EXHIBIT 99.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of February 22,2004 among Credence Systems Corporation,
a Delaware corporation (the "Issuer"), and the Holders as defined herein.
WITNESSETH:
WHEREAS, this Agreement is being entered into in connection with the
Merger Agreement referred to below; and
WHEREAS, the Issuer and the Holders are subject to the terms and
conditions of that certain Stockholder Lock-Up Agreement, dated February 22,
2004, by and between the Issuer and NPTest Holding, LLC (the "Lock-Up
Agreement").
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representation, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the Agreement and Plan of
Reorganization dated as of February 22, 2004 among the Issuer, NPTest Holding
Corporation, a Delaware corporation, and Xxxxxxxx Corporation, a Delaware
corporation (the "Merger Agreement"), are used herein as defined therein. In
addition, the following terms, as used herein, shall have the following
respective meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person, provided that no securityholder of the Issuer shall be deemed an
Affiliate of any other securityholder solely by reason of any investment in the
Issuer. For the purpose of this definition, the term "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Commission" means the Securities and Exchange Commission or any successor
governmental body or agency.
"Common Stock means the common stock, par value $.001 per share, of the
Issuer.
"Demand Registration" has the meaning ascribed thereto in Section
2.01(a)(i).
"Demand Request" has the meaning ascribed thereto in Section 2.01(a)(i).
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.04.
"Disadvantageous Condition Delay" has the meaning ascribed thereto in
Section 2.04.
"Exercise Period has the meaning ascribed thereto in Section 2.11.
"Holder" means a person who owns Registrable Securities and is either (i)
the Investor or (ii) a Person that (A) has agreed to be bound by the terms of
this Agreement as if such Person were the Investor and (B) has received
Registrable Securities pursuant to a transfer from another Holder.
"Initial Period" means the 180 day period (as may be extended from time to
time pursuant to Section 2.04) following the Second Release Date (as defined in
the Lock-Up Agreement).
"Investor" means NPTest Holding, LLC.
"Issuer Securities" means (i) the Common Stock, (ii) securities
convertible into or exchangeable for Common Stock, (iii) any other equity or
equity-linked security issued by the Company and (iv) options, warrants or
other rights to acquire Common Stock or any other equity or equity-linked
security issued by the Company.
"Marketing Interfering Condition" has the meaning ascribed thereto in
Section 2.04(b).
"Marketing Interfering Delay" has the meaning ascribed thereto in Section
2.04(b).
"Person" means an individual, a corporation, a partnership, limited
liability company, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
2
"Preferred Stock" means the Preferred Stock, par value $0.001 per share of
the Issuer.
"Public Offering" means an underwritten public offering of the Issuer
pursuant to an effective registration statement under the 1933 Act, other than
pursuant to a registration statement on Form S-4 or Form S-8 or any similar or
successor form.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended and the
rules and regulations thereunder.
"Registrable Securities" means Common Stock for which the Parent
Non-Voting Convertible Stock acquired by the Holders pursuant to the Merger is
convertible (and any shares of stock or other securities into which or for
which such Common Stock may hereafter be changed, converted or exchanged and
any other shares or securities issued to Holders of such Common Stock (or such
shares of stock or other securities into which or for which such shares are so
changed, converted or exchanged) upon any reclassification, share combination,
share subdivision, share dividend, share exchange, merger, consolidation or
similar transaction or event). As to any particular Registrable Securities,
such Registrable Securities shall cease to be Registrable Securities as soon as
(i) such Registrable Securities have been sold or otherwise disposed of
pursuant to a registration statement that was filed with the Commission in
accordance with this Agreement and declared effective under the 1933 Act, (ii)
they shall have been otherwise sold, transferred or disposed of by a Holder to
any Person that is not, or does not become, a Holder, or (iii) they shall have
ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to the
performance of or compliance with any registration or marketing of securities,
including all (i) registration and filing fees, and all other fees and expenses
payable in connection with the listing of securities on any securities exchange
or automated interdealer quotation system, (ii) fees and expenses of compliance
