SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. ___)*
ALYN CORPORATION
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(Name of Issuer)
Common Stock, $.001 par value
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(Title of Class of Securities)
022611107
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(CUSIP Number)
Larry A. Kimmel
Robert Fleming, Inc.
320 Park Avenue, 11th Floor
New York, NY 10022
(212) 508-3610
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 8, 1999
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13-d(f), or 13d-1(g), check the
following box |_|.
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
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CUSIP No. 022611107 SCHEDULE 13D Page 2 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
FLEMING US DISCOVERY FUND III, L.P.
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2 Check the Appropriate Box If a Member of a Group
a. |X|
b. |_|
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3 SEC Use Only
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4 Source of Funds
WC
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
Delaware
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7 Sole Voting Power
Number of
Shares 3,770,667 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 604,333 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
3,770,667 shares of Common Stock
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10 Shared Dispositive Power
604,333 shares of Common Stock
--------------------------------------------------------
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
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12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
PN
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SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 022611107 SCHEDULE 13D Page 3 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
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2 Check the Appropriate Box If a Member of a Group
a. |X|
b. |_|
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3 SEC Use Only
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4 Source of Funds
WC
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
Bermuda
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7 Sole Voting Power
Number of
Shares 604,333 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 3,770,667 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
604,333 shares of Common Stock
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10 Shared Dispositive Power
3,770,667 shares of Common Stock
--------------------------------------------------------
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
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12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
PN
<PAGE>
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SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 022611107 SCHEDULE 13D Page 4 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
FLEMING US DISCOVERY PARTNERS, L.P.
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2 Check the Appropriate Box If a Member of a Group
a. |X|
b. |_|
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3 SEC Use Only
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4 Source of Funds
AF
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
Delaware
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7 Sole Voting Power
Number of
Shares 0 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 4,375,000 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
0 shares of Common Stock
--------------------------------------------------------
10 Shared Dispositive Power
4,375,000 shares of Common Stock
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
PN
<PAGE>
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SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 022611107 SCHEDULE 13D Page 5 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
FLEMING US DISCOVERY, LLC
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2 Check the Appropriate Box If a Member of a Group
a. |_|
b. |_|
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3 SEC Use Only
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4 Source of Funds
AF
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
Delaware
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7 Sole Voting Power
Number of
Shares 4,375,000 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 4,375,000 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
4,375,000 shares of Common Stock
--------------------------------------------------------
10 Shared Dispositive Power
4,375,000 shares of Common Stock
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
OO
<PAGE>
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SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 022611107 SCHEDULE 13D Page 6 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
ROBERT FLEMING, INC.
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2 Check the Appropriate Box If a Member of a Group
a. |_|
b. |_|
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3 SEC Use Only
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4 Source of Funds
AF
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
Delaware
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7 Sole Voting Power
Number of
Shares 0 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
0 shares of Common Stock
--------------------------------------------------------
10 Shared Dispositive Power
0 shares of Common Stock
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
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13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
IA, CO
<PAGE>
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SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 022611107 SCHEDULE 13D Page 7 of 15 Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
ROBERT FLEMING HOLDINGS, LTD.
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2 Check the Appropriate Box If a Member of a Group
a. |_|
b. |_|
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3 SEC Use Only
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4 Source of Funds
AF
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
United Kingdom
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7 Sole Voting Power
Number of
Shares 0 shares of Common Stock
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting 0 shares of Common Stock
Person --------------------------------------------------------
With 9 Sole Dispositive Power
0 shares of Common Stock
--------------------------------------------------------
10 Shared Dispositive Power
0 shares of Common Stock
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,375,000 shares of Common Stock
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12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
26.5%
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14 Type of Reporting Person
HC, CO
<PAGE>
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SEE INSTRUCTIONS BEFORE FILLING OUT!
STATEMENT PURSUANT TO RULE 13d-1
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OR 1934, AS AMENDED
================================================================================
Responses to each item below are incorporated by reference into each
other item, as applicable.
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to Common Stock, par value
$0.001 per share ("Common Stock"), of Alyn Corporation, a Delaware corporation
("Issuer"). The address of the Issuer's principal executive offices is 16761
Hale Avenue, Irvine, California 92606.
Item 2. Identity and Background.
This statement is being filed pursuant to a Joint Filing Agreement
(attached as Exhibit 1 and incorporated herein by reference) by (i) Fleming US
Discovery Fund III, L.P. ("US Fund"), (ii) Fleming US Discovery Offshore Fund
III, L.P. ("Offshore Fund"), (iii) Fleming US Discovery Partners, L.P.,
("Fleming Partners"), the general partner of the US Fund and a general partner
of the Offshore Fund, (iv) Fleming US Discovery, LLC ("Discovery"), the general
partner of Fleming Partners, (v) Robert Fleming, Inc. ("RFI"), investment
adviser to the US Fund and Offshore Fund (collectively, the "Funds"), and (vi)
Robert Fleming Holdings, Ltd. ("RFH"), the parent of RFI (sometimes collectively
referred to as the "Reporting Persons").
The information required by this Item for each of the Reporting Persons is
set forth in Appendix 1 hereto. The information required by this Item for each
officer, director, and partner and each controlling person, if any, of certain
Reporting Persons is set forth in Appendix 2 hereto.
The Offshore Fund has two general partners, Fleming Partners and Fleming
(Bermuda) Discovery III Limited ("Fleming Bermuda"). Fleming Bermuda is a
company organized in Bermuda. Its principal business and office address is c/o
Bank of Bermuda, Ltd., 6 Front St., Hamilton HM 11, Bermuda. Its principal
business is to serve as a general partner of the Offshore Fund.
During the last five years prior to the date of this filing, none of the
Reporting Persons or persons identified in Appendix 1 or Appendix 2 has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction ending in a judgment, decree or
final order enjoining future violations or prohibiting or mandating the
activities subject to, federal or state securities laws or finding a violation
with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On September 29, 1999, the US Fund entered into the Stock and Warrant
Purchase Agreement, dated as of September 29, 1999, between the Issuer and the
US Fund (see Exhibit 4 hereto, which is incorporated herein by reference), to
purchase, for a total purchase price of $6,464,000 (x) 64,640 shares of Series C
Convertible Preferred Stock, $0.01 par value per share ("Series C Preferred
Stock"), and (y) warrants ("US Fund Warrants") (pursuant to the Warrant
Certificate issued by the Issuer to US Fund) (see Exhibit 8 hereto, which is
8
<PAGE>
incorporated herein by reference), to purchase up to 1,616,000 shares of Common
Stock, of the Issuer. The Series C Preferred Stock is convertible into 2,154,667
shares of Common Stock. The US Fund purchased the Series C Preferred Stock and
the US Fund Warrants, which were acquired by the US Fund at the closing on
October 8, 1999, with its working capital. No part of the purchase price was or
will be represented by funds or other consideration borrowed or otherwise
obtained for the purpose of acquiring, holding, trading or voting the Common
Stock.
On September 29, 1999, the Offshore Fund entered into the Stock and
Warrant Purchase Agreement, dated as of September 29, 1999, between the Issuer
and the Offshore Fund, to purchase, for a total purchase price of $1,036,000,
(x) 10,360 shares of Series C Preferred Stock and (y) warrants ("Offshore Fund
Warrants") (pursuant to the Warrant Certificate issued by the Issuer to the
Offshore Fund), to purchase up to 259,000 shares of Common Stock (the US Fund
Warrants and the Offshore Fund Warrants collectively referred to herein as the
"Warrants"), of the Issuer. The Series C Preferred Stock is convertible into
345,333 shares of Common Stock. The Offshore Fund purchased the Series C
Preferred Stock and the Offshore Fund Warrants, which were acquired by the
Offshore Fund at closing on October 8, 1999, with its working capital. No part
of the purchase price was or will be represented by funds or other consideration
borrowed or otherwise obtained for the purpose of acquiring, holding, trading or
voting the Common Stock.
Item 4. Purpose of Transaction.
a) The Series C Preferred Stock and the Warrants deemed to be beneficially
owned by the Reporting Persons were acquired for, and are being held for,
investment purposes. The Funds may dispose of or acquire securities of the
Issuer, including Common Stock, depending upon the position of the market, the
Issuer and other factors.
