Exhibit 10.23
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METRON SEMICONDUCTORS EUROPA B.V.
INVESTOR RIGHTS AGREEMENT
JULY 6,1995
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TABLE OF CONTENTS
PAGE
1. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Company Registration . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.3 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.4 Obligations of the Company . . . . . . . . . . . . . . . . . . . . . . . .4
1.5 [intentionally omitted]. . . . . . . . . . . . . . . . . . . . . . . . . .5
1.6 Expenses of Registration . . . . . . . . . . . . . . . . . . . . . . . . .5
1.7 Furnish Information. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.8 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.9 Reports Under Exchange Act . . . . . . . . . . . . . . . . . . . . . . . .7
1.10 Assignment of Registration Rights. . . . . . . . . . . . . . . . . . . . .8
1.11 Limitations on Subsequent Registration Rights. . . . . . . . . . . . . . .8
1.12 "Market Stand-off" Agreement . . . . . . . . . . . . . . . . . . . . . . .8
1.13 Delay of Registration. . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.14 Termination of Registration Rights . . . . . . . . . . . . . . . . . . . .8
2. RIGHT OF FIRST REFUSAL AND FIRST OFFER. . . . . . . . . . . . . . . . . . . . .9
2.1 "New Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.2 Notice of Proposed Issuance. . . . . . . . . . . . . . . . . . . . . . . .9
2.3 Sale of New Securities . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.4 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.5 Termination of Right of First Refusal. . . . . . . . . . . . . . . . . . 10
3. CO-SALE RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Sales by an Investor . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Exempt Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Prohibited Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Termination of Co-Sale Rights. . . . . . . . . . . . . . . . . . . . . . 12
3.6 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. COMPANY RECORDS AND POLICY. . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i.
5.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.3 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.4 Notices, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.5 Amendments; Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.6 Delays or Omissions. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii.
METRON SEMICONDUCTORS EUROPA B.V.
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT is made as of the 6th day of July, 1995,
by and among Metron Semiconductors Europa B.V., a corporation organized and
existing under the laws of The Netherlands (the "Company"), and the investors
listed on the Schedule of Investors attached hereto as Schedule A (the
"Investors").
RECITALS
A. That certain Agreement and Plan of Reorganization (the
"Reorganization Agreement") dated as of April 3, 1995 calls for the Company and
the Investors to enter into this Investor Rights Agreement granting to the
Investors the rights set forth herein.
B. As of the date of this Agreement, the Company has an authorized
share capital of One Million Dutch Guilders (NLG 1,000,000) divided in ten
million shares with a par value of NLG 0.10 per share each. Upon consummation
of the transactions contemplated by the Reorganization Agreement, the issued
share capital of the Company is approximately NLG 292,193 divided into 2,921,930
shares.
C. In entering into this Agreement, the parties have assumed that any
initial public offering of the Company's shares will take place principally in
the United States of America, and be registered under the Securities Act of
1933, as amended.
D. The unofficial English translations of the current Articles of
Association of the Company and of the proposed Articles of Association of the
Company which each contain further restrictions applicable to the Company's
shares, are attached hereto as Exhibits A and B, respectively.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth herein, the parties agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended;
(b) "FORM S-3" shall mean such form under the Securities
Act as in effect on the date hereof or any successor form promulgated by the SEC
(including Form F-3 and its successors);
1.
(c) "HOLDER" shall mean any person who is the legal
owner of Registrable Securities which have not previously been registered under
the Securities Act and sold, but only if such person is an Investor or an
assignee or transferee thereof in accordance with Section 1.10 hereof. For all
purposes of this Agreement, the Company and the other parties hereto are
expressly authorized to treat those persons registered in the Shareholders'
Register as the legal owners of the Company's shares;
(d) "QUALIFIED INITIAL PUBLIC OFFERING" shall mean the
first public offering of the Company's shares in the United States, registered
under the Securities Act and involving net proceeds to the Company of more than
US$7,500,000 and a gross offering price of at least US$8.00 per share with a par
value of NLG 0.10 each (as adjusted from time to time to reflect stock splits,
stock dividends, recapitalizations, combinations or the like);
(e) The terms "REGISTER", "REGISTERED" and
"REGISTRATION" shall mean a registration effected through the preparation and
filing of a registration statement or similar document in compliance with the
Securities Act;
(f) "REGISTRABLE SECURITIES" shall mean any and all
Shares issued and outstanding immediately after the closing of the
reorganization pursuant to the Reorganization Agreement and the shares or other
securities of the Company issued in a stock split or reclassification of, or a
stock dividend or other distribution on or in substitution or exchange for, or
otherwise in connection with, the Shares, or the shares or other securities of
the Company or other entity issued in a merger or consolidation involving the
Company or a sale of all or substantially all of the Company's assets; excluding
in all cases, however, any Registrable Securities sold by a person in a
transaction in which rights under this Section 1 are not assigned;
(g) "REGISTRATION EXPENSES" shall mean all expenses
incurred by the Company in effecting any registration pursuant to this
Agreement, 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, the expense of any special audits
incident to or required by any such registration and fees and disbursements of
counsel for the underwriter or underwriters of such securities (if the Company
is required to bear such fees and disbursements);
(h) "SECURITIES ACT" shall mean the Securities Act of
1933, as amended;
(i) "SEC" shall mean the Securities and Exchange
Commission;
(j) "SELLING EXPENSES" shall mean the fees and
disbursements of counsel and accountants for the Holders, all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
securities registered by the Holders and any other expenses incurred by the
Holders not expressly included as a Registration Expense.