with any securities or "blue sky" laws (including reasonable fees and
disbursements of counsel in connection with "blue sky" qualifications of the
securities registered), (iii) expenses in connection with the preparation,
printing, mailing and delivery or any registration statements, prospectuses and
other documents in connection therewith and any amendments or supplements
thereto, (iv) security engraving and printing expenses, (v) internal expenses
of the Issuer (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (vi) reasonable
fees and disbursements of counsel for the Issuer and customary fees and
expenses for independent certified public
3
accountants retained by the Issuer (including the costs associated with the
delivery by independent certified public accountants of any comfort letters),
(vii) reasonable fees and expenses of any special experts retained by the
Issuer in connection with such registration, (viii) reasonable fees,
out-of-pocket costs and expenses of the Holders, including one counsel for all
the Holders participating in the offering selected by the Holders holding the
majority of the Registrable Securities to be sold for the account of all
Holders in the offering, (ix) fees and expenses in connection with any review
by the NASD of the underwriiting arrangements or other terms of the offering,
and all fees and expenses of any "qualified independent underwriter," including
the fees and expenses of any counsel thereto, (x) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding any underwriting fees, discounts and commissions attributable to the
sale of Registrable Securities, (xi) costs of printing and producing any
agreements among underwriters, underwriting agreements, any "blue sky" or legal
investment memoranda and any selling agreements and other documents in
connection with the offering, sale or delivery of the Registrable Securities,
(xii) transfer agents' and registrars' fees and expenses and the fees and
expenses of any other agent or trustee appointed in connection with such
offering, (xiii) expenses relating to any analyst or investor presentations or
any "road shows" undertaken in connection with the registration, marketing or
selling of the Registrable Securities, (xiv) fees and expenses payable in
connection with any ratings of the Registrable Securities, including expenses
relating to any presentations to rating agencies and (xv) all out-of pocket
costs and expenses incurred by the Issuer or its appropriate officers in
connection with their compliance with Section 2.06(g).
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the 1933 Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated
under the 1933 Act.
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Subsequent Period means the 360-day period (as may be extended from time
to time pursuant to Section 2.01(e)) following the expiration of the Initial
Period.
SECTION 1.02. Internal References Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the
corresponding
4
articles, sections and paragraphs in this Agreement, and references to the
parties shall mean the parties to this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Demand Registration. (a) Upon written notice to the Issuer
from one or more Holders at any time during such periods as are provided for in
the Lock-Up Agreement or as are agreed by the Issuer (the "Demand Request")
requesting that the Issuer effect the registration under the 1933 Act of any or
all of the Registrable Securities held by such requesting Holders, which notice
shall specify the intended method or methods of disposition of such Registrable
Securities, the Issuer shall prepare and, within 30 days after such request,
file with the Commission a registration statement with respect to such
Registrable Securities and thereafter use its commercially reasonable efforts
to cause such registration statement to be declared effective under the 1933
Act for purposes of dispositions in accordance with the intended method or
methods of disposition stated in such request. Notwithstanding any other
provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request
registration under this Section 2.01(a) on not more than two occasions
(each such registration being referred to herein as a "Demand
Registration");
(ii) the Issuer shall not be required to effect the Demand
Registration hereunder unless the aggregate number of Registrable
Securities to be registered pursuant to the Demand Registration is equal
to or more than 1,000,000 shares;
(iii) the method of disposition requested by Holders in connection
with any Demand Registration may not, without the Issuer's written
consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be required to effect any Demand
Registration hereunder if all securities that were Registrable Securities
on the date hereof have ceased to be Registrable Securities.