Except as set forth above, none of the Reporting Persons nor, to the
best of their knowledge, any person listed in Appendix I hereto, has any plans
or proposals which relate to or would result in any other acquisition by any
person of additional securities of the Issuer, or the disposition of securities
of the Issuer.
b) None of the Reporting Persons nor, to the best of their knowledge, any
person listed in Appendix I hereto, has any plans or proposals which relate to
or would result in an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries.
c) None of the Reporting Persons nor, to the best of their knowledge, any
person listed in Appendix I hereto, has any plans or proposals which relate to
or would result in a sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries.
d) Pursuant to the Issuer's Certificate of Designations for the Series C
Convertible Preferred Stock (see Exhibit 5 hereto, which is incorporated herein
by reference), so long as either (i) the Funds, any Affiliate, officer or
employee of an Affiliate or investment fund managed by an Affiliate of the Funds
to which the Funds may transfer record or beneficial ownership of any shares of
Series C Preferred Stock or any shares of Common Stock obtained or obtainable
upon conversion of any shares of Series C Preferred Stock ("Fleming Holder") own
at least 50% of the outstanding shares of Series C Preferred Stock or (ii) any
transferee (except for a Fleming Holder) of any shares of Series C Preferred
Stock or any shares of Common Stock obtained or obtainable upon conversion of
any shares of Series C Preferred Stock ("Transferee") owns at least 50% of the
outstanding shares of Series C Preferred Stock, the holders of Series C
Preferred Stock, consenting or voting (as the case may be) as a separate class,
shall be entitled, but not required, to elect up to two (2) directors of the
Issuer. So long as either (i) the Fleming Holders own at least 25% of the
outstanding shares of Series C Preferred Stock or (ii) any Transferee owns at
least 25% of the outstanding shares of Series C Preferred Stock, the holders of
Series C Preferred Stock, consenting or voting (as the case may be) as a
separate class, shall be entitled, but not required, to elect one (1) director
of the Issuer.
Except as set forth above, none of the Reporting Persons nor, to the
best of their knowledge, any person listed in Appendix I hereto, has any plans
or proposals which relate to or would result in any other changes in the board
of directors or management of the Issuer, or which relate to or would result in:
(e) any material change in the present capitalization or divided policy of the
Issuer; (f) any other material change in the Issuer's business or corporate
structure; (g) changes in the Issuer's charter, By-Laws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person; (h) causing a class of securities of the
Issuer to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (i) a class of equity securities of the Issuer
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Exchange Act; or (j) any action similar to any of those enumerated above.
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The Reporting Persons retain the right to change their investment
intent, to propose one or more possible transactions to the Issuer's board, to
acquire additional shares of preferred stock or common stock from time to time
or to sell or otherwise dispose of all or part of the Series C Preferred Stock
beneficially owned by them (or any shares of Common Stock into which such Series
C Preferred Stock are converted) or to sell or otherwise dispose of all or part
of the Warrants beneficially owned by them (or any Shares of Common Stock into
which such Warrants are exercised) in any manner permitted by law. In the event
of a material change in the present plans or intentions of the Reporting
Persons, the Reporting Persons will amend this Schedule 13D to reflect such
change.
Item 5. Interest in Securities of the Issuer.
(a) On October 8, 1999, the US Fund purchased 64,640 shares of Series C
Preferred Stock ("US Fund Preferred Stock"). The US Fund Preferred Stock is
currently convertible into 2,154,667 shares of Common Stock ("US Fund Conversion
Shares"), subject to certain antidilution provisions. On October 8, 1999, 1999,
the US Fund purchased Warrants exercisable at $3.00 per share, subject to
certain antidilution and clawback provisions, for up to 1,616,000 shares of
Common Stock ("US Fund Warrant Shares").
On October 8, 1999, the Offshore Fund purchased 10,360 shares of Series
C Preferred Stock ("Offshore Fund Preferred Stock"). The Offshore Fund Preferred
Stock is currently convertible into 345,333 shares of Common Stock ("Offshore
Fund Conversion Shares"), subject to certain antidilution provisions. On October
8, 1999, the Offshore Fund purchased warrants exercisable at $3.00 per share,
subject to certain antidilution and clawback provisions, for up to 259,000
shares of Common Stock ("Offshore Fund Warrant Shares").
Because of their relationship as affiliated entities, both Funds may be
deemed to beneficially own the US Fund Conversion Shares, the US Fund Warrant
Shares, the Offshore Fund Conversion Shares and the Offshore Fund Warrant
Shares. As the general partner of both Funds, Fleming Partners may be deemed to
beneficially own the US Fund Conversion Shares, the US Fund Warrant Shares, the
Offshore Fund Conversion Shares and the Offshore Fund Warrant Shares. As the
general partner of Fleming Partners, Discovery may be deemed to beneficially own
the US Fund Conversion Shares, the US Fund Warrant Shares, the Offshore Fund
Conversion Shares and the Offshore Fund Warrant Shares. As investment adviser to
the Funds, controlling member of Discovery and the sole limited partner of
Fleming Partners, RFI may be deemed to beneficially own the US Fund Conversion
Shares, the US Fund Warrant Shares, the Offshore Fund Conversion Shares and the
Offshore Fund Warrant Shares. RFI is 100% owned by RFH. RFH is 100% owned by
Copthall Overseas Limited which is ultimately 100% owned by Robert Fleming
Holdings Limited. Thus, as the indirect parent of RFI, RFH may be deemed to
beneficially own the US Fund Conversion Shares, the US Fund Warrant Shares, the
Offshore Fund Conversion Shares and the Offshore Fund Warrant Shares.
Pursuant to the Offshore Fund's Limited Partnership Agreement (attached
hereto as Exhibit 2 and incorporated herein by reference), Fleming Bermuda, one
of the Offshore Fund's general partners, is responsible for the Offshore Fund's
administrative, secretarial and related management activities. Fleming Bermuda
has no authority over or responsibility for the investment management of the
Offshore Fund.
As of October 8, 1999, each of the Funds, each of Fleming Partners,
Discovery, RFI and RFH may be deemed to have owned beneficially 26.5% of the
outstanding Common Stock, on an aggregated basis, which percentage is calculated
based upon (i) 12,122,402 shares of Common Stock reported outstanding by the
Issuer to the Reporting Persons as of October 8, 1999, (ii) the number of shares
of Common Stock (2,500,000) issuable upon conversion of the US Fund Preferred
Stock and Offshore Fund Preferred Stock and (iii) the number of shares of Common
Stock (1,875,000) issuable upon exercise of the Warrants.
The percentage is calculated by dividing 4,375,000 (which is the sum of
2,500,000 and 1,875,000) by 16,497,402 (which is the sum of 2,500,000, 1,875,000
and 12,122,402).
(b) The information required by this paragraph is reflected on Lines 7-10 of
each Reporting Person's cover page, incorporated herein by reference. The
information required by Items 2 of this Schedule for Fleming US Discovery
Investment Trust and Fleming US Discovery Fund is set forth in Appendix 1 and
Appendix 2 hereto.
(c) None of the Reporting Persons has effected any transactions in the Common
Stock during the last 60 days.
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(d) No other person is known to have the right to receive or the power to direct
the receipt of dividends from, or any proceeds from the sale of, the shares of
Common Stock beneficially owned by any of the Reporting Persons.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
the Securities of the Issuer.
The Funds acquired their respective shares of Series C Preferred Stock
as of October 8, 1999 pursuant to the Stock and Warrant Purchase Agreements,
dated as of September 29, 1999, and executed by the Funds and the Issuer.
The Funds acquired their respective Warrants pursuant to their
respective Warrant Certificates, dated October 8, 1999, and executed by the
Issuer. The Warrant Certificates contain certain antidilution and clawback
provisions.
A Stockholders Agreement, dated as of October 8, 1999 (attached hereto
as Exhibit 6 and incorporated herein by reference), was entered by the Issuer,
Arne Van Roon, Robin Carden (together with Van Roon referred to as "Management
Stockholders") and each of the Funds. The Stockholders' Agreement provides that
in the even a Management Stockholder proposes to transfer his shares
("Transferor Shares") to any Person ("Buyer"), as a condition to such Transfer,
the Management Stockholder shall cause the Buyer to offer to purchase from each
Fund up to that number of Series C Preferred Stock and Common Stock owned by an
Fleming Holder or any Transferee ("Investor Shares") representing the same
percentage of all Investor Shares owned by it as the Transferor Shares are of
all Management Shares, subject to certain exceptions. These "Tag-Along" rights
are more fully set forth in Section 1 of the Stockholders' Agreement.
Pursuant to the Registration Rights Agreement, dated October 8, 1999
(attached hereto as Exhibit 7 and incorporated herein by reference), the Issuer
has granted to the Fleming Holders and their permitted transferees certain
demand and "piggyback" registration rights with respect to the shares of Common
Stock (including Common Stock issuable upon the conversion of Series C Preferred
Stock) held by such stockholders.
Pursuant to the Certificate of Designations of the Series C Preferred
Stock, filed with the Secretary of State of Delaware on October 4, 1999 (see
Exhibit 5 hereto, which is incorporated herein by reference), the Fleming
Holders currently are entitled to one vote per share of Common Stock into which
each share of Series C Preferred Stock is convertible. The Fleming Holders are
entitled to receive dividends in an amount equal to the equivalent per share
dividend declared on the Common Stock, when and as declared by the Board of
Directors. In addition, under the Certificate of Designations of the Series C
Preferred Stock, the Fleming Holders are entitle to elect certain members of the
Issuer's Board of Directors, as more fully set forth in Item 5 herein and
Section 4( C) of the Certificate of Designations of Series C Preferred Stock.
In the Limited Partnership Agreements of the US Fund and the Offshore
Fund, each dated as of September 27, 1996 (attached hereto as Exhibits 3 and 2,
and are incorporated herein by reference), the Funds and their respective
limited partners agreed that (i) all investment opportunities would be
apportioned between the Funds in proportion to the relative amounts of capital
committed to each Fund and (ii) the Funds would sell or otherwise dispose of
their investments at substantially the same time, on substantially the same
terms, in amounts proportionate to the relative size of their investments.
