other non-public
transfers of Restricted Stock so that such shares may be sold under the
prospectus by such donees or transferees; and
(g) if the registration pursuant to Section 2 involves an
underwritten public offering (as determined in accordance with the last
paragraph of this Section 3), furnish, at the request of any Holder of
Restricted Stock included in the registration statement pursuant to Section 2 of
this Agreement, on the date that such Restricted Stock is delivered to the
underwriters for sale in such registration, (i) an opinion, dated such date, of
the counsel representing Parent for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to such Holder, and (ii) a
letter dated such date, from the independent certified public accountants of
Parent, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to such Holder (if permitted under applicable
professional standards);
(h) notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed; and
(i) in the event of any 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.
In connection with the registration of Restricted Stock hereunder, the
sellers of Restricted Stock will furnish to Parent in writing such information
requested by Parent with respect to themselves and the proposed distribution by
them as shall be necessary in order to assure compliance with applicable federal
and state securities laws.
Parent and Holders of a majority of the shares then constituting
Restricted Stock may determine, either before or after the initial filing of the
registration statement pursuant to Section 2, that the shares of Restricted
Stock may only be sold pursuant to such registration in an underwritten public
<PAGE> 4
-4-
offering. In that event, Parent will give prompt notice of such decision to each
seller, and afford each seller an opportunity to participate in such
underwritten offering. Parent may set time limits for the sellers to indicate
whether or not they desire to participate in such public offering, and may
require those sellers wishing to participate therein to execute custody
agreements and powers of attorney (which shall include authority to the
attorney-in-fact thereunder to execute an underwriting agreement with respect to
such offering) and other documentation in the form reasonably prescribed by
Parent and reasonably acceptable to the Holders. Upon the filing of a
registration statement for such underwritten offering (or an amendment to a
previously filed registration statement), sellers may only sell Restricted Stock
pursuant to such underwritten offering (or pursuant to an available exemption
from registration). If such underwritten offering is not completed within 75
days from the date of the determination referred to in the first sentence of
this paragraph, then such restriction shall no longer be applicable, and
Parent's obligations under Section 2 hereof shall be reinstated, with a new
registration statement (or amendment) to be filed by Parent as soon as
practicable and in any event within 15 days after the expiration of such 75-day
period.
4. EXPENSES. All expenses incurred by Parent in connection with
registrations pursuant to Sections 2 and 3, including, without limitation, all
registration, qualification and filing fees, fees and disbursements of counsel
and independent public accountants for Parent, fees and expenses incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, but excluding any Selling Expenses, are called
"REGISTRATION EXPENSES." All underwriting discounts (if any) and selling
commissions applicable to the sale of Restricted Stock are called "SELLING
EXPENSES." Except as set forth in this paragraph, Parent will pay all
Registration Expenses in connection with the registration statement under
Section 2. All Selling Expenses in connection with the registration statement
under Section 2 and the sale of Restricted Stock thereunder shall be borne by
the participating sellers in proportion to the number of shares sold by each.
The Registration Expenses associated with any amendment or supplement to the
prospectus to reflect a gift or other non-public transfer of shares of
Restricted Stock so that such shares may be sold under the prospectus by the
donee or transferee shall be paid by the seller or sellers which made such gift
or transfer.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with the registration, qualification or
compliance of the Restricted Stock under the Securities Act pursuant to Section
2 hereof, Parent will indemnify and hold harmless (i) each seller of such
Restricted Stock thereunder, (ii) to the extent the registration involves an
underwritten public offering as determined in accordance with Section 3, any
underwriter of such Restricted Stock thereunder and (iii) each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any expenses, losses, claims, damages and liabilities,
joint or several, to which such seller, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions,
proceedings or settlements in respect thereof) arising out of or are based upon
(a) any untrue statement or alleged untrue statement of material fact contained
in the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 2 hereof at the time it became
effective under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, offering
circular, or other document (including any related registration statement,
notification, or the like) incident to any such registration, qualification, or
compliance), (b) the omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made or (c) any violation by
Parent or its agents of
<PAGE> 5
-5-
any rule or regulation promulgated under the Securities Act, Exchange Act or
state securities laws applicable to Parent or its agents and relating to action
or inaction required of Parent in connection with such registration,
qualification or compliance and Parent will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that Parent will not be liable in any such case if any to the extent that (A)
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, an omission or alleged omission or
a violation or alleged violation so made in conformity with information
furnished in writing by any such seller, any such underwriter or any such
controlling person for inclusion in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 2
hereof or any prospectus contained therein, or any amendment or supplement to
such registration statement or prospectus, or (B) if such untrue statement or
alleged untrue statement, omission or alleged omission or violation or alleged
violation was corrected in an amended or supplemented prospectus delivered to
such seller and/or underwriter, as the case may be, and such seller or
underwriter failed to deliver a copy of the amended or supplemented prospectus
at or prior to the confirmation of the sale of the Restricted Stock to the
person or entity asserting any such loss, claim, damage or liability in any case
where such delivery is required by the Securities Act or any state securities
laws.