5
(b) Notwithstanding any other provision of this Agreement to the contrary,
a Demand Registration requested by Holders pursuant to this Section 2.01 shall
not be deemed to have been effected, and, therefore, not requested and the
rights of each Holder shall be deemed not to have been exercised for purposes
of paragraph (a) above, (i) if such Demand Registration has not become
effective under the 1933 Act or (ii) if such Demand Registration, after it
became effective under the 1933 Act, was not maintained effective under the
1933 Act (other than as a result of any stop order, injunction or other order
or requirement of the Commission or other government agency or court solely on
the account of a material misrepresentation or omission of a Holder) for at
least 30 days (or such shorter period ending when all the Registrable
Securities covered thereby have been disposed of pursuant thereto) and, as a
result thereof, the Registrable Securities requested to be registered cannot be
distributed in accordance with the plan of distribution set forth in the
related registration statement. So long as a Demand Request is made by the
Holders within the periods referred to in Section 2.01(a), the Holders shall
not lose their right to their Demand Registration under Section 2.01 if the
Demand Registration related to such Demand Request is delayed or not effected
in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of
additional equity securities for sale for the account of the Issuer (but not
for the account of stockholders other than Holders) in the registration of
Registrable Securities requested by the Holders pursuant to Section 2.01(a)
above; provided that if such Holders are advised in writing (with a copy to the
Issuer) by the lead or managing underwriter referred to in Section 2.03(b)
that, in such underwriter's good faith view, the number of shares of such
Registrable Securities and additional equity securities exceeds the largest
number of shares that can be sold in such registration without having an
adverse effect on the price, timing or distribution of the offering and sale of
the Registrable Securities and additional equity securities then contemplated
(or that the inclusion of shares for the account of the Issuer would, in such
underwriter's good faith view, have such an adverse effect), then the number of
securities that can, in the good faith view of such underwriter, be sold in
such offering without so adversely affecting such offering (the "Maximum
Offering Size") shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered
for the account of the Holders as would not cause the offering to exceed
the Maximum Offering Size (to be allocated among such Holders on the basis
of the relative number of shares of Registrable Securities so requested to
be included in such registration by each); and
6
(ii) second, all Registrable Securities requested to be included in
such registration for the account of the Issuer;
provided that the Issuer may not include securities therein for its own account
if such inclusion would result in any reduction in the Registrable Securities
proposed to be sold therein by the Holders. The Holders of the Registrable
Securities to be offered pursuant to paragraph (a) above may require that any
equity securities be included by the Issuer in the offering proposed by such
Holders on the same conditions as the Registrable Securities that are included
therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, the
Issuer shall provide a written notice to each Holder, advising such Holder of
its right to include any or all of the Registrable Securities held by such
Holder for sale pursuant to the Demand Registration and advising such Holder of
procedures to enable such Holder to elect to so include Registrable Securities
for sale in the Demand Registration. Any Holder may, within 7 days of delivery
to such Holder of a notice pursuant to this Section 2.01(d), elect to so
include Registrable Securities in the Demand Registration by written notice to
such effect to the Issuer specifying the number of Registrable Securities
desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent
Period, the Issuer shall give prompt notice at least 30 days prior to the
anticipated filing date of the registration statement relating to the
registration which is the subject of such Market Interfering Delay, to each
Holder, which notice shall set forth such Holder's rights under this Section
2.01(e) and shall offer such Holder the opportunity to include in such
registration statement such number of Registrable Securities as the Holders so
desire hut not to exceed up to 50% of the Registrable Securities then held by
all such Holders. Upon the request of any such Holder made within 20 days after
the receipt of notice from the Issuer (which request shall specify the number
of Registrable Securities intended to be registered by such Holder), the Issuer
shall use its commercially reasonable efforts to effect the registration under
the 1933 Act of all Registrable Securities that the Issuer has been so
requested to register by all such Holders, to the extent requisite to permit
the disposition of the Registrable Securities so to be registered, provided
that if, at any time after giving notice of its intention to register any
Issuer Securities pursuant to this Section 2.01(e) and prior to the effective
date of the registration statement filed in connection with such registration,
the Issuer shall determine for any reason not to register the securities to be
offered by Issuer, the Issuer shall terminate the Market Interfering Delay and
shall give notice to all such Holders and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration. No registration
7
effected under this Section 2.01(e) shall relieve the Issuer of its obligations
to effect any Demand Registration to the extent required by this Agreement. The
Issuer shall pay all Registration Expenses in connection with such registration
during the Subsequent Period. Notwithstanding the foregoing, the Issuer shall
not be entitled to both a Disadvantageous Condition Delay and a Market
Interfering Delay during the Subsequent Period and is entitled to only one
Market Interfering Delay during the Subsequent Period in any event.
Furthermore, the duration of the Subsequent Period shall be extended by the
number of days equal to the period of any Disadvantageous Condition Delay
occurring during the Subsequent Period.