The foregoing response to this Item 6 is qualified in its entirety by
reference to the Stock and Warrant Purchase Agreements, the Stockholders'
Agreement, the Certificate of Designations, the Registration Rights Agreement
and the Warrant Certificates.
Except as set forth in this Item 6 and Items 3, 4, and 5 of this
statement, there are no contracts, arrangements, understandings or relationships
among the persons named in Item 2 or between such persons and any other person
with respect to any securities of the Issuer.
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Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Joint Filing Agreement.
Exhibit 2 - Limited Partnership Agreement of Fleming Discovery Offshore
Fund III, L.P. (incorporated by reference to Exhibit 3 to
the Schedule 13D of Robert Fleming, Inc. with respect to
the securities of Anicom, Inc. filed on July 29, 1997).
Exhibit 3 - Limited Partnership Agreement of Fleming US Discovery Fund
III, L.P. (incorporated by reference to Exhibit 6 to the
Schedule 13D of Robert Fleming, Inc. with respect to the
securities of Anicom, Inc. filed on July 29, 1997).
Exhibit 4 - Stock and Warrant Purchase Agreement, dated as of
September 29, 1999, between Alyn Corporation and Fleming US
Discovery Fund III, L.P. (incorporated by reference to the
same document included as Exhibit 4.1 to Form 8-K filed by
the Issuer on October 4, 1999, under SEC File No.
000-21153).
Exhibit 5 - Certificate of Designations of Series C Convertible
Preferred Stock of Alyn Corporation filed with the
Secretary of State of Delaware on October 4, 1999
(incorporated by reference to the same document included as
Exhibit 4.2 to Form 8-K filed by the Issuer on October 4,
1999, under SEC File No. 000-21153).
Exhibit 6 - Stockholders' Agreement, dated as of October 8, 1999, among
Alyn Corporation, Arne Van Roon, Robin Carden, Fleming US
Discovery Fund III, L.P. and Fleming US Discovery Offshore
Fund III, L.P.
Exhibit 7 - Registration Rights Agreement, dated as of October 8, 1999
among Alyn Corporation, Fleming US Discovery Fund III, L.P.
and Fleming US Discovery Offshore Fund III, L.P.
Exhibit 8 - Warrant Certificate, dated October 8, 1999 between Alyn
Corporation and Fleming US Discovery Fund III, L.P.
(incorporated by reference to the same document included as
Exhibit 4.3 to Form 8-K filed by the Issuer on October 4,
1999, under SEC File No. 000-21153).
Exhibit 99 - Press Release issued by the Issuer on October 1,
1999 (incorporated by reference to the same document
included as Exhibit 99 to Form 8-K filed by the
Issuer on October 4, 1999, under SEC File No.
000-21153).
Appendix 1- Address, Organization and Principal Business of Each
Reporting Person Required by Item 2
Appendix 2- Information About Each Reporting Person Required by Item 2
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.*
October 18, 1999
FLEMING US DISCOVERY FUND III, L.P.
By: Fleming US Discovery Partners, L.P.,
its general partner
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
------------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: Fleming US Discovery Partners, L.P.,
its general partner
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
--------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY PARTNERS, L.P.
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
----------------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY, LLC
By: /s/ Robert L. Burr
----------------------------------
Robert L. Burr, Director
ROBERT FLEMING, INC.
By: /s/ Arthur A. Levy
----------------------------------
Arthur A. Levy, Director
ROBERT FLEMING HOLDINGS, LTD.
By: /s/ Arthur A. Levy
----------------------------------
Arthur A. Levy, Director
13
<PAGE>
Exhibit 1
JOINT FILING AGREEMENT
Pursuant to and in accordance with Rule 13d-1(k)(1) under the Securities
Exchange Act of 1934, the undersigned hereby agree to jointly file the Schedule
13D dated October 18, 1999 and any amendments thereto with respect to the
beneficial ownership by each of the undersigned of shares of common stock of
Alyn Corporation. Such joint filings may be executed by one or more of us on
behalf of each of the undersigned.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
Executed this day of October 18, 1999.
FLEMING US DISCOVERY FUND III, L.P.
By: Fleming US Discovery Partners, L.P.,
its general partner
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
------------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: Fleming US Discovery Partners, L.P.,
its general partner
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
--------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY PARTNERS, L.P.
By: Fleming US Discovery, LLC, its
general partner
By: /s/ Robert L. Burr
----------------------------------
Robert L. Burr, Director
FLEMING US DISCOVERY, LLC
By: /s/ Robert L. Burr
----------------------------------
Robert L. Burr, Director
Exhibit 1
ROBERT FLEMING, INC.
By: /s/ Arthur A. Levy
----------------------------------
Arthur A. Levy, Director
ROBERT FLEMING HOLDINGS, LTD.
By: /s/ Arthur A. Levy
----------------------------------
Arthur A. Levy, Director
14
<PAGE>
APPENDIX 1
ADDRESS, ORGANIZATION AND PRINCIPAL BUSINESS OF EACH REPORTING PERSON REQUIRED
BY ITEM 2 AND OTHER PERSONS REQUIRED BY ITEM 5
<TABLE>
<CAPTION>
PRINCIPAL BUSINESS PLACE OF
REPORTING PERSON AND OFFICE ADDRESS ORGANIZATION PRINCIPAL BUSINESS
<S> <C> <C> <C>
Fleming US Discovery Fund 320 Park Avenue, Delaware limited partnership to invest in securities with a
III, L.P. 11th Floor view to long-term capital
("US Fund") New York, NY 10022 appreciation
Fleming US Discovery c/o Bank of Bermuda, Bermuda limited partnership to invest in securities with a
Offshore Fund III, L.P. Ltd, view to long-term capital
("Offshore Fund," with US 6 Front St appreciation
Funds the "Funds") Hamilton HM 11 Bermuda
Fleming US Discovery 320 Park Avenue, Delaware limited partnership to act as the general partner
Partners, L.P. 11th Floor of the Funds
("Fleming Partners") New York, NY 10022
Fleming US Discovery, LLC 320 Park Avenue, Delaware limited liability to act as the sole general
11th Floor company partner of Fleming Partners
New York, NY 10022
Robert Fleming, Inc. 320 Park Avenue, Delaware corporation a registered investment
11th Floor adviser and broker-dealer
New York, NY 10022
Robert Fleming Holdings, 25 Copthall Avenue United Kingdom company to provide international
Ltd. London EC2B 7PQ, investment banking, asset
England management and securities
brokerage services to its clients
OTHER
Fleming US Discovery 25 Copthall Avenue
Investment Trust London EC2B 7PQ,
England
Fleming US Discovery 320 Park Avenue,
Fund 11th Floor
New York, NY 10022
</TABLE>
15
<PAGE>
Appendix 2
INFORMATION ABOUT REPORTING PERSONS
REQUIRED BY ITEM 2
MANAGERS AND COMMITTEES OF FLEMING US DISCOVERY, LLC
MANAGERS
Robert Fleming, Inc.
Robert L. Burr
Christopher M.V. Jones*
Eytan M. Shapiro*
Timothy R.V. Parton*
EXECUTIVE COMMITTEE
Arthur A. Levy
Iain O.S. Saunders
Jonathan K.L. Simon
Robert L. Burr
Christopher M.V. Jones
INVESTMENT COMMITTEE
Robert L. Burr
Christopher M.V. Jones
Eytan M. Shapiro
Timothy R.V. Parton
* Eytan M. Shapiro, Christopher M.V. Jones and Timothy R.V. Parton are -United
Kingdom citizens. Robert L. Burr is a United States citizen. Their business
address is 320 Park Avenue, 11th Floor, New York, New York 10022. The
citizenship and business address, for each of the remaining persons listed above
is contained in "Executive Officers and Directors of Robert Fleming, Inc."
16
<PAGE>
EXECUTIVE OFFICERS AND DIRECTORS OF ROBERT FLEMING, INC.
Name: Lord Robin Renwick
Citizenship: United Kingdom
Business Address: Robert Fleming & Co.
25 Copthall Avenue
London EC2R-7DR, England
Title: Chairman of the Board
Name: Arthur A. Levy
Citizenship: United States
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: President, Vice Chairman and Director
Name: Christopher M.V. Jones
Citizenship: United Kingdom
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Director
Name: Larry A. Kimmel
Citizenship: United States
Business Address: Robert Fleming,Inc.
320 Park Avenue
New York, NY 10022
Title: Vice President and Director of Compliance
Name: Iain O.S. Saunders
Citizenship: United Kingdom
Business Address: Robert Fleming & Co.
25 Copthall Avenue
London EC2R-7DR, England
Title: Director
Name: Jonathan K.L. Simon
Citizenship: United Kingdom
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Director
Name: Andrea M. Whitmore
Citizenship: United States
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Chief Financial Officer and Vice President
17
<PAGE>
Name: Mark Mattheys
Citizenship: United States
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Director and Chief Operating Officer
Name: Charlie Bridge
Citizenship: United States
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Director
Name: Eduardo Canet
Citizenship: United States
Business Address: Robert Fleming, Inc.