(b) In connection with the registration of the Restricted
Stock under the Securities Act pursuant to Section 2 hereof, each seller of such
Restricted Stock thereunder, if Restricted Stock held by such Holder are
included in the securities as to which such registrations being effected,
severally and not jointly, will indemnify and hold harmless Parent, each person,
if any, who controls Parent within the meaning of the Securities Act, each
officer of Parent who signs the registration statement, each director of Parent,
each underwriter and each person who controls such underwriter within the
meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which Parent or such officer, director,
underwriter or controlling person may become subject under the Securities Act,
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) the failure of such
seller to comply with the provisions of Section 8 herein, or (ii) any untrue
statement or alleged untrue STATEMENT of any material fact contained in the
registration statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arising out of or are based
upon the 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 Parent and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information furnished by such seller to Parent in writing
and stated to be specifically for use in the registration statement under which
such Restricted Stock was registered under the Securities Act pursuant to
Section 2 hereof or any prospectus contained therein, or any amendment or
supplement to such registration statement or prospectus; and provided, further,
that in no event shall any indemnity under this subsection 5(b) exceed the gross
proceeds from the offering received by such Holder from the sale of Restricted
Stock.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the
<PAGE> 6
-6-
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to such indemnified party other than under this
Section 5 and shall only relieve it from any liability which it may have to such
indemnified party under this Section 5 if and to the extent the indemnifying
party is prejudiced by such omission. In case any such claim or action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party,
and, after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense, the indemnifying party shall
not be liable to such indemnified party under this Section 5 for any legal
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and of liaison with
counsel so selected, provided, however, that, if the defendants in any such
action include both the indemnified party and the indemnifying party and if the
interests of the indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall have the right
to select a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
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 that 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. Each indemnified party shall furnish such information regarding
itself or the claim in question as an indemnifying party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
(d) In order to provide for just and equitable contribution to
joint liability in any case in which a claim for indemnification is made
pursuant to this Section 5 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, Parent and each seller
of Restricted Stock will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
proportion to the relative fault of Parent, on the one hand, and each holder,
severally, on the other hand; provided, however, that, in any such case, no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation and;
provided, further, that in no event shall any contribution under this subsection
5(d) on the part of any Holder exceed the gross proceeds received by such Holder
from the sale of Restricted Stock.
(e) The indemnities provided in this Section 5 shall survive
the transfer of any Restricted Stock by such Holder.
6. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act, Parent agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 or any successor provision thereof, at
all times;
<PAGE> 7
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(b) maintain registration of its Common Stock under Section 12
of the Exchange Act, as is necessary to enable Holders to utilize Form S-3 for
the sale of their Restricted Stock;
(c) file in a timely manner all reports and other documents
required of Parent under the Securities Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Restricted Stock, forthwith upon request: (i) a written statement by Parent
regarding its compliance 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 Parent and such other reports and documents so filed by
Parent under the Exchange Act.
7. CHANGES IN COMMON STOCK. If, and as often as, there is any change in
the Common Stock by way of a stock split, stock dividend, combination or
reclassification or similar event, or through a reorganization or
recapitalization or similar event, appropriate adjustment shall be made in the
provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
8. SELLERS' CONDUCT. With respect to any sale of Restricted Stock
pursuant to Section 2, you understand and agree as follows:
(a) You will carefully review the information concerning you
contained in the registration statement (if any) and will promptly notify Parent
if such information is not complete and accurate in all respects, including
having properly disclosed any position, office or other material relationship
within the past three years with Parent or its affiliates;
(b) You agree to sell your Restricted Stock only in the manner
set forth in the registration statement while such registration statement is
effective;
(c) You agree to comply with the anti-manipulation rules under
the Exchange Act in connection with purchases and sales of securities of Parent
during the time the registration statement remains effective;
(d) You agree to only sell shares in a jurisdiction after
counsel for Parent has advised that such sale is permissible under the
applicable state securities or "Blue Sky" laws;
(e) You agree to comply with the prospectus delivery
requirements of the Securities Act;
(f) You agree to promptly notify Parent of any and all planned
sales and immediately notify Parent of any completed sales of shares; and
(g) You agree to suspend sales during the periods when sales
are to be suspended pursuant to Section 3(a) herein.
9. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of
<PAGE> 8
-8-
the parties hereto (including, without limitation, transferees of any Restricted
Stock, provided that such transferee executes a counterpart signature page to
this Agreement in a form acceptable to Parent), whether so expressed or not, and
provided, further, that no holder or transferee of Merger Shares which have
ceased to be Restricted Stock shall have the benefit of the covenants and
agreements in this Agreement with respect to such Merger Shares.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, sent by nationally recognized
delivery service guaranteeing delivery in two business days or less, with the
price of delivery paid by the sender, or telecopied, addressed as follows:
if to Parent, SIPEX Corporation at 22 Linnell Circle,
Billerica, MA 01821, ATTN: Frank DiPietro (Fax Number 978-670-9088),
with a copy to Timothy Maguire, Esq., Testa, Hurwitz & Thibeault, LLP,
125 High Street, Boston, Massachusetts 02110 (Fax Number 617-248-7100);
and;
if to any other party hereto, at the address of such
party set forth on the signature page hereto;
or, in any case, at such other address or addresses as shall have been furnished
in writing to Parent (in the case of a holder of Restricted Stock) or to the
holders of Restricted Stock (in the case of Parent) in accordance with the
provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(d) This Agreement may be amended or modified, and provisions
hereof may be waived, with the written consent of Parent and the holders of at
least a majority of the outstanding shares of Restricted Stock.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register shares of Restricted Stock pursuant to this Section 2 may be
assigned by a Holder to a transferee or assignee of shares of Restricted Stock
which (a) is a subsidiary, parent, general partner, limited partner, retired
partner, member or retired member of a Holder, (b) is a Holder's family member
or trust for the benefit of an individual Holder, or (c) acquires the lesser of
(i) ten percent (10%) of the shares of Restricted Stock issued to such Holder
pursuant to the Reorganization Agreement (as adjusted for stock splits and
combinations) and (ii) the total number of shares (as adjusted for stock splits
and combinations) of
<PAGE> 9
-9-
Restricted Stock issued to such Holder pursuant to the Reorganization Agreement;
provided, however, (i) the transferor shall, within ten (10) days after such
transfer, furnish to the Company 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 shall agree to
be subject to all restrictions and covenants set forth in this Registration
Rights Agreement.
(The remainder of this page has been left blank intentionally.)
<PAGE> 10
-10-
Signature Page to
Registration Rights Agreement
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between the Company and you. You understand that
Parent is expressly relying on the accuracy of the information contained herein.
The foregoing information is complete and correct as of the date hereof. You
hereby undertake to promptly notify Parent of any change in the above
information prior to investment in Parent.
Very truly yours,
SIPEX CORPORATION
By: /s/ James E. Donegan
----------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written.
HOLDERS:
/s/ Manuel Del Arroz
- ------------------------------
Name: Manuel Del Arroz
Address:
/s/ Daniel Del Arroz
- ------------------------------
Name: Daniel Del Arroz
Address:
/s/ Edward Morris
- ------------------------------
Name: Edward Morris
Address:
<PAGE> 11
-11-
AGREED TO AND ACCEPTED as of the date first above written.
HOLDERS:
/s/ Traian Micu
- ------------------------------
Name: Traian Micu
Address: 5370 Johnston Road
Pleasanton, CA 94588
/s/ Cyrus Seaver
- ------------------------------
Name: Cyrus Seaver
Address: 155 Parkhaven Dr.
Danville, CA 94506
<PAGE> 12
SCHEDULE A
LIST OF HOLDERS
<TABLE>
<S> <C>
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MERGER SHARES
HOLDER (EXCLUDING ESCROW SHARES)
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Manuel Del Arroz 2,840,869
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Daniel Del Arroz 96,097
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Edward Morris 43,044
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Cyrus Seaver 200,000
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Traian Micu 100,000
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</TABLE>
<PAGE> 1
EXHIBIT 4.4
AGREEMENT AND RELEASE
This AGREEMENT AND RELEASE dated as of November 23, 1999 by and among
Traian Micu ("Mr. Micu"), and CALOGIC, ("Calogic"), Alpha Semiconductor, Inc., a
subsidiary of Calogic ("Alpha Semiconductor") and SIPEX Corporation ("SIPEX")
(Calogic, Alpha Semiconductor and SIPEX being referred to herein collectively
sometimes as the "Companies").
WITNESSETH:
WHEREAS, CAT Acquisition Corporation I, a Delaware corporation and
wholly owned subsidiary of SIPEX ("Merger Sub"), Calogic, and SIPEX have entered
into an Agreement and Plan of Reorganization dated as of October 21, 1999
setting forth certain terms and conditions pursuant to which Merger Sub is being
merged with and into Calogic (the "Merger").
WHEREAS, SIPEX is under no obligation to make the payments and
transfers set forth in Sections 2 and 3 of this Agreement and Release; and
WHEREAS, Mr. Micu is entering into this Agreement and Release as part
of the inducement for SIPEX to make the payments as set forth in Sections 2 and
3 of this Agreement and Release.
NOW THEREFORE, for good and valuable consideration more fully described
below, the parties hereto, intending to be legally bound, agree as follows:
1. VOIDING OF PRIOR AGREEMENTS. Mr. Micu and Alpha Semiconductor and
Calogic hereby supercede and void all prior agreements and understandings
between them concerning the terms and conditions of employment, compensation
and/or bonus arrangements, including without limitation those contained in a
certain employment agreement between Mr. Micu and Alpha Semiconductor dated
November 1, 1995 and any amendments thereto (the "Employment Agreement") and
those contained in a certain service contract letter between Mr. Micu and Wayne
Luty dated July 7, 1997 and any amendments thereto (the "Service Contract")
PROVIDED HOWEVER, this Agreement and Release will not supersede any
nondisclosure and/or confidentiality agreements between Mr. Micu and the
Companies.