SECTION 2.02. Piggyback Registration. (a) Without limiting in any way any
Holder's rights under Section 2.01(e), the Issuer proposes to register any
Issuer Securities under the 1933 Act (other than a registration on Form X-0,
X-0 or S-3 (but only to the extent it relates to the resale of securities for
any holder of Issuer Securities, other than the Holders), or any successor
forms, relating to Common Stock issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Issuer or in connection with a direct or indirect acquisition by the Issuer of
another Person), whether or not for sale for its own account, the Issuer shall
each such time give prompt notice at least 30 days prior to the anticipated
filing date of the registration statement relating to such registration to each
Holder, which notice shall set forth such Holder's rights under this 2.02 and
shall offer such Holder the opportunity to include in such registration
statement the number of Registrable Securities as each such Holder may request
(a "Piggyback Registration"). Upon the request of any such Holder made within
20 days after the receipt of notice from the Issuer (which request shall
specify the number of Registrable Securities intended to be registered by such
Holder), the Issuer shall use its commercially reasonable efforts to effect the
registration under the 1933 Act of all Registrable Securities that the Issuer
has been so requested to register by all such Holders, to the extent requisite
to permit the disposition of the Registrable Securities so to be
registered, provided that (i) if such registration involves an underwritten
Public Offering, all such Holders requesting to be included in the Issuer's
registration must sell their Registrable Securities to the underwriters
selected as provided in Section 2.03(b) on the same terms and conditions as
apply to the Issuer or the other selling stockholders, as applicable, and (ii)
if, at any time after giving notice of its intention to register any Issuer
Securities pursuant to this Section 2.02(a) and prior to the effective date of
the registration statement filed in connection with such registration, the
Issuer shall determine for any reason not to register such securities, the
Issuer shall give notice to all such Holders and, thereupon, shall be relieved
of its obligation to register any Registrable Securities in connection with
such registration. No registration effected under this Section 2.02 shall
relieve the Issuer of its obligations to effect Demand Registrations to the
extent required by Section 2.01.
8
The Issuer shall pay all Registration Expenses in connection with each
Piggyback Registration.
(b) Subject in all respects to Section 2.01(e), if a Piggyback
Registration involves an underwritten Public Offering (other than any Demand
Registration, in which case the provisions with respect to priority of
inclusion in such offering set forth in Section 2.01(c) shall apply) and the
managing underwriter advises the Issuer that, in its view, the number of shares
of Common Stock that the Issuer, the Holders and any other selling stockholders
intend to include in such registration exceeds the Maximum Offering Size, the
Issuer shall include in such registration, in the following priority, up to the
Maximum Offering Size:
(i) first, so much of the Issuer Securities proposed to be registered
for the account of the Issuer as would not cause the offering to exceed
the Maximum Offering Size;
(ii) second, all Registrable Securities requested to be included in
such registration by any Holders pursuant to 2.02 (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata among
such Holders on the basis of the relative number of shares of Registrable
Securities so requested to be included in such registration by each); and
(iii) third, all Registrable Securities requested to be included in
such registration by any other selling stockholders (allocated, if
necessary for the offering not to exceed the Maximum Offering Size, pro
rata among such selling stockholders on the basis of the relative number
of shares of Registrable Securities so requested to be included in such
registration by each).
SECTION 2.03. Other Matters In Connection With Registrations. (a) Each
Holder shall keep the Issuer informed promptly of (x) the name, address and
other contact information of such Holder, (y) the number of Registrable
Securities held from time-to-time by such Holder and (z) each sale, transfer or
other disposition of Registrable Securities (including the number of shares
sold) by such Holder.
(b) In the event of any Public Offering (other than pursuant to Section
2.01(e)) as provided for in Section 2.01, Holders owning a majority of the
Registrable Securities proposed to be sold therein shall have the right to
designate an underwriter or underwriters from the list of underwriters attached
as Schedule I hereto, or who shall otherwise be agreed to by such Holders and
the Issuer, as the lead or managing underwriter or underwriters of such
offering. Such Holders shall have the exclusive right to appoint other members
of the underwriting syndicate.