320 Park Avenue
New York, NY 10022
Title: Director
18
<PAGE>
OFFICERS AND DIRECTORS OF ROBERT FLEMING HOLDINGS, LTD.
BOARD OF DIRECTORS* CITIZENSHIP
John Manser CBE United Kingdom
Chairman
William Garrett United Kingdom
Group Chief Executive
Phillip Wichelow United Kingdom
Iain O.S. Saunders United Kingdom
John Emly United Kingdom
Paul Bateman United Kingdom
Tom Hughes-Hallett United Kingdom
Michael Baines United Kingdom
David Boardman United Kingdom
Robin Fleming United Kingdom
Ken Inglis United Kingdom
Arthur A. Levy United States
Bernard Taylor United Kingdom
Sir Robin Renwick KCMG United Kingdom
John Archibald United Kingdom
Peter Barton United Kingdom
Ian Hannam United Kingdom
*With the exception of Arthur A. Levy, the business address for each of the
above persons is 25 Copthall Avenue, London EC2R- 77DR, England. The titles
below the first four names refer to officer titles.
19
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is dated as of October 8,
1999, among Alyn Corporation, a Delaware corporation (the "Company"), Fleming US
Discovery Fund III, L.P. and Fleming US Discovery Offshore Fund III, L.P.
(collectively, the "Fleming Funds"). The Fleming Funds, any Fleming Holder and
any Transferee are collectively referred to herein as the "Investors" and,
individually, an "Investor." Capitalized terms used and not otherwise defined
herein have the respective meanings ascribed thereto in Article X.
W I T N E S S E T H:
WHEREAS, simultaneously herewith, the Fleming Funds have
purchased an aggregate of 75,000 shares of Series C Convertible Preferred Stock
pursuant to the terms of the Stock and Warrant Purchase Agreements;
WHEREAS, it is a condition to the consummation of the
transactions contemplated by the Stock and Warrant Purchase Agreements that the
Company and the Fleming Funds enter into this Agreement whereby the Company
shall grant, and the Investors shall obtain, the rights relating to the
registration of the Registrable Securities under the Securities Act, as set
forth in this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEMAND REGISTRATIONS
--------------------
I.1 REQUESTS FOR REGISTRATION. (a) Subject to Section 1.2, at
any time and from time to time on or after the date hereof, the Fleming Holders
and any Transferee may request registration under the Securities Act of all or
part of their Registrable Securities which registration shall be filed on Form
S-1 or any similar long-form registration available to the Company ("LONG-FORM
DEMAND REGISTRATION"). Thereafter, the Company will use its best efforts to
promptly effect the registration of such Registrable Securities under the
Securities Act on such long form requested by the holder or holders making such
registration request. The registration requested pursuant to this Section 1.1 is
referred to herein as a "DEMAND REGISTRATION." Upon receipt of a request for a
Demand Registration, the Company will give prompt written notice (in any event
within three (3) Business Days after its receipt of such request) of the request
for a Demand Registration to all holders of Registrable Securities not making
such request and will include in such Demand Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten (10) days after the receipt of the Company's
notice. The holders of the Registrable Securities making any such registration
request may, at any time prior to the effective date of the registration
statement relating to any Demand Registration, revoke such Demand Registration
request by providing written notice to the Company.
1
<PAGE>
(b) No later than sixty (60) days after the Closing Date, the
Company shall prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a "SHELF
REGISTRATION") registering the resale from time to time by the Investors of all
the Registrable Securities (the "INITIAL SHELF REGISTRATION"). The registration
statement shall be on Form S-3 or another appropriate form, at the Company's
discretion, permitting registration of such Registrable Securities for resale by
the Investors. If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time, the Company
shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within forty-five
(45) days of such cessation of effectiveness amend the Shelf Registration in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or to promptly file an additional Shelf Registration
covering all the Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION").
I.2 LIMITATIONS ON DEMAND REGISTRATIONS. The holders of the
Registrable Securities, as a group, shall be entitled to (i) one (1) Demand
Registration and (ii) any number of Shelf Registrations.
I.3 EFFECTIVE REGISTRATION STATEMENT. (a) A Demand
Registration requested pursuant to Section 1.1 of this Agreement shall not be
deemed to have been effected (i) unless a registration statement with respect
thereto has become effective, (ii) if after it has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason, and
the Registrable Securities covered thereby have not been sold, or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied by
reason of (x) a failure by or inability of the Company to satisfy any thereof,
or (y) the occurrence of an event outside the control of the holders of
Registrable Securities.
(b) A Demand Registration requested pursuant to Section 1.1(a)
of this Agreement shall not be deemed to have been effected if holders of
Registrable Securities are not able to register and sell at least 80% of the
amount of Registrable Securities requested to be included in such registration.
-2-
<PAGE>
I.4 PRIORITY ON DEMAND REGISTRATIONS. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the written consent of the Fleming Holders. If other
securities are permitted to be included in a Demand Registration which is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities exceeds the
number of Registrable Securities which can be sold in such offering within a
price range acceptable to the Fleming Holders, the Company will include in such
registration prior to the inclusion of any securities which are not Registrable
Securities the number of Registrable Securities requested to be included which
in the opinion of such underwriters can be sold within a price range acceptable
to the Fleming Holders, pro rata among the respective holders on the basis of
the amount of Registrable Securities requested to be offered thereby.
I.5 SELECTION OF UNDERWRITERS. The Fleming Holders will have
the right to select the underwriters and the managing underwriters to administer
a Demand Registration, provided that such underwriters and managing underwriters
shall be reasonably acceptable to the Company.
I.6 OTHER REGISTRATION RIGHTS. Except as otherwise provided in
this Agreement, the Company may grant to any Person the right to request the
Company to register any equity securities of the Company, or any securities
convertible, exchangeable or exercisable for or into such securities ("Other
Securities"); provided, however, that all such registration rights shall be
subordinate in all respects to the registration rights held by the holders of
the Registrable Securities.
ARTICLE II
OTHER REGISTRATIONS
-------------------
II.1 RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration), and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice (in any event within three (3) Business Days
after its receipt of notice of any exercise of other demand registration rights)
to all holders of Registrable Securities of its intention to effect such a
registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within ten (10) days after the receipt of the Company's notice.
II.2 PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering at a price range which is
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities and the shares of Common Stock issuable upon exchange of the
Exchangable Notes (the "Exchangeable Notes Shares") requested to be included in
such registration and (iii) third, other securities requested to be included in
such registration.
-3-
<PAGE>
II.3 PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering at a
price acceptable to the holders of the Company's securities, the Company will
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second, the
Registrable Securities and the Exchangeable Notes Shares requested to be
included in such registration, and (iii) third, other securities requested to be
included in such registration. The Company hereby agrees that whenever it grants
piggyback rights to any holder of its securities such holder's piggyback rights
will be expressly subordinated to the piggyback rights granted to the holders of
the Registrable Securities under this Article II.
II.4 OTHER REGISTRATIONS. If the Company has previously filed
a registration statement for a Long-Form Demand Registration with respect to
Registrable Securities pursuant to Article I of this Agreement or pursuant to
this Article II, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible,
exchangeable or exercisable for or into its equity securities under the
Securities Act (except on Form S-4 or S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities other
than the holders of the Registrable Securities, until a period of at least six
(6) months elapsed from the effective date of such previous registration.
