EXHIBIT 10.21
ADE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of February
28, 1997, by and between ADE Corporation, a Massachusetts corporation having its
principal place of business at 00 Xxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
("ADE" or the "Company"), and Xxxxxx X. Xxxxxxxxx of 00 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, individually and as Trustee of Thouria
Investment Trust under a Declaration of Trust dated August 18, 1992 recorded in
the Middlesex South District Registry of Deeds at Book 22305, Page 375 (the
"Purchaser").
RECITALS
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The Purchaser is a party to the Purchase and Sale Agreement dated as of
February 28, 1997 (the "Purchase Agreement") by and among the Company, the
Purchaser, Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx pursuant to
which the Company wishes to purchase from the Purchaser and the Purchaser is the
owner of and wishes to sell to the Company the real property known as and
numbered 0 Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
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shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
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Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.01 par value, of the Company.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
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or any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" means the Purchaser or any person holding Registrable
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Securities to whom the rights under this Agreement have been transferred in
accordance with Section 2.6 hereof.
"REGISTRABLE SECURITIES" means the Common Stock issued to the
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Purchaser pursuant to the Purchase Agreement; provided, however, that such
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shares of Common Stock shall only be treated as Registrable Securities if and so
long as they have not been registered or sold to or through a broker or dealer
or underwriter in a public distribution or a public securities
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transaction and the registration rights with respect to such shares have not
terminated pursuant to Section 2.7.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to the
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filing of a registration statement with the Commission under the Securities Act
and such registration statement's becoming effective under the Securities Act.
"REGISTRATION EXPENSES" shall mean all expenses incurred in complying
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with Sections 2.1 hereof, including without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expenses of any special audits incident to or required by any such registration,
except underwriting discounts, selling commissions and stock transfer taxes
applicable to securities registered by the Holder and fees and disbursement of
counsel, if any, for the Holder.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
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any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. REGISTRATION.
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2.1 PIGGY-BACK REGISTRATION.
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(a) Notice of Registration. If at any time or from time to time the
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Company shall decide to register any of its Common Stock, either for its own
account or the account of a stockholder or stockholders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Rule 145 transaction, the Company will:
(i) promptly give to the Holder written notice thereof, and
(ii) subject to the limitations set forth below, include in such
registration (and any related qualification under Blue sky laws or
other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests
given to the Company by the Holder within five days after the Company
gives such written notice.
(b) Underwriting. If the registration of which the Company gives notice is
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for a registered public offering involving an underwriting, the Company shall so
advise the Holder as a part of the written notice given pursuant to Section
2.1(a)(i). In such event, the right of the Holder to registration pursuant to
Section 2.1 shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting
shall be limited to the extent provided herein.
The Company shall, together with the Holder and any other holders of Common
Stock proposing to distribute their securities through such underwriting, enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by
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the Company. If the managing underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all stockholders requesting to be
included in the registration and underwriting and the number of shares of
Registrable Securities and other shares of Common Stock that may be included in
the registration and underwriting, if any, shall be allocated among the Holder
and all other holders of Common Stock requesting to be included in the
registration and underwriting in proportion, as nearly as practicable, to the
respective amounts of Common Stock held by each of them at the time of the
filing of the registration statement. No Registrable Securities or other shares
of Common Stock excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If the Holder
disapproves of the terms of the underwriting, he may elect to withdraw therefrom
by written notice to the Company.
(c) Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it under this Section 2.1
prior to the effectiveness of such registration whether or not the Holder has
elected to include securities in such registration.
2.2 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
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connection with all registrations pursuant to Section 2.1 shall be borne by the
Company.
2.3 REGISTRATION PROCEDURE. In the case of each registration effected by
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the Company pursuant to this Agreement, the Company will keep the Holder advised
as to the initiation of such registration and as to the completion thereof. The
Company will:
(a) Prepare and file with the Commission a registration statement and such
amendments and supplements as may be necessary and use its best efforts to cause
such registration statement to become and remain effective for at least 90 days
or until the distribution described in the registration statement has been
completed, whichever first occurs;
(b) Furnish to the Holder such reasonable number of copies of the
registration statement, preliminary prospectus and final prospectus as he may
request.