2. PURCHASE OF SHARES OF ALPHA SEMICONDUCTOR. SIPEX will purchase from
Mr. Micu and Mr. Micu will transfer to SIPEX all right, title and interest in
all of the shares (the "Alpha Shares") of the common stock of Alpha
Semiconductor owned by Mr. Micu as of the date hereof. Mr. Micu represents and
warrants that (i) he is the sole beneficial owner and record holder of the Alpha
Shares, free and clear of any lien, pledge, hypothecation, restriction or
encumbrance; (ii) he has the full right and power to sell and transfer to SIPEX
the Alpha Shares, and the sale of the Alpha Shares provided for in this
Agreement and Release will vest in SIPEX good, valid and marketable title to the
Alpha Shares; and (iii) he is transferring all shares of the common stock of
Alpha Semiconductor owned or held by him pursuant to the terms herein. After
execution of this Agreement and upon payment by SIPEX of the consideration
described in Section 3, Mr. Micu shall deliver the stock certificate or
certificates evidencing the Alpha Shares,
<PAGE> 2
Agreement and Release - Page 2
duly endorsed for transfer to SIPEX and/or execute any stock power to transfer
the shares to SIPEX; whereupon Mr. Micu shall cease to be a stockholder of Alpha
Semiconductor.
3. PAYMENTS. SIPEX shall issue one hundred thousand (100,000) shares of
its common stock, $.01 par value (the "SIPEX Shares"), to Mr. Micu as the
purchase price for the Alpha Shares and consideration for the other agreements
of Mr. Micu contained in this Agreement and Release. Mr. Micu acknowledges and
agrees that (i) the SIPEX Shares are being acquired for his own account for the
purpose of investment and not with a view to, or for sale in connection with,
the distribution thereof, nor with any present intention of distributing or
selling the SIPEX Shares, (ii) the SIPEX Shares may not be sold without
registration under the Securities Act of 1933, as amended, or an exemption
therefrom, (iii) prior to his acquisition of the SIPEX Shares he has had the
opportunity to ask questions of and receive answers from representatives of
SIPEX concerning the finances, operations and business of SIPEX, and (iv) he is
and has at all relevant times been capable of evaluating the merits and risks of
the acquisition of the Shares and can afford a complete loss of his investment
therein. SIPEX and Mr. Micu agree that Mr. Micu will become a party to that
certain Registration Rights Agreement to be executed by SIPEX in connection with
the Merger and for purpose of that Agreement, the SIPEX Shares shall be treated
as Merger Shares.
4. EMPLOYMENT AT WILL. Mr. Micu understands and agrees that neither
this Agreement and Release nor any other document or representation regarding
employment with the Companies constitutes an implied or written employment
contract for employment with the Companies for a specified term.
5. RELEASE. Notwithstanding the provisions of Section 1542 of the
California Civil Code, in exchange for the consideration set forth in this
Agreement and Release and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mr. Micu, on behalf of himself and
his representatives, agents, estate, heirs, executors, successors and assigns
(collectively and individually the "Releasor") absolutely and unconditionally
hereby remises, releases and forever discharges Calogic and its predecessors,
successors (including without limitation SIPEX), parents, investors,
subsidiaries (including, without limitation, Alpha Semiconductor), divisions,
affiliates, assigns and insurers as well as its and their present and former
officers, directors, members, shareholders, employees, attorneys, partners,
representatives and/or agents, both individually and in their official
capacities (collectively and individually the "Releasees"), of and from any and
all debts, demands, actions, causes of action, covenants, contracts, damages,
claims, rights, liabilities, suits, sums, accounts, complaints, obligations,
agreements, promises, charges, dues, costs, expenses, controversies and
judgments, of every kind and nature whatsoever, both at law and in equity,
existing or contingent, known or unknown, suspected or unsuspected arising out
of or in any way related to agreements, events, acts or conduct at any time
prior to and including the date Mr. Micu signs this Agreement and Release,
including, without limitation: (i) any and all claims that arise out of, relate
to or concern any agreements Mr. Micu may have concerning his employment or
otherwise, including the Employment Agreement including without limitation, any
bonus and/or other compensation arrangements and/or Mr. Micu's employment with
or change in employment status with Alpha Semiconductor and/or Calogic; (ii) any
and all claims that arise out of, relate to or concern the relationship between
Mr. Micu and the Companies, including without limitation those arising out
<PAGE> 3
Agreement and Release - Page 3
of Mr. Micu's status as a director, officer, shareholder, employee or partner
(including, but not limited to, all claims or demands related to salary,
bonuses, commissions, stock, stock options, or any other ownership interests,
vacation or time off pay, fringe benefits, expense reimbursements, severance
pay, or any other form of severance); (iii) any and all claims based on any
federal, state or local law, constitution or regulation regarding either
employment or employment discrimination and/or retaliation including, without
limitation, those laws or regulations concerning discrimination on the basis of
race, color, age, handicap, physical or mental disability, creed, religion, sex,
sex harassment, sexual orientation, marital status, national origin, ancestry,
veteran status, military service and/or application for military service
including, but not limited to, the federal Civil Rights Act of 1964, as amended,
the federal Americans with Disabilities Act of 1990, the federal Age
Discrimination in Employment Act of 1967, as amended, the California Fair
Employment and Housing Act, as amended; and (iv) any and all claims based on any
contract, whether oral or written, express or implied, any tort; (including,
without limitation, fraud or violation of securities laws), promissory estoppel
and/or any other statutory or common law claim of any nature whatsoever . This
provision is intended by the parties hereto to be all-encompassing and to act as
a full and total release of any claims, whether specifically enumerated herein
or not, that the Releasor has, may have or has had against the Releasees, from
the beginning of the world to the date of this Agreement and Release.