9
SECTION 2.04. Certain Delay Rights
(a) Notwithstanding any other provision of this Agreement to the contrary,
if at any time the Issuer provides written notice to each Holder that in the
Issuer's good faith and reasonable judgment it would be materially
disadvantageous to the Issuer (because the sale of Registrable Securities
covered by such registration statement or the disclosure of information therein
or in any related prospectus or prospectus supplement would materially
interfere with any acquisition, financing or other material event or
transaction in connection with which a registration of securities under the
1933 Act for the account of the Issuer is then intended or the public
disclosure of which at the time would be materially prejudicial to the Issuer
or because the Issuer shall have determined in good faith that the Issuer
possesses material non-public information about the Issuer which information
the Issuer has reasonably determined in good faith cannot or should not be
disclosed without materially adversely affecting the Issuer) (a
"Disadvantageous Condition") for a Registration Statement to be filed and
become effective, and setting forth the general reasons for such judgment, the
Issuer shall be entitled not to file any such registration statement, until
such Disadvantageous Condition no longer exists (notice of which the Issuer
shall promptly deliver to each Holder). Notwithstanding anything else
contained in this Agreement, neither the filing nor the effectiveness of any
registration statement may be delayed as a result of a Disadvantageous
Condition more than one time in any 360-day period, and such delay shall not be
for more than 90 days. If Issuer shall delay the filing of a Registration
Statement pursuant to this Section 2.04 (a "Disadvantageous Condition Delay")
during the Initial Period, then the Initial Period shall be extended by the
number of days equal to the period of such Disadvantageous Condition Delay.
Notwithstanding the foregoing, Issuer shall not be entitled to a
Disadvantageous Condition Delay if a Market Interfering Delay shall have
occurred within the preceding 12 months.
(b) Notwithstanding any other provision of this Agreement to the contrary
and subject to Section 2.01(e), if the Issuer proposes to register any Issuer
Securities under the 1933 Act (other than a registration on Form X-0, X-0 or
S-3 (but only to the extent it relates to the resale of securities for any
holder of Issuer Securities, other than the Holders), or any successor forms,
relating to Common Stock issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Issuer or in
connection with a direct or indirect acquisition by the Issuer of another
Person), for its own account at any time following the Initial Period
(including any extensions thereof), the Issuer may provide written notice to
each Holder that in the Issuer's good faith and reasonable judgment it
would be materially disadvantageous to the Issuer (because the sale of
Registrable Securities covered by such registration statement would
10
materially interfere with the sale by Issuer of any Issuer Securities to be
registered under the 1933 Act and sold for the account of the Issuer) (a
"Market Interfering Condition") for a registration statement to be filed and
become effective, and setting forth the general reasons for such judgment, the
Issuer shall be entitled not to file any such registration statement, until
such Market Interfering Condition no longer exists (notice of which the Issuer
shall promptly deliver to each Holder). Notwithstanding anything else contained
in this Agreement, neither the filing nor the effectiveness of any registration
statement may be delayed as a result of the Market Interfering Condition (a
"Market Interfering Delay") more than one time in any 360-day period, and such
delay shall not be for more than 135 days.
SECTION 2.05. Expenses Except as provided herein, the Issuer shall pay all
Registration Expenses with respect to each registration hereunder.
Notwithstanding the foregoing, each Holder shall be responsible for all
underwriting discount and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, if any, in connection with the sale
of securities by such Holder.
SECTION 2.06. Registration and Qualification. If and whenever the Issuer
is required to effect the registration of any Registrable Securities under the
1933 Act as provided in Section 2.01 or 2.02, the Issuer shall as promptly as
practicable (hut subject to the provisions of Section 2.01 and 2.02):
(a) prepare, file and cause to become effective a registration statement
under the 1933 Act relating to the Registrable Securities to be offered in
accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to comply
with the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities in the case of the Demand Registration, until the
earlier of (A) such time as all Registrable Securities proposed to be sold
therein have been disposed of in accordance with the intended methods of
disposition set forth in such registration statement and (B) the expiration of
90 days after such registration statement becomes effective; provided, that
such 90-day period shall be extended for such number of days that equals the
number of days elapsing from (x) the date the written notice contemplated by
paragraph (e) below is given by the Issuer to (y) the date on which the Issuer
delivers to the Holders of Registrable Securities the supplement or amendment
contemplated by paragraph (c) below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
11
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the 1933 Act, and such
documents incorporated by reference in such registration statement or
prospectus, as the Holders of Registrable Securities or such underwriter may
reasonably request;
(d) furnish to any underwriter of such Registrable Securities an opinion
of counsel for the Issuer and a "cold comfort" letter signed by the independent
public accountants who have audited the financial statements of the Issuer
included in the applicable registration statement, in each such case covering
substantially such matters with respect to such registration statement (and the
prospectus included therein) and the related offering as are customarily
covered in opinions of issuer's counsel with respect thereto and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities and such other matters as such underwriters may reasonably
request;
(e) promptly notify the Selling Holders in writing (i) at any time when a
prospectus relating to a registration pursuant to Section 2.01 or 2.02 is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) of any request by the Commission or any other
regulatory body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders
prepare and furnish to the Selling Holders 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, in light of the circumstances under which they are made,
not misleading;
(f) use its commercially reasonable efforts to list all such Registrable
Securities covered by such registration on each securities exchange and
automated inter-dealer quotation system on which the Common Stock is then
listed;
(g) use commercially reasonable efforts to assist the Holders in the
marketing of Common Stock in connection with any underwritten offerings
hereunder (including having officers of the Issuer attend "road shows" and
analyst or investor presentations scheduled in connection with such
registration); and
12
(h) furnish for delivery in connection with the closing of any offering of
Registrable Securities pursuant to a registration effected pursuant to Sections
2.01 or 2.02 unlegended certificates representing ownership of the Registrable
Securities being sold in such denominations as shall be requested by the
Selling Holders or the underwriters.