ARTICLE III
REGISTRATION PROCEDURES
-----------------------
Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered pursuant to this Agreement, the
Company will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
registration thereof, and pursuant thereto the Company will as expeditiously as
possible or, in the case of clause (q) below, will not:
-4-
<PAGE>
(a) promptly prepare and file with the SEC a registration
statement with respect to such Registrable Securities (such registration
statement to include all information which the holders of the Registrable
Securities to be registered thereby shall reasonably request) and use its best
efforts to promptly cause such registration statement to become effective,
provided that at least five days before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will (i)
furnish to counsel selected by the Fleming Holders, copies of all such documents
proposed to be filed, and the Company shall not , in the case of a Demand
Registration, file any such documents to which such counsel shall have objected
on the grounds that such document does not comply in all material respects with
the requirements of the Securities Act or of the rules or regulations
thereunder, and (ii) notify each holder of Registrable Securities covered by
such registration statement of (x) any request by the SEC to amend such
registration statement or amend or supplement any prospectus or (y) any stop
order issued or threatened by the SEC, and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered;
(b) (i) promptly prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary (A) in the case of a Long-Form Demand
Registration, to keep such registration statement effective for a period of not
less than 180 days (except that such 180-day period shall be (I) shortened to
the extent that all shares are sold thereunder, or (II) extended (x) by the
length of any period that a stop order or similar proceeding is in effect which
prohibits the distribution of the Registrable Securities, and (y) by the number
of days during the period from and including the date on which each seller of
Registrable Securities shall have received a notice delivered pursuant to clause
(f) below until the date when such seller shall have received a copy of the
supplemented or amended prospectus contemplated by clause (f) below), and (B) in
the case of a Shelf Registration, keep such registration statement continually
effective, (ii) comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) as soon as reasonably possible furnish to each seller of
Registrable Securities, without charge, such number of conformed copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus
and prospectus supplement and, in each case, including all exhibits) and such
other documents as such seller may reasonably request, all in conformity with
the requirements of the Securities Act, in order to facilitate the disposition
of the Registrable Securities owned by such seller;
(d) use its reasonable best efforts promptly to register or
qualify the Shares under such other securities or blue sky laws of such
jurisdictions as any seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect and to do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, provided, however, that the Company will not be required to (i) qualify
generally to do business as a foreign corporation in any jurisdiction where it
would not otherwise be required to qualify but for this clause (d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general service
of process in any such jurisdiction;
-5-
<PAGE>
(e) furnish to each seller of Registrable Securities a signed
copy, addressed to such seller (and the underwriters, if any) of an opinion of
counsel for the Company or special counsel to the selling stockholders, dated
the effective date of such registration statement (and, if such registration
statement includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form and
substance to counsel selected by the Fleming Holders, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of issuer's counsel
delivered to the underwriters in underwritten public offerings, and such other
legal matters as the seller (or the underwriters, if any) may reasonably
request;
(f) promptly notify each seller of Registrable Securities, at
a time when a prospectus relating to the Shares is required to be delivered
under the Securities Act, of the Company's becoming aware that the prospectus
included in such registration statement, as then in effect, contains an untrue
statement of a material fact or omits to state any 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, and, at the request of
any such seller, promptly prepare and furnish such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made;
(g) cause all of the Shares to be listed or quoted, and to
continue to be listed or quoted on the American Stock Exchange, other national
securities exchange, the Nasdaq National Market or the Nasdaq Small-Cap Market,
on which the Common Stock of the Company is then listed, if the listing of such
Shares is then permitted under the rules of such exchange or The NASDAQ Stock
Market;
(h) provide a transfer agent and registrar for all of the
Shares not later than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such
other actions as the Fleming Holders or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of the Shares;
-6-
<PAGE>
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement, in each case
pursuant to confidentiality agreements reasonably acceptable to the Company, as
appropriate;
(k) cause the Company's officers to make presentations to
potential purchasers of the Shares, as reasonably requested by any seller of
Registrable Securities or any underwriter participating in any disposition
pursuant to such registration statement;
(l) subject to other provisions hereof, use its best efforts
to cause the Shares to be registered with or approved by such other governmental
agencies or authorities or self-regulatory organizations as may be necessary to
enable the sellers thereof to consummate the disposition of the Shares;
(m) use its reasonable best efforts to obtain a "comfort"
letter, dated the effective date of such registration statement (and, if such
registration includes an underwritten offering, dated the date of the closing
under the underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements, addressed to each seller,
and to the underwriters, if any, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(n) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its security
holders, in each case as soon as practicable, an earning statement covering a
period of at least twelve months, beginning after the effective date of the
registration statement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(o) permit any holder of Registrable Securities, which holder,
in the sole judgment exercised in good faith of such holder, might be deemed to
be a controlling person of the Company (within the meaning of the Securities Act
or the Exchange Act), to participate in the preparation of any registration
statement covering such holder's Registrable Securities and to include therein
material, furnished to the Company in writing, which in the reasonable judgment
of such holder should be included and which is reasonably acceptable to the
Company;
(p) use every reasonable effort to obtain the lifting at the
earliest possible time of any stop order suspending the effectiveness of any
registration statement or of any order preventing or suspending the use of any
preliminary prospectus;
-7-
<PAGE>
(q) at any time file or make any amendment to a registration
statement, or any amendment of or supplement to a prospectus (including
amendments of the documents incorporated by reference into the prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to which the sellers of
Registrable Securities, the managing underwriters, or counsel for such sellers
or for the underwriters shall reasonably object; and
(r) make such representations and warranties (subject to
appropriate disclosure schedule exceptions) to sellers of Registrable Securities
and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters and selling holders, as the case may be, in
underwritten public offerings of substantially the same type.
ARTICLE IV
REGISTRATION EXPENSES
---------------------
IV.1 COMPANY'S FEES AND EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation, all registration and filing fees, fees and expenses incident to the
Company's or the Investors' performance of or compliance with a Shelf
Registration pursuant to this Agreement and to the Stock and Warrant Purchase
Agreements (whether or not any of the registration statements become effective),
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, fees and expenses for listing or
quoting the Shares on each securities exchange or The NASDAQ Stock Market on
which similar securities issued by the Company are then listed or quoted, and
fees and disbursements of counsel for the Company, any transfer agent and all
independent certified public accountants, underwriters (excluding discounts and
selling commissions) and other Persons retained by the Company in connection
with any Demand Registration or any Piggyback Registration (all such expenses
being herein called "Registration Expenses"), will be paid by the Company.
IV.2 FEES OF COUNSEL TO HOLDERS. In connection with any Demand
Registration or any Shelf Registration hereunder, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the Fleming Holders.
In connection with any Piggyback Registration, the holders of Registrable
Securities covered by such registration shall pay for the fees of their own
counsel, if applicable, but such holders shall not be obligated to pay any
portion of the fees of counsel acting on behalf of any other holder or all
holders of securities included in such registration.
-8-
<PAGE>
ARTICLE V
UNDERWRITTEN OFFERINGS
----------------------
V.1 DEMAND UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offerings of Registrable Securities pursuant
to a Demand Registration, the Company will enter into an underwriting agreement
with such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, the Fleming Holders and the
underwriters, and to contain such representations and warranties by the Company
and such other terms as are generally included in agreements of this type,
including, without limitation, indemnities customarily included in such
agreements. The holders of Registrable Securities to be distributed by such
underwriters may be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. The
Company shall cooperate with any such holder of Registrable Securities in order
to limit, to the extent within the Company's control, any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
V.2 INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by Article II of this Agreement and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any holder of Registrable Securities as provided in Article II of
this Agreement, arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder, subject to the limitations set
forth in Article II hereof, among the securities to be distributed by such
underwriters. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters, and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
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ARTICLE VI
INDEMNIFICATION
---------------
VI.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the extent permitted by law, each of the holders
of any Registrable Securities covered by any registration statement prepared
pursuant to this Agreement, each other Person, if any, who controls such holder
within the meaning of the Securities Act or the Exchange Act, and each of their
respective directors, general partners and officers, as follows:
(i) against any and all loss, liability, claim,
damage and expense arising out of or based upon an untrue
statement or alleged untrue statement of a material fact
contained in any registration statement (or any amendment or
supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or
prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense to the extent of the aggregate amount paid
in settlement of any litigation, investigation or proceeding
by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or omission or any such alleged untrue statement or
omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense incurred by them in
connection with investigating, preparing or defending against
any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under clause (i)
or (ii) above;
PROVIDED, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or any
amendment or supplement thereto); and PROVIDED FURTHER, that the Company will
not be liable to any holder under the indemnity agreement in this Section 6.1,
with respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, liability, claim, damage or expense of such controlling Person or
holder results from the fact that such holder sold Registrable Securities to a
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Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously and timely furnished copies thereof to such holder and
provided further, that the Company will not be liable to any holder under the
indemnity agreement in this Section 6.1, with respect to a sale by such holder
after such time as the Company, upon the written advice of counsel to the
Company, a copy of which shall be provided to the Fleming Holders, provides
notice that a registration statement requires an amendment or supplement and has
requested in writing that such holder cease to sell under such registration
statement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such holder or any such director,
officer, general partner, or other controlling person and shall survive the
transfer of such securities by such seller.
VI.2 INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder agrees to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 6.1 of this
Agreement), to the extent permitted by law, the Company and its directors,
officers and controlling Persons, and their respective directors, officers and
general partners, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such holder, specifically stating that it is
for use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company, or such holder, as the case may be, or any of their respective
directors, officers, controlling Persons or general partners and shall survive
the transfer of such securities by such holder. The obligations of each holder
of Registrable Securities pursuant to this Section 6.2 are to be several and not
joint; provided, that, with respect to each claim pursuant to this Section 6.2,
each such holder's maximum liability under this Section shall be limited to an
amount equal to the net proceeds actually received by such holder (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such holder.
VI.3 INDEMNIFICATION PROCEDURES. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding involving a claim referred to in Section 6.1 or Section 6.2 of
this Agreement, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 6.1 or Section 6.2 of this Agreement except to the
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extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, 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 the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, in which case the
indemnifying party shall not be liable for the fees and expenses of (i) more
than one counsel for all holders of Registrable Securities, selected by the
Fleming Holders, or (ii) more than one counsel for the Company in connection
with any one action or separate but similar or related actions. An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and expenses of
such additional counsel or counsels. The indemnifying party will not, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not such indemnified party or any Person who controls such
indemnified party is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability arising out of such claim, action, suit or
proceeding. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
VI.4 INDEMNIFICATION OF UNDERWRITERS. The Company and each
holder of Registrable Securities requesting registration shall provide for the
foregoing indemnity in any underwriting agreement with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority other than the Securities Act.