(b) Mr. Micu hereby expressly waives any and all rights and benefits
conferred upon him by the provisions of Section 1542 of the California Civil
Code and expressly consents that this Agreement and Release shall be given full
force and effect according to each and all of its express terms and provisions,
including as well, those related to unknown and/or unsuspected claims, if any,
as well as those relating to any other claims specified in this Agreement and
Release. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Mr. Micu further represents that he understands and acknowledges the
significance and consequence of such release as well as the specific waiver of
Section 1542.
6. SETTLEMENT OF AMOUNTS DUE. Mr. Micu accepts the consideration
provided for in this Agreement and Release as full, complete and unconditional
payment, settlement, satisfaction and/or accord with respect to the sale of his
securities and any and all obligations and liabilities of the Releasees to the
Releasor, and with respect to all claims that could be asserted by Releasor
against the Releasees, including, without limitation, all potential claims for
wages, salary, commissions, bonuses, draws, incentive pay, deferred
compensation, stock and/or stock options, severance pay, vacation pay,
attorneys' fees, compensatory damages, exemplary damages, payment(s), expenses
and/or other compensation or benefits of any kind.
7. REPRESENTATIONS AND GOVERNING LAW.
(a) This Agreement and Release represents the complete and
sole understanding between the parties and supersedes any and all other
agreements and
<PAGE> 4
Agreement and Release - Page 4
understandings, whether oral or written including, specifically, without
limitation, the Employment Agreement and the Service Contract, PROVIDED,
HOWEVER, that nothing in this Agreement and Release will affect the
confidentiality and/or nondisclosure agreements between Mr. Micu and the
Companies, each of which shall remain in full force and effect in accordance
with their respective terms.
(b) Mr. Micu may not assign any of his rights or delegate any
of his duties or obligations under this Agreement and Release. The rights and
obligations of the Companies under this Agreement and Release shall inure to the
benefit of the successors and assigns of each of the Companies.
(c) This Agreement and Release may not be modified, altered or
amended except upon the express written consent of the Companies. The language
of all parts of this Agreement and Release shall in all cases be construed as a
whole according to its fair meaning and not strictly for or against any of the
parties. If any provision of this Agreement and Release, or part thereof, is
held invalid, void or voidable as against public policy or otherwise, the
invalidity shall not affect other provisions, or parts thereof, which may be
given effect without the invalid provision or part. To this extent, the
provisions, and parts thereof, of this Agreement and Release are declared to be
severable.
(d) This Agreement and Release shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of laws thereof.
(e) MR. MICU ACKNOWLEDGES THAT HE HAS READ THE FOREGOING
AGREEMENT AND RELEASE, FULLY UNDERSTANDS THE TERMS AND CONDITIONS OF SUCH
AGREEMENT AND RELEASE AND HE IS VOLUNTARILY EXECUTING THE SAME. MR. MICU
ACKNOWLEDGES THAT HE WAS INFORMED AND UNDERSTANDS THAT THIS AGREEMENT AND
RELEASE CONTAINS A GENERAL RELEASE OF ALL CLAIMS KNOWN OR UNKNOWN WHICH HE MAY
BRING AGAINST THE COMPANIES. IN ENTERING INTO THIS AGREEMENT AND RELEASE, MR.
MICU ACKNOWLEDGES THAT HE IS NOT RELYING ON ANY REPRESENTATION, PROMISE OR
INDUCEMENT MADE BY THE COMPANIES NOT EXPRESSLY SET FORTH HEREIN.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 5
Agreement and Release - Page 5
IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Release on the date first above written.
Witness: /s/ Alima Micu /s/ Traian Micu
--------------------------- ----------------------------------------
Name: Name:
COMPANIES:
SIPEX CORPORATION
By: /s/ James E. Donegan
-------------------------------------
Name:
Title:
CALOGIC
By: /s/ Manuel Del Arroz
-------------------------------------
Name: Manuel Del Arroz
Title: President
ALPHA SEMICONDUCTOR, INC.
By: /s/ Manuel Del Arroz
-------------------------------------
Name: Manuel Del Arroz
Title: President
<PAGE> 1
EXHIBIT 4.5
AGREEMENT AND RELEASE
This AGREEMENT AND RELEASE dated as of November __, 1999 by and among
Cyrus Seaver ("Mr. Seaver") and CALOGIC, ("Calogic"), Alpha Semiconductor, Inc.,
a subsidiary of Calogic ("Alpha Semiconductor") and SIPEX Corporation ("SIPEX")
(Calogic, Alpha Semiconductor and SIPEX being referred to herein collectively
sometimes as the "Companies").