SECTION 2.07. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant
to a registration requested under this Article 2, the Issuer shall enter into
an underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties by the Issuer and
such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 2.08, and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 2.06(d). Such underwriting agreement shall also
contain such representations and warranties by such Selling Holders and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 2.08.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act pursuant to
this Article 2, the Issuer shall give the Holders of such Registrable
Securities and the underwriters, if any, and their respective counsel and
accountants (the identity and number of whom shall be reasonably acceptable to
the Issuer), such reasonable and customary access to its books, records and
properties and such opportunities to discuss the business and affairs of the
Issuer with its officers and the independent public accountants who have
certified the financial statements of the Issuer as shall be necessary, in the
opinion of such Holders and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the 1933 Act; provided
that the foregoing shall not require the Issuer to provide access to (or copies
of) any competitively sensitive information relating to the Issuer or its
subsidiaries or their respective businesses; provided further that the Holders
and the underwriters and their respective counsel and accountants shall use
their commercially reasonable efforts to minimize the disruption to the
Issuer's business and coordinate any such investigation of the books, records
and properties of the Issuer and any such discussions with the Issuer's
officers and accountants so that all such investigations occur at the same time
and all such discussions occur at the same time.
13
SECTION 2.08. Indemnification and Contribution. (a) The Issuer agrees to
indemnify and hold harmless each Selling Holder and each person, if any, who
controls each Selling Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement
of a material fact contained in any registration statement or any amendment
thereof, any preliminary prospectus or prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto)
relating to the Registrable Securities, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Issuer in writing by a Selling Holder expressly for use
therein. The Issuer also agrees to indemnify any underwriter of the Registrable
Securities so offered and each person, if any, who controls such underwriter on
substantially the same basis as that of the indemnification by the Issuer of
the Selling Holder provided in this Section 2.08(a).
(b) Each Selling Holder agrees to indemnify and hold harmless the Issuer,
its directors, the officers who sign any registration statement and each
person, if any who controls the Issuer within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement
of a material fact contained in any registration statement or any amendment
thereof, any preliminary prospectus or prospectus (as amended or supplemented
if the Issuer shall have finished any amendments or supplements thereto)
relating to the Registrable Securities, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only insofar as
such information is furnished in writing by a Selling Holder (or any
representative thereof) expressly for use in a registration statement, any
preliminary prospectus, prospectus or any amendments or supplements thereto.
Each Selling Holder also agrees to indemnify any underwriter of the Registrable
Securities so offered and each person, if any, who controls such underwriter on
substantially the same basis as that of the indemnification by such Selling
Holder of the Issuer provided in this Section 2.08(b).