VI.5 CONTRIBUTION. If the indemnification provided for in
Sections 6.1 and 6.2 of this Agreement is unavailable or insufficient to hold
harmless an indemnified party under such Sections, then each indemnifying party
shall contribute to the amount paid or payable to such indemnified party as a
result of the losses, claims, damages or liabilities referred to in Section 6.1
or Section 6.2 of this Agreement in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand, and the
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indemnified party on the other, in connection with statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations, including, without limitation, the
relative benefits received by each party from the offering of the securities
covered by such registration statement, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or omission.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statements or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 6.5
were to be determined by pro rata or per capita allocation (even if the
underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this Section 6.5. The amount paid to an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 6.5 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim (which shall be
limited as provided in Section 6.3 of this Agreement if the indemnifying party
has assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this Section 6.5. Promptly after receipt by an
indemnified party under this Section 6.5 of notice of the commencement of any
action against such party in respect of which a claim for contribution may be
made against an indemnifying party under this Section 6.5, such indemnified
party shall notify the indemnifying party in writing of the commencement thereof
if the notice specified in Section 6.3 of this Agreement has not been given with
respect to such action; provided, that the omission to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may otherwise have to any indemnified party under this Section 6.5,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. The Company and each holder of Registrable Securities
agrees with each other and the underwriters of the Registrable Securities, if
requested by such underwriters, that (i) the underwriters' portion of such
contribution shall not exceed the underwriting discount and (ii) the amount of
such contribution shall not exceed an amount equal to the net proceeds actually
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the losses, liabilities, claims, damages or expenses of
the indemnified parties relate. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
VI.6 TIMING OF INDEMNIFICATION PAYMENTS. The indemnification
required by this Article VI shall be made (i) by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expenses are incurred, and (ii) upon determination of liability by a
court of competent jurisdiction whether or not such judgment is appealed, with
respect to loss, damage or liability; provided however that, upon a final
judgment not subject to appeal, to the effect that such indemnification is
without merit or is otherwise not required to be paid by the Company, then the
periodic payments made by the Company pursuant to this Section 6.6 shall be
promptly refunded within thirty (30) days of notice of such final judgment.
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ARTICLE VII
RULE 144
--------
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information), and it will
take such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemption provided by (i) Rule 144 or Rule 144A
under the Securities Act, as such Rules may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
ARTICLE VIII
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
-------------------------------------------
No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements and consistent with the provisions of this Agreement.
ARTICLE IX
MERGERS, ETC.
-------------
The Company shall not, directly or indirectly, enter into any
merger, consolidation, or reorganization in which the Company shall not be the
surviving corporation unless the proposed surviving corporation shall, prior to
such merger, consolidation, or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Securities" shall be deemed to be references to the
securities that the Investors or the holders of Registrable Securities would be
entitled to receive in exchange for Registrable Securities under any such
merger, consolidation, or reorganization.
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ARTICLE X
DEFINITIONS
-----------
As used in this Agreement, the following defined terms shall
have the meanings set forth below:
"BUSINESS DAY" means a day other than Saturday, Sunday or any
day on which banks in the State of New York are authorized or obligated to
close.
"COMMON STOCk" means the Company's Common Stock, par value
$.01 per share.
"DEMAND REGISTRATION" shall have the meaning set forth in
Section 1.1(a) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FLEMING FUNDS" shall have the meaning set forth in the first
paragraph hereof.
"FLEMING HOLDERS" shall have the meaning given it in Section 3
of the Stock and Warrant Purchase Agreements.
"INITIAL SHELF REGISTRATION" shall have the meaning set forth
in Section 1.1(b) hereof.
"INVESTOR" OR "INVESTORS" shall have the meaning set forth in
the first paragraph hereof.
"LONG-FORM DEMAND REGISTRATION" shall have the meaning set
forth in Section 1.1(a) hereof.
"OTHER SECURITIES" shall have the meaning set forth in Section
1.6 hereof.
"PERSON" means any individual, corporation, partnership,
association, trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"REGISTRABLE SECURITIES" means (i) any shares of Common Stock
issued or issuable upon conversion of the Series C Preferred or exercise of the
Warrants purchased by the Fleming Funds pursuant to the Stock and Warrant
Purchase Agreements and (ii) any securities issued or issuable with respect to
the Common Stock referred to in clause (i) by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, such securities will cease to be Registrable Securities
when they have (x) been effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them or (y)
been transferred pursuant to Rule 144 (or any similar rule then in force) under
the Securities Act.
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"SEC" shall have the meaning set forth in Section 1.1(b)
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"SERIES C PREFERRED" means the Company's Series C Convertible
Preferred Stock, par value $.01 per share, which Series C Preferred is
convertible into shares of Common Stock.
"SHARES" means the shares of Registrable Securities registered
on the registration statement filed with the SEC in connection with any Demand
Registration or any Piggyback Registration.
"SHELF REGISTRATION" shall have the meaning set forth in
Section 1.1(b) hereof.
"STOCK AND WARRANT PURCHASE AGREEMENTS" means, collectively,
the separate Stock and Warrant Purchase Agreements, dated as of September 29,
1999, between the Company and each of the Fleming Funds.
"SUBSEQUENT SHELF REGISTRATION" shall have the meaning set
forth in Section 1.1(b) hereof.
"TRANSFEREES" shall have the meaning given it in Section 3 of
the Stock and Warrant Purchase Agreements.
"WARRANTS" shall mean Warrants to purchase shares of Common
Stock as more fully set forth in the Stock and Warrant Purchase Agreements.
ARTICLE XI
MISCELLANEOUS
-------------
XI.1 NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities in
this Agreement.
XI.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not effect or permit to occur any combination, subdivision or
reclassification of any of its securities which would adversely affect the
ability of the holders of Registrable Securities to include Registrable
Securities in a registration undertaken pursuant to this Agreement or which, to
the extent within its control, would adversely affect the marketability of such
Registrable Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares).
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XI.3 REMEDIES. In the event of a breach by any party to this
Agreement of its obligations under this Agreement, any party injured by such
breach, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties that
the remedy at law, including monetary damages, for breach of any such provision
will be inadequate compensation for any loss and that any defense in any action
for specific performance that a remedy at law would be adequate is waived.
XI.4 AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
will be effective against the Company or any holder of Registrable Securities,
unless such modification, amendment or waiver is approved in writing by the
Company and the Fleming Holders. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a waiver of such
provisions and will not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
XI.5 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of the
Investors or the holders of Registrable Securities are also for the benefit of,
and enforceable by, any subsequent holder of Registrable Securities.
XI.6 NOTICES. Subject to Section 11.6(b) hereof, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission or sent by nationally recognized overnight courier service to the
parties at the following addresses or facsimile numbers:
(i) If to an Investor or a holder of Registrable
Securities, to:
Fleming Capital Management
320 Park Avenue
NY, NY 10022
Facsimile No.: 212-508-3928
Attn: Robert L. Burr
David J. Edwards
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with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Facsimile No.: (212) 309-6273
Attn: David W. Pollak, Esq.
(ii) If to the Company, to:
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92606
Facsimile No.: (949) 475-2359
Attn: Secretary
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038-4892
Facsimile No.: (212) 504-6666
Attn: Gerald A. Eppner, Esq.
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 11.6(a), be deemed given
upon delivery, (y) if delivered by facsimile transmission to the facsimile
number as provided in this Section 11.6(a), be deemed given upon receipt and (z)
if delivered by nationally recognized overnight courier service in the manner
described above to the address as provided in this Section 11.6(a), be deemed
given on the Business Day following the day it was sent (in each case regardless
of whether such notice, request or other communication is received by any other
Person to whom a copy of such notice is to be delivered pursuant to this Section
11.6(a)). Any party may from time to time change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
XI.7 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
XI.8 GENDER. Whenever the pronouns "he" or "his" are used
herein they shall also be deemed to mean "she" or "hers" or "it" or "its"
whenever applicable. Words in the singular shall be read and construed as though
in the plural and words in the plural shall be construed as though in the
singular in all cases where they would so apply.
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XI.9 INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully severable, (ii) this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
XI.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
XI.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
ALYN CORPORATION
By:____________________________________
Name: Arne van Roon
Title: Chief Executive Officer
By:____________________________________
Name: Richard L. Little
Title: Chief Financial Officer
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY
PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC, its
general partner
By:
Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE
FUND III, L.P.
By: FLEMING US DISCOVERY
PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: ________________________
Robert L. Burr, member
[Signature page to Registration Rights Agreement]
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================================================================================
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
dated
October 8, 1999
among
Alyn Corporation,
Fleming US Discovery Fund III, L.P.
and
Fleming US Discovery Offshore Fund III, L.P.