WITNESSETH:
WHEREAS, CAT Acquisition Corporation I, a Delaware corporation and
wholly owned subsidiary of SIPEX ("Merger Sub"), Calogic, and SIPEX have entered
into an Agreement and Plan of Reorganization dated as of October 21, 1999, as
amended, setting forth certain terms and conditions pursuant to which Merger Sub
is being merged with and into Calogic (the "Merger");
WHEREAS, SIPEX is under no obligation to make the payments and
transfers set forth in Sections 2 and 3 of this Agreement and Release; and
WHEREAS, Mr. Seaver is entering into this Agreement and Release as part
of the inducement for SIPEX to make the payments as set forth in Sections 2 and
3 of this Agreement and Release.
NOW THEREFORE, for good and valuable consideration more fully described
below, the parties hereto, intending to be legally bound, agree as follows:
1. VOIDING OF PRIOR AGREEMENTS. Mr. Seaver and Alpha Semiconductor and
Calogic hereby supercede and void all prior agreements and understandings
between them concerning the terms and conditions of employment, compensation
and/or bonus arrangements, including without limitation those contained in a
certain employment agreement between Mr. Seaver and Alpha Semiconductor dated
November 1, 1995 and any amendments thereto including, without limitation, the
amendment dated January 1, 1997 (collectively, the "Employment Agreement")
PROVIDED, HOWEVER, this Agreement and Release will not supersede any
nondisclosure and/or confidentiality agreements between Mr. Seaver and the
Companies.
2. PURCHASE OF SHARES OF ALPHA SEMICONDUCTOR. SIPEX will purchase from
Mr. Seaver and Mr. Seaver will transfer to SIPEX all right, title and interest
in all of the shares (the "Alpha Shares") of the common stock of Alpha
Semiconductor owned by Mr. Seaver as of the date hereof. Mr. Seaver represents
and warrants that (i) he is the sole beneficial owner and record holder of the
Alpha Shares, free and clear of any lien, pledge, hypothecation, restriction or
encumbrance; (ii) he has the full right and power to sell and transfer to SIPEX
the Alpha Shares, and the sale of the Alpha Shares provided for in this
Agreement and Release will vest in SIPEX good, valid and marketable title to the
Alpha Shares; and (iii) he is transferring all shares of the common stock of
Alpha Semiconductor owned or held by him pursuant to the terms herein. After
execution of this Agreement, Mr. Seaver shall deliver the stock certificate or
certificates evidencing the Alpha Shares, duly endorsed for transfer to SIPEX
and/or execute any stock
<PAGE> 2
Agreement and Release - Page 2
power to transfer the shares to SIPEX; whereupon Mr. Seaver shall cease to be a
stockholder of Alpha Semiconductor.
3. PAYMENTS. In consideration for Mr. Seaver's sale of the Alpha Shares
to SIPEX and in consideration for Mr. Seaver's execution of this Agreement and
Release, SIPEX agrees (after execution of this Agreement and Release and
provided this Agreement and Release is not revoked pursuant to Section 9 hereof)
to issue two hundred thousand (200,000) shares of its common stock, $.01 par
value (the "SIPEX Shares"), to Mr. Seaver on or around January 1, 2000. Mr.
Seaver acknowledges and agrees that (i) the SIPEX Shares are being acquired for
his own account for the purpose of investment and not with a view to, or for
sale in connection with, the distribution thereof, nor with any present
intention of distributing or selling the SIPEX Shares, (ii) the SIPEX Shares may
not be sold without registration under the Securities Act of 1933, as amended,
or an exemption therefrom, (iii) prior to his acquisition of the SIPEX Shares he
has had the opportunity to ask questions of and receive answers from
representatives of SIPEX concerning the finances, operations and business of
SIPEX, and (iv) he is and has at all relevant times been capable of evaluating
the merits and risks of the acquisition of the Shares and can afford a complete
loss of his investment therein. SIPEX and Mr. Seaver agree that Mr. Seaver will
become a party to that certain Registration Rights Agreement to be executed by
SIPEX in connection with the Merger and for purpose of that Agreement, the SIPEX
Shares shall be treated as Merger Shares.
4. EMPLOYMENT AT WILL. Mr. Seaver understands and agrees that neither
this Agreement and Release nor any other document or representation regarding
employment with the Companies constitutes an implied or written employment
contract for continued employment with the Companies for a specific term.
Rather, Mr. Seaver's employment with the Companies is and will be on an
"at-will" basis. Accordingly, Mr. Seaver understands that either he or the
Companies may terminate his employment at any time and for any reason, with or
without cause or notice.
5. RELEASE. Notwithstanding the provisions of Section 1542 of the
California Civil Code, in exchange for the consideration set forth in this
Agreement and Release and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mr. Seaver, on behalf of himself
and his representatives, agents, estate, heirs, executors, successors and
assigns (collectively and individually the "Releasor") absolutely and
unconditionally hereby remises, releases and forever discharges Calogic and its
predecessors, successors (including without limitation SIPEX), parents,
investors, subsidiaries (including, without limitation, Alpha Semiconductor),
divisions, affiliates, assigns and insurers as well as its and their present and
former officers, directors, members, shareholders, employees, attorneys,
partners, representatives and/or agents, both individually and in their official
capacities (collectively and individually the "Releasees"), of and from any and
all debts, demands, actions, causes of action, covenants, contracts, damages,
claims, rights, liabilities, suits, sums, accounts, complaints, obligations,
agreements, promises, charges, dues, costs, expenses, controversies and
judgments, of every kind and nature whatsoever, both at law and in equity,
existing or contingent, known or unknown, suspected or unsuspected arising out
of or in any way related to agreements, events, acts or conduct at any time
prior to and including the date Mr. Seaver signs this Agreement and Release,
including, without limitation: (i) any and all claims that arise out of, relate
to or concern any
<PAGE> 3
Agreement and Release - Page 3
agreements Mr. Seaver may have concerning his employment, including the
Employment Agreement including without limitation, any bonus and/or other
compensation arrangements and/or Mr. Seaver's employment with or change in
employment status with Alpha Semiconductor and/or Calogic; (ii) any and all
claims that arise out of, relate to or concern the relationship between Mr.