14
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided that the failure
to notify the indemnifying party shall not relieve it from any liability that
it may have to an indemnified party on account of the indemnity agreement
contained in paragraph (a) or (b) above except to the extent that the
indemnifying party was actually prejudiced by such failure, and in no event
shall such failure relieve the indemnifying party from any other liability that
it may have to such indemnified party. If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying party thereof, unless based on the written advice of counsel to
such indemnified party a conflict of interest between such indemnified party
and indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 2.08 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof. Any
indemnifying party against whom indemnity may be sought under this Section 2.08
shall not be liable to indemnify an indemnified party if such indemnified party
settles such claim or action without the consent of the indemnifying party. The
indemnifying party may not agree to any settlement of any such claim or action,
other than solely for monetary damages for which the indemnifying party shall be
responsible hereunder, as the result of which any remedy or relief shall be
applied to or against the indemnified party, without the prior written consent
of the indemnified party. In any action hereunder as to which the indemnifying
party has assumed the defense thereof, the indemnified party shall continue to
be entitled to participate in the defense thereof, with counsel of its own
choice, but the indemnifying party shall not be obligated hereunder to reimburse
the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 2.08 shall for any
reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage
(i) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities or (ii) if the
allocation provided by clause (i) above is not permitted by
15
applicable law, in such proportion as is appropriate to reflect not only the
relative faults referred to in clause (i) above but also the relative benefits
received by the Issuer on the one hand and the Selling Holders on the other
hand from the offering of the Registrable Securities, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
on the one hand and the Selling Holders on the other hand in connection with
the offering of the Registrable Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Registrable
Securities (before deducting expenses) received by the Issuer and the Selling
Holders, respectively, bear to the aggregate public offering price of the
Registrable Securities. The relative fault of the Issuer on the one hand and
the Selling Holders on the other hand 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 Issuer or a Selling Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by an
indemnified party as a result of the loss, cost, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph (d) shall be
deemed to include, for purposes of this paragraph (d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. The Issuer and the Selling
Holders agree that it would not be just and equitable if contribution pursuant
to this Section 2.08 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding any other
provision of this Section 2.08, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 1l(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the parties under this Section 2.08 shall be in
addition to any liability which any party may otherwise have to any other
party.
SECTION 2.09. Corporate Transactions. The Issuer shall not enter into or
effect any reclassification, share combination, share subdivision, share
dividend, share exchange, merger, consolidation or similar corporate
transaction in which Registrable Securities shall be changed, converted or
exchanged into other securities unless the Person issuing such other securities
agrees to provide registration rights to the Holders on terms no less favorable
than those provided
16
for in this Agreement.
SECTION 2.10. Holdback Agreement. If the Demand Registration pursuant to
this Article 2 shall be in connection with an underwritten public offering of
Registrable Securities, the Company and each Selling Holder agrees not to
effect any sale or distribution, including any sale under Rule 144, of any
equity security of the Issuer (otherwise than through the registered public
offering then being made), within 7 days prior to or 60 days (or such lesser
period as the lead or managing underwriters may permit) after the effective
date of the applicable registration statement.
SECTION 2.11. Termination of Registration Rights. No holder shall be
entitled to exercise any right provided for in this Article 2 after three (3)
years following the Closing Date (the "Exercise Period''); provided that the
Exercise Period shall be extended by the number of days equal to any
Disadvantageous Condition Delay or Market Interfering Delay exercised by the
Issuer.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
SECTION 3.02. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the Issuer and
Holders representing a majority of the Registrable Securities then held by all
Holders.
SECTION 3.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated pursuant to Section
2.03(a)).
17
SECTION 3.04. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
SECTION 3.05. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 3.06. No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any Person who or
which is not a party hereto, other than a person who is or becomes a Holder as
provided herein.
SECTION 3.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Delaware without reference to such
state's principles of conflicts of law. Each of the parties hereto irrevocably
consents to the exclusive jurisdiction of any court located within the State of
Delaware, in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may be served
upon them in any manner authorized by the laws of the State of Delaware for
such persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process. THE
PARTIES HERETO IRREVOCABLY WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION WITH
ANY ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE MERGER OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 3.08. Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
SECTION 3.09. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
18
IN WITNESS WHEREOF, the Issuer and the Holder have caused this Agreement
to be duly executed as of the day and year first above written.
CREDENCE SYSTEMS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Holder
------
NPTEST HOLDING, LLC
By: Francisco Partners GP, LLC as Managing
Member
By: /s/ Xxxxxxxx Xxx
------------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
Address: Francisco Partners
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SCHEDULE I
List of Potential Underwriters
Citigroup
Xxxxxxx Xxxxx
XX Xxxxx
Xxxxx Xxxxxxxx
Credit Suisse First Boston
Xxxxxx Brothers
UBS Warburg
JPMorgan
Xxxxxxx Xxxxx
Banc of America