================================================================================
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TABLE OF CONTENTS
Page
ARTICLE I.....................................................................1
DEMAND REGISTRATIONS.................................................1
1.1 Requests for Registration........................1
1.2 Limitations on Demand Registrations..............2
1.3 Effective Registration Statement.................2
1.4 Priority on Demand Registrations.................3
1.5 Selection of Underwriters........................3
1.6 Other Registration Rights........................3
ARTICLE II....................................................................3
OTHER REGISTRATIONS..................................................3
2.1 Right to Piggyback...............................3
2.2 Priority on Primary Registrations................3
2.3 Priority on Secondary Registrations..............4
2.4 Other Registrations..............................4
ARTICLE III...................................................................4
REGISTRATION PROCEDURES..............................................4
ARTICLE IV....................................................................8
REGISTRATION EXPENSES................................................8
4.1 Company's Fees and Expenses......................8
4.2 Fees of Counsel to Holders.......................8
ARTICLE V.....................................................................9
UNDERWRITTEN OFFERINGS...............................................9
5.1 Demand Underwritten Offerings....................9
5.2 Incidental Underwritten Offerings................9
ARTICLE VI...................................................................10
INDEMNIFICATION.....................................................10
6.1 Indemnification by the Company..................10
6.2 Indemnification by Holders......................11
6.3 Indemnification Procedures......................11
6.4 Indemnification of Underwriters.................12
6.5 Contribution....................................12
6.6 Timing of Indemnification Payments..............13
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ARTICLE VII..................................................................14
RULE 144............................................................14
ARTICLE VIII.................................................................14
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.........................14
ARTICLE IX...................................................................14
MERGERS, ETC........................................................14
ARTICLE X....................................................................15
DEFINITIONS.........................................................15
ARTICLE XI...................................................................16
MISCELLANEOUS.......................................................16
11.1 No Inconsistent Agreements......................16
11.2 Adjustments Affecting Registrable Securities....16
11.3 Remedies........................................17
11.4 Amendments and Waivers..........................17
11.5 Successors and Assigns..........................17
11.6 Notices.........................................17
11.7 Headings........................................18
11.8 Gender..........................................18
11.9 Invalid Provisions..............................19
11.10 Governing Law...................................19
11.11 Counterparts....................................19
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EXECUTION COPY
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT is dated as of October 8, 1999,
among Alyn Corporation, a Delaware corporation (the "Company"), Arne van Roon
("van Roon") and Robin A. Carden ("Carden"; together with van Roon, referred to
herein as "Management Stockholders"), Fleming US Discovery Fund III, L.P. and
Fleming US Discovery Offshore Fund III, L.P. (collectively, the "Fleming
Funds"). The Fleming Funds, any Fleming Holder and any Transferee are
collectively referred to herein as the "Investor Group" and, individually, an
"Investor."
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Stock and Warrant
Purchase Agreements, dated as of September 29, 1999, between the Company and
each of the Fleming Funds (the "Stock and Warrant Purchase Agreements"), the
Fleming Funds have purchased 75,000 shares of the Company's Series C Convertible
Preferred Stock, par value $.01 per share (the "Series C Preferred");
WHEREAS, van Roon beneficially owns (i) 11,000 shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), which
constitutes approximately one-tenth of one percent (0.10%) of the outstanding
shares of Common Stock (such shares, along with any shares of Common Stock or
other equity securities of the Company that van Roon may subsequently acquire,
the "van Roon Shares"), and (ii) options exercisable for the purchase of 750,000
shares of Common Stock and warrants exercisable for the purchase of 50,000
shares of Common Stock;
WHEREAS, Carden beneficially owns (i) 2,544,500 shares of
Common Stock, which constitutes approximately twenty-one percent (21.0%) of the
outstanding shares of the Common Stock (such shares along with any shares of
Common Stock or other equity securities of the Company that Carden may
subsequently acquire, the "Carden Shares"; together with the van Roon Shares,
referred to herein as "Management Shares");
WHEREAS, it is a condition precedent to the Company's and the
Fleming Funds' respective obligations to consummate the transactions
contemplated by the Stock and Warrant Purchase Agreements that the parties
hereto shall have entered into this Agreement; and
WHEREAS, each of van Roon, Carden, the Company and the Fleming
Funds desires to enter into this Agreement to regulate certain aspects of their
relationship;
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NOW, THEREFORE, in consideration of the arguments and mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. RIGHTS OF INCLUSION (TAG-ALONG RIGHTS).
(a) In the event a Management Stockholder proposes to Transfer
any Management Shares (the "Transferor Shares") to any Person (the "Buyer"), as
a condition to such Transfer, such Management Stockholder shall cause the Buyer
to offer (the "Inclusion Offer") to purchase from each Investor, at each such
Investor's option, up to that number of Investor Shares determined in accordance
with Section 1(b) on the same terms and conditions as are applicable to the
Transferor Shares (including any consideration to be received by such Management
Stockholder in the form of bonuses, consulting fees, noncompetition payments,
pursuant to employment arrangements or similar arrangements), except that each
Investor shall not be required to provide any representation, warranty or other
undertaking other than with respect to its ownership of, and authority to
Transfer, the Investor Shares owned by it free of any liens or encumbrances.
Such Management Stockholder shall provide prompt written notice to each Investor
(the "Inclusion Notice") setting forth all the terms and conditions of the
Inclusion Offer, and each Investor may accept the Inclusion Offer in whole or in
part by providing a written notice of acceptance with respect to Investor Shares
owned by it to such Management Stockholder within ten (10) business days of
delivery of the Inclusion Notice to it (the "Acceptance Notice").
(b) Each Investor shall have the right to sell, pursuant to
the Inclusion Offer, Investor Shares representing the same percentage of all
Investor Shares owned by it as the Transferor Shares are of all Management
Shares owned by such Management Stockholder (such percentage shall be calculated
on the basis that all shares of Series C Preferred owned by each Investor have
been converted into shares of Common Stock at the current conversion price per
share under Section 5 of the Certificate of Designations); provided, however,
that if no Investor elects to exercise such right, such Management Stockholder
shall nonetheless be entitled to Transfer all or any portion of the Transferor
Shares described in the Inclusion Notice. In the event the number of Investor
Shares for which the Investor Group elects to exercise such right, along with
the Transferor Shares and any other shares of the Company to be sold by other
stockholders pursuant to any similar rights granted to such other stockholders,
exceed the number of shares which the Buyer is willing to purchase, the number
of shares to be Transferred to the Buyer by each transferor shall be reduced so
that each transferor is entitled to Transfer the same percentage of its shares
included in its Acceptance Notice as each other transferor. Any such Investor
shall, prior to or simultaneously with such Transfer, convert such shares of
Series C Preferred into shares of Common Stock so that each Investor Transfers
only Common Stock to the Buyer.
(c) Such Management Stockholder shall have ninety (90) days,
commencing on the date of the Inclusion Notice, in which to Transfer, on behalf
of himself and the Investor Group up to the number of shares covered by the
Inclusion Offer (including the Transferor Shares) to the Buyer. The terms of
such Transfer, including, without limitation, price and form of consideration,
shall be as set forth in the Inclusion Notice. If at the end of such ninety (90)
day period such Management Stockholder has not completed the Transfer of the
Transferor Shares and the Investor Shares (if any) proposed to be Transferred,
such Management Stockholder may not proceed with such Transfer or any other
Transfer without first giving a new Inclusion Notice pursuant to the provisions
of this Section 1.
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<PAGE>
(d) If such Management Stockholder is able to complete the
Transfer of the Transferor Shares and the Investor Shares (if any) proposed to
be Transferred within such ninety (90) day period, at the closing thereof, each
Investor shall deliver to the Buyer a certificate or certificates representing
the Investor Shares owned by it to be Transferred pursuant to the Inclusion
Offer, free and clear of all liens and encumbrances, and the Buyer shall pay to
each such Investor the purchase price for the Investor Shares so Transferred
pursuant to this Section 1 and shall furnish such other evidence of the
completion of such Transfer and the terms thereof as may be reasonably requested
by the Investor Group.
(e) The provisions of this Section 1 shall not apply to any
Transfer or proposed Transfer by a Management Stockholder of Management Shares
which represents twelve and one-half percent (12.5%) or less of the Management
Shares held by such Management Stockholder on the Closing Date (as defined in
the Stock and Warrant Purchase Agreements) if such Transfer or proposed Transfer
by such Management Stockholder of Management Shares, together with all other
Transfers by such Management Stockholder of Management Shares on or prior to the
date of such Transfer, represent twenty-five percent (25%) or less of the
Management Shares held by such Management Stockholder on the Closing, with
Management Shares held by such Management Stockholder on the Closing Date to be
appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or similar event; provided, however, that each Transfer of such
Management Shares that takes place within one year of any other Transfer to the
same Person or any Affiliate of such Person shall be aggregated for purposes of
such twelve and one-half percent (12.5%) threshold. In the event that such
Management Stockholder desires to exercise an option to purchase shares of
Common Stock of the Company, then such Management Stockholder may Transfer
Management Shares to the extent necessary to obtain the funds to exercise such
option and such Transfer shall not be included in the calculation of the
percentages in this Section 1(e).
(f) The provisions of this Section 1 shall only apply to such
Management Stockholder so long as such Management Stockholder is an executive
officer of the Company at the time of any proposed Transfer.