Seaver and the Companies, including without limitation those arising out of Mr.
Seaver's status as a director, officer, shareholder, employee or partner
(including, but not limited to, all claims or demands related to salary,
bonuses, commissions, stock, stock options, or any other ownership interests,
vacation or time off pay, fringe benefits, expense reimbursements, severance
pay, or any other form of severance); (iii) any and all claims based on any
federal, state or local law, constitution or regulation regarding either
employment or employment discrimination and/or retaliation including, without
limitation, those laws or regulations concerning discrimination on the basis of
race, color, age, handicap, physical or mental disability, creed, religion, sex,
sex harassment, sexual orientation, marital status, national origin, ancestry,
veteran status, military service and/or application for military service
including, but not limited to, the federal Civil Rights Act of 1964, as amended,
the federal Americans with Disabilities Act of 1990, the federal Age
Discrimination in Employment Act of 1967, as amended, the California Fair
Employment and Housing Act, as amended; and (iv) any and claims based on any
contract, whether oral or written, express or implied, any tort; (including,
without limitation, fraud or violation of securities laws), promissory estoppel
and/or any other statutory or common law claim of any nature whatsoever . This
provision is intended by the parties hereto to be all-encompassing and to act as
a full and total release of any claims, whether specifically enumerated herein
or not, that the Releasor has, may have or has had against the Releasees, from
the beginning of the world to the date of this Agreement and Release.
(b) Mr. Seaver hereby expressly waives any and all rights and benefits
conferred upon him by the provisions of Section 1542 of the California Civil
Code and expressly consents that this Agreement and Release shall be given full
force and effect according to each and all of its express terms and provisions,
including as well, those related to unknown and/or unsuspected claims, if any,
as well as those relating to any other claims specified in this Agreement and
Release. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Mr. Seaver further represents that he understands and acknowledges the
significance and consequence of such release as well as the specific waiver of
Section 1542.
6. WAIVER OF RIGHTS AND CLAIMS UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967: Mr. Seaver acknowledges that he has been informed that
since he is 40 years of age or older, he has or might have specific rights
and/or claims under the Age Discrimination in Employment Act of 1967 (ADEA). Mr.
Seaver agrees that:
(a) In consideration for the amounts described in this
Agreement and Release, which are in addition to anything of value to which Mr.
Seaver is already entitled, Mr. Seaver
<PAGE> 4
Agreement and Release - Page 4
specifically waives such rights and/or claims to the extent that such rights
and/or claims arose prior to or on the date this Agreement and Release was
executed;
(b) Mr. Seaver acknowledges that he has been advised by the
Company of his right to consult with his attorney of choice prior to executing
this Agreement and Release; and
(c) Mr. Seaver further acknowledges that when he was presented
by the Companies with the initial draft of this Agreement and Release, he was
informed that he had at least (21) days within which to consider its terms and
to consult with or seek advice from an attorney or any other person of this
choosing.
7. SETTLEMENT OF AMOUNTS DUE. Mr. Seaver accepts the consideration
provided for in this Agreement and Release as full, complete and unconditional
payment, settlement, satisfaction and/or accord with respect to the sale of his
securities and any and all obligations and liabilities of the Releasees to the
Releasor, and with respect to all claims that could be asserted by Releasor
against the Releasees, including, without limitation, all potential claims for
wages, salary, commissions, bonuses, draws, incentive pay, deferred
compensation, stock and/or stock options, severance pay, vacation pay,
attorneys' fees, compensatory damages, exemplary damages, payment(s), expenses
and/or other compensation or benefits of any kind.
8. REPRESENTATIONS AND GOVERNING LAW.
(a) This Agreement and Release represents the complete and
sole understanding between the parties and supersedes any and all other
agreements and understandings, whether oral or written, including, specifically,
without limitation, the Employment Agreement, PROVIDED, HOWEVER, that nothing in
this Agreement and Release will affect the confidentiality and/or nondisclosure
agreements between Mr. Seaver and the Companies each of which shall remain in
full force and effect in accordance with their respective terms.
(b) Mr. Seaver may not assign any of his rights or delegate
any of his duties or obligations under this Agreement and Release . The rights
and obligations of the Companies under this Agreement and Release shall inure to
the benefit of the successors and assigns of each of the Companies.