(k) "SHARES" shall mean the shares of the Company with a
par value of NLG 0.10 each held by Investors as of the date hereof.
2.
1.2 COMPANY REGISTRATION.
(a) If the Company shall determine to issue new shares
in its share capital and to register those shares, upon issue, for its own
account in connection with an underwritten offering, including a Qualified
Initial Public Offering, on a form which would permit the registration of
Registrable Securities, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under applicable blue sky laws) and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20) days after mailing or personal delivery of
such written notice from the Company, by any Holders, except as set forth in
Section 1.2(b); provided, however, that nothing herein shall prevent the Company
from, at any time, abandoning or delaying any such registration initiated by it.
(b) UNDERWRITING. If the registration of which the
Company gives notice is for a Qualified Initial Public Offering, the Company
shall so advise the Holders as a part of the written notice given pursuant to
Section 1.2(a) (i). The right of any Holder to registration pursuant to this
Section 1.2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Shares through such underwriting shall (together with the Company) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 1.2, if the underwriter determines that
inclusion of Registrable Securities by the selling Holders would adversely
affect the marketing of such proposed offering, the number of Registrable
Securities of such Holders to be included in the registration and underwriting
may be reduced or may be excluded entirely from such registration and
underwriting by the Company. The Company shall so advise all Holders whose
securities would otherwise be registered and underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders requesting
inclusion in such registration in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at the time of
filing the registration statement. If any Holder disapproves of the terms of
any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration and shall not
be sold or otherwise transferred prior to one hundred eighty (180) days after
the effective date of the registration statement relating thereto.
1.3 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders a written request or requests that the Company effect
a registration on Form S-3 for a public offering of at least 125,000 Registrable
Securities (as adjusted from time to time to reflect stock splits, stock
dividends, recapitalizations, combinations or the like), and the Company is
entitled to use Form S-3 to register the Registrable Securities for such an
offering, the Company will:
3.
(a) promptly give written notice of the proposed
registration to all
other Holders; and
(b) as soon as practicable, effect such registration to
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
twenty (20) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 1.3: (i) if
the Company has, within the twelve (12) month period preceding the date of such
request, already effected one (1) registration on Form S-3 for any Holder or
Holders pursuant to this Section 1.3; (ii) if the Company has, within the one
hundred eighty (180) days preceding the date of such request, completed its
first registered offering to the public for its own account; (iii) if the
Company shall furnish to the requesting Holders a certificate signed by one or
more Managing Directors of the Company stating that, in the good faith judgment
of a majority of the members of the Supervisory Board of the Company, it would
be seriously detrimental to the Company and its shareholders for such Form S-3
registration statement to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
for a period of not more than one hundred thirty (130) days after receipt of the
request of the Holder or Holders under this Section 1.3, provided that the
Company shall not utilize this right more than once in any twelve (12) month
period.
Subject to the foregoing, the Company shall file a registration statement
covering the Registrable Securities so requested to be registered as soon as
practicable after receipt of the request or requests of the Holders.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously and as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and, upon the request
of the Holders or a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days or until the Holder or Holders have completed the distribution
described in the registration statement, whichever first occurs.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for the same time period as
under Section 1.4(a).
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
4.
(d) In the event of any underwritten public offering,
use reasonable best efforts to perform its obligations under such underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also use
reasonable best efforts to perform his, her or its obligations under such
agreement.
(e) The Company and the Holders shall each comply with
all requirements of and pursuant to the Dutch Act on the Supervision of the
Securities Trade and shall instruct the underwriters to comply with such
requirements.
(f) Use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating Holders
may reasonably request in writing within 120 days following the original filing
of such registration statement, except that the Company shall not for any
purpose be required to file a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified.
1.5 [INTENTIONALLY OMITTED].
1.6 EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, filing, qualification or
compliance pursuant to this Section 1 shall be borne by the Company. All
Selling Expenses relating to securities registered by the Holders shall be borne
by the Holders. However, the Company shall not be required to pay Registration
Expenses for any registration begun pursuant to Section 1.3, the request for
which has been subsequently withdrawn by the initiating Holders, in which case,
such Registration Expenses shall be borne by the Holders requesting such
withdrawal.
1.7 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities and qualification under applicable state
securities or blue sky law.
1.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder of Registrable Securities included in a
registration statement pursuant to the provision of this Section 1 (excluding
Holders who are then Managing Directors or Supervisory Directors of the
Company), each of the officers, directors and partners of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon: (i) any untrue statement or alleged untrue statement
of a material fact contained
5.
in such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto; (ii)
the omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act, any state
securities law or the Dutch Act on the Supervision of the Securities Trade in
connection with the offer or sale of the shares Included in the registration
statement; and the Company will reimburse each such Holder, officer or
director, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 1.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability,
oraction if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
officer or director, underwriter or controlling person.
(b) To the extent permitted by law, each Holder of
Registrable