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<PAGE>
2. Board Observer Rights; Committees.
(a) The Company agrees with the Fleming Funds that the Fleming
Holders (or if no shares of Series C Preferred are held by a Fleming Holder, any
Transferee), shall have the right to have up to two (2) representatives (the
"Fleming Observer" or "Fleming Observers") (subject to the provisions of Section
2(b) herein) attend and participate in meetings of the Company's Board of
Directors, or any committee thereof, and the Company shall permit any Fleming
Observer to attend and participate in all such meetings as an observer, provided
that, so long as (x) at least 50% of the Series C Preferred is outstanding, the
Fleming Holders or the Transferee, as the case may be, shall have the right to
have up to two (2) Fleming Observers and (y) at least 25% but less than 50% of
the Series C Preferred is outstanding, the Fleming Holders or the Transferee, as
the case may be, shall have the right to have one (1) Fleming Observer, and
provided further that, upon the request of the Company, each Fleming Observer
shall (I) execute a confidentiality agreement between the Company and such
Fleming Observer, in form and substance reasonably satisfactory to the Company
and (II) execute an acknowledgement to the insider trading policy of the
Company. A Fleming Observer shall not have the right to vote on any matter
presented to the Board or any committee thereof. The Company shall give all
Fleming Observers written notice of each meeting of the Board of Directors or
any committee thereof and all written materials and other information given to
the Company's directors and committee members in the same manner and at the same
time such notices, materials and other information are given to the directors
and committee members. The Company shall reimburse any Fleming Observer for
coach travel and other expenses in connection with such meetings to the same
extent that the Company reimburses its directors and committee members. If the
Board of Directors or any committee thereof proposes to take any action by
written consent in lieu of a meeting, the Company shall give written notice
thereof to all Fleming Observers prior to the effective date of such consent
describing the nature and substance of such action.
(b) During such time that the holders of the Series C
Preferred have elected at least one director to the Company's Board of Directors
(or have waived their right to so elect such director) pursuant to Section 4 of
the Company's Certificate of Designations with respect to the Series C Preferred
(the "Investor Director"), the number of Fleming Observers that the Fleming
Holders or the Transferee, as the case may be, shall be able to exercise their
rights as provided in Section 2(a) shall be modified such that (x) in the event
there is one (1) Investor Director, the Fleming Holders or the Transferee, as
the case may be, shall have the right to have up to one (1) Fleming Observer,
and (y) in the event there are two (2) Investor Directors, the Fleming Holders
or the Transferee, as the case may be, shall not have the right to have any
Fleming Observer.
(c) So long as at least 25% of the shares of Series C
Preferred issued pursuant to the Stock and Warrant Purchase Agreements are
outstanding, the Company, van Roon and Carden acknowledge that the parties to
this Agreement desire that one Investor Director be appointed to the Executive,
Compensation, Stock Option and Audit Committees of the Company's Board of
Directors (provided that the holders of the Series C Preferred have exercised
their right to elect an Investor Director pursuant to Section 4 of the Company's
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<PAGE>
Certificate of Designations with respect to the Series C Preferred) and at each
time the Company's Board of Directors appoints committee members, agree to use
their best efforts and take any other action necessary or appropriate to ensure
such appointment; provided, however, that the agreements of this paragraph (c)
shall terminate with respect to an Investor Director upon the Fleming Holders'
or the Transferee's delivery of a written notice to the Company, van Roon and
Carden to the effect that such Investor Director need not be appointed to the
aforesaid committees.
3. Definitions.
As used herein, the following terms shall have the respective
meanings set forth below:
"ACCEPTANCE NOTICE" shall have the meaning set forth in
Section 1(a) hereof.
"AFFILIATE" shall have the meaning given it in Section 3 of
the Stock and Warrant Purchase Agreements.
"BOARD" OR "BOARD OF DIRECTORS" shall have the meaning given
it in Section 3 of the Stock and Warrant Purchase Agreements.
"BUYER" shall have the meaning set forth in Section 1(a)
hereof.
"CAPITAL STOCK" means the Common Stock (including, without
limitation, any Common Stock issuable upon conversion of the Series C Preferred
or upon exercise of the Warrants), Series C Preferred and any other class of
equity security which the Company may issue and any securities or other rights
convertible, exchangeable or exercisable for or into any Capital Stock.
"CARDEN" shall have the meaning set forth in the first
paragraph hereof.
"CARDEN SHARES" shall have the meaning set forth in the Third
WHEREAS clause hereof.
"CERTIFICATE OF DESIGNATIONS" shall have the meaning given it
in Section 1(a) of the Stock and Warrant Purchase Agreements.
"COMMON STOCK" shall have the meaning set forth in the second
WHEREAS clause hereof.
"COMPANY" shall have the meaning set forth in the first
paragraph hereof.
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<PAGE>
"FLEMING FUNDS" shall have the meaning set forth in the first
paragraph hereof.
"FLEMING HOLDERS" shall have the meaning given it in Section 3
of the Stock and Warrant Purchase Agreements.
"FLEMING OBSERVER" shall have the meaning set forth in Section
2(a) hereof.
"FULLY DILUTED BASIS" means, with respect to the calculation
of the number of shares of Capital Stock, as of each date of determination
thereof, (i) all shares of Capital Stock outstanding at the time of
determination and (ii) all shares of Capital Stock issuable upon the exchange,
exercise or conversion of any security or other right then outstanding which is
exchangeable, exercisable or convertible into Capital Stock.
"INCLUSION NOTICE" shall have the meaning set forth in Section
1(a) hereof.
"INCLUSION OFFER" shall have the meaning set forth in Section
1(a) hereof.
"INVESTOR" shall have the meaning set forth in the first
paragraph hereof.
"INVESTOR DIRECTOR" shall have the meaning set forth in
Section 2(b) hereof.
"INVESTOR GROUP" shall have the meaning set forth in the first
paragraph hereof.
"INVESTOR SHARES" means all Series C Preferred and Common
Stock owned by the Investor Group.
"MANAGEMENT SHARES" shall have the meaning set forth the third
WHEREAS clause hereof.
"MANAGEMENT STOCKHOLDER" shall have the meaning set forth in
the first paragraph hereof.
"PERSON" means an individual, corporation, partnership, firm,
association, joint venture, trust, unincorporated organization, governmental
body, agency, political subdivision or other entity.
"PRO RATA" means with respect to a stockholder, in proportion
to the number of shares of Capital Stock on a Fully Diluted Basis owned by such
stockholder.
"SERIES C PREFERRED" shall have the meaning set forth in the
first WHEREAS clause hereof.
"STOCK AND WARRANT PURCHASE AGREEMENTS" shall have the meaning
set forth in the first WHEREAS clause hereof.
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<PAGE>
"TRANSFER" means, with respect to any security, any direct or
indirect sale, transfer, assignment, hypothecation, pledge or any other
disposition of such security or any interest therein.
"TRANSFEREE" shall have the meaning given it in Section 3 of
the Stock and Warrant Purchase Agreements.
"TRANSFEROR SHARES" shall have the meaning set forth in
Section 1(a) hereof.
"VAN ROON" shall have the meaning set forth in the first
paragraph hereof.
"VAN ROON SHARES" shall have the meaning set forth in the
second WHEREAS clause hereof.
"WARRANTS" shall have the meaning set forth in Section 1 of
the Stock and Warrant Purchase Agreements.
4. MISCELLANEOUS.
(a) In the event of a breach by any party to this Agreement of
its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties that the
remedy at law, including monetary damages, for breach of any such provision will
be inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
(b) Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement will be effective against
any party hereto unless such modification, amendment or waiver is approved in
writing by all parties hereto. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a waiver of such
provisions and will not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
(c) All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
(d) All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or sent by nationally recognized
overnight courier service to the parties at the following addresses or facsimile
numbers:
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<PAGE>
(i) If to an Investor, to:
the address indicated on Schedule 1 to the Stock and
Warrant Purchase Agreements.
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Facsimile No.: (212) 309-6273
Attn: David W. Pollak, Esq.
(ii) If to the Company, to:
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92606
Facsimile No.: (949) 475-2359
Attn: Secretary
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038-4892
Facsimile No.: (212) 504-6666
Attn: Gerald A. Eppner, Esq.
(iii) If to van Roon, to:
Arne van Roon
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92606
Facsimile No.: (949) 475-2359
(iv) If to Carden, to:
Robin A. Carden
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92606
Facsimile No.: (949) 475-2359
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<PAGE>
All such notices, requests and other communications will (x)
if delivered personally to the address as provided in this Section 4(d), be
deemed given upon delivery, (y) if delivered by facsimile transmission to the
facsimile number as provided in this Section 4(d), be deemed given upon receipt
and (z) if delivered by nationally recognized overnight courier service in the
manner described above to the address as provided in this Section 4(d), be
deemed given on the business day following the day it was sent (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section 4(d)). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
(e) The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
(f) If any provision of this Agreement is held to be illegal,
invalid or unenforceable, and if the rights or obligations of any party hereto
under this Agreement will not be materially and adversely affected thereby, (i)
such provision will be fully severable, (ii) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State without giving effect to the conflicts of
laws principles thereof.
(h) This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have duly executed this
Stockholders' Agreement as of the date first written above.
ALYN CORPORATION
By:____________________________________
Name: Arne van Roon
Title: Chief Executive Officer
By:____________________________________
Name: Richard L. Little
Title: Chief Financial Officer
With respect to the obligations contained in
Sections 1, 2(c), 3 and 4 hereof only:
_______________________________________
Arne van Roon
_______________________________________
Robin Carden
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY
PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC, its general
partner
By: _________________________________
Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE
FUND III, L.P.
By: FLEMING US DISCOVERY
PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC, its general
partner
By: ________________________________
Robert L. Burr, member
[Signature page to Stockholders' Agreement]
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