(c) Furnish to the Holder (i) an opinion of counsel for the Company, dated
the effective date of the registration statement, and (ii) a "comfort" letter
signed by the independent public accountants who have certified the Company's
financial statements included in the registration statement, covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and (in the case of the accountants' letter)
with respect to events subsequent to the date of the financial statements, as
are customarily covered (at the time of such registration) in opinions of the
Company's counsel and in accountants' letters delivered to the underwriters in
underwritten public offering of securities;
(d) Cause all such Registrable Securities registered pursuant hereto to be
listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed.
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2.4 INDEMNIFICATION.
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(a) The Company will indemnify the Holder, and each person controlling the
Holder within the meaning of Section 15 of the Securities Act, with respect to
which registration has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by the
Company of the Securities Act, the Exchange Act, state securities law or any
rule or regulation promulgated under such laws applicable to the Company in
connection with any such registration, and the Company will reimburse the Holder
and each person controlling the Holder, for any legal and any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by the Holder or such
controlling person, and stated to be specifically for use therein.
(b) The Holder will, if Registrable Securities held by the Holder are
included in the securities as to which such registration is being effected,
indemnify the Company, each of its directors and officers, each person who
controls the Company within the meaning of Section 15 of the Securities Act, and
each other holder of the Company's securities covered by such a registration
statement, each of its officers, directors and partners and each person
controlling such holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or 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, and will reimburse the
Company, such holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating or defending any such
claim, loss, damage, liability or action, but only to the extent that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with information furnished to the
Company by the Holder in an instrument duly executed by the Holder expressly for
use in such registration. Notwithstanding the foregoing, the liability of the
Holder under this Section 2.4(b) shall be limited in an amount equal to the net
proceeds of the shares sold by the Holder.
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(c) Each party entitled to indemnification or contribution under this
Section 2.4 (the "Indemnified Party") shall give notice to the party required to
provide indemnification or contribution (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity or contribution may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
provide relieve the Indemnifying Party of its obligations under this Agreement
unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further that the
Indemnifying Party shall not assume the defense for matters as to which there is
a conflict of interest or there are separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (whose consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
2.5 INFORMATION BY HOLDER. The Holder shall furnish to the Company such
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information regarding the Holder, the Registrable Securities and the
distribution proposed by the Holder as the Company may reasonably request in
writing and as shall be required in connection with any registration referred to
in this Agreement.
2.6 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
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register securities granted to the Holder under Sections 2.1 may not be assigned
to a transferee or assignee except with the prior written consent of the Company
and no such transfer or assignment will be effective unless the transferee or
assignee agrees in writing to be bound by the provisions of this Agreement.
2.7 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant to
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Sections 2.1 of this Agreement shall terminate automatically effective on the
first date when the Registrable Securities are eligible for resale by the Holder
pursuant to Rule 144 under the Securities Act.
3. AMENDMENT. Any provision of this Agreement may be amended or the
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observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the Holder. Any amendment or waiver effected in accordance with
this Section 3 shall be binding upon each party to this Agreement and each
transferee of securities subject to this Agreement.
4. GOVERNING LAW. This Agreement shall be governed in all respects by
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the internal laws of the Commonwealth of Massachusetts without regard to
conflict of laws provisions.
5. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
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understanding and agreement among the parties regarding the matters set forth
herein. Except as otherwise
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expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon the successors, assigns, heirs, executors and administrators
of the parties hereto.
6. NOTICES, ETC. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by certified mail,
postage prepaid, or delivered by facsimile transmission, by hand or by
messenger, addressed:
(a) if to a Holder, to Thouria Investment Trust, 00 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, ATTN: Xxxxxx X. Xxxxxxxxx, or at such other
address as such Holder shall have furnished to the Company, with a copy to
Xxxxx Xxxxxx, Esq.
Old Central Wharf
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax (000) 000-0000
(b) if to the Company, to:
ADE Corporation
00 Xxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
or at such other address as the Company shall have furnished to the Holders,
with a copy to:
Warner & Xxxxxxxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxx, Xx., Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if in
writing and delivered personally or by facsimile transmission, or, if sent by
mail, postage pre-paid, at the earlier of its receipt or three days after the
same has been deposited in a regularly maintained receptacle for the deposit of
the United States mail, addressed and mailed as aforesaid. Any party may change
by such notice the address to which notices to it are to be addressed.
7. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ADE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
___________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
THOURIA INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
___________________________
Xxxxxx X. Xxxxxxxxx, Trustee
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