(c) This Agreement and Release may not be modified, altered or
amended except upon the express written consent of the Companies. The language
of all parts of this Agreement and Release shall in all cases be construed as a
whole according to its fair meaning and not strictly for or against any of the
parties. If any provision of this Agreement and Release, or part thereof, is
held invalid, void or voidable as against public policy or otherwise, the
invalidity shall not affect other provisions, or parts thereof, which may be
given effect without the invalid provision or part. To this extent, the
provisions, and parts thereof, of this Agreement and Release are declared to be
severable.
<PAGE> 5
Agreement and Release - Page 5
(d) This Agreement and Release shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of laws thereof.
(e) MR. SEAVER ACKNOWLEDGES THAT HE HAS READ THE FOREGOING
AGREEMENT AND RELEASE , FULLY UNDERSTANDS THE TERMS AND CONDITIONS OF SUCH
AGREEMENT AND RELEASE AND HE IS VOLUNTARILY EXECUTING THE SAME. MR. SEAVER
ACKNOWLEDGES THAT HE WAS INFORMED AND UNDERSTANDS THAT THIS AGREEMENT AND
RELEASE CONTAINS A GENERAL RELEASE OF ALL CLAIMS KNOWN OR UNKNOWN WHICH HE MAY
BRING AGAINST THE COMPANIES. IN ENTERING INTO THIS AGREEMENT AND RELEASE, MR.
SEAVER ACKNOWLEDGES THAT HE IS NOT RELYING ON ANY REPRESENTATION, PROMISE OR
INDUCEMENT MADE BY THE COMPANIES NOT EXPRESSLY SET FORTH HEREIN.
9. EFFECTIVE DATE: Mr. Seaver may revoke this Agreement and Release
during the period of seven (7) days following its execution by Mr. Seaver. This
Agreement and Release shall not become effective or enforceable and no payments
will be made until the revocation period has expired.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 6
Agreement and Release - Page 6
IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Release on the date first above written.
Witness: /s/ Jerry H. Foreman /s/ Jerry H. Foreman
--------------------------- ----------------------------------------
Name: Name:
COMPANIES:
SIPEX CORPORATION
By: /s/ James E. Donegan
-------------------------------------
Name:
Title:
CALOGIC
By: /s/ Manuel Del Arroz
-------------------------------------
Name: Manuel Del Arroz
Title: President
ALPHA SEMICONDUCTOR, INC.
By: /s/ Manuel Del Arroz
-------------------------------------
Name: Manuel Del Arroz
Title: President
<PAGE> 7
Agreement and Release - Page 7
Cyrus Seaver acknowledges that he was informed and understands that he
has at least 21 days within which to consider the attached Agreement and
Release, has been advised of his right to consult with an attorney regarding
such Agreement and Release and has considered carefully every provision of the
Agreement and Release, and that after having engaged in those actions, prefers
to and has requested that he enter into the Agreement and Release prior to the
expiration of the 21-day period.
Not legible
Dated: Nov. 23, 1999 ---------------------------------------
Witness
Dated:
--------------------------------
<PAGE> 1
Exhibit 5.1
March 21, 2000
SIPEX Corporation
22 Linnell Circle
Billerica, MA 01821
RE: Registration Statement on Form S-3
Relating to 3,599,999 shares of common stock
Dear Sir or Madam:
We are counsel to SIPEX Corporation, a Massachusetts corporation (the
"Company"), and have represented the Company in connection with the preparation
and filing of the Company's Registration Statement on Form S-3 (the
"Registration Statement"), covering the resale to the public of up to 3,599,999
shares of the Company's common stock, $.01 par value per share (the "Shares"),
by certain stockholders of the Company.
We have reviewed the corporate proceedings taken by the Board of Directors
of the Company with respect to the authorization and issuance of the Shares. We
have also examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all corporate records, documents,
agreements or other instruments of the Company and have made all investigations
of law and have discussed with the Company's officers all questions of fact that
we have deemed necessary or appropriate.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/Testa, Hurwitz & Thibeault, LLP
------------------------------------
Testa, Hurwitz & Thibeault, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 15, 2000 relating to the
consolidated financial statements of SIPEX Corporation, which report appears in
SIPEX Corporation's Annual Report on Form 10-K for the year ended December 31,
1999. We also consent to the references to us under the heading "Experts" in
such Registration Statement.
The report of KPMG LLP covering the December 31, 1999 financial statements
contains an explanatory paragraph that states that the consolidated financial
statements as of December 31, 1998 and for the two-year period then ended, have
been restated to reflect a pooling-of-interests transaction with Calogic. The
1999 and 1998 financial statements of Calogic were audited by Sallman, Yang &
Alameda and the report of KPMG LLP, insofar as it relates to the amounts
included for Calogic as of December 31, 1998 and for each of the years in the
two-year period then ended, is based solely on the report of Sallman, Yang &
Alameda.
KPMG LLP
/s/ KPMG LLP
March 22, 2000
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 24, 1999, except for Note 14
dated January 14, 2000, relating to the financial statements of Calogic which
report appears in SIPEX Corporation's Annual Report on Form 10-K for the year
ended December 31, 1999. We also consent to the references to us under the
headings "Experts" in such Registration Statement.
Salman, Yung & Alameda
/s/ Salman, Yung & Alameda
Fremont, California
March 22, 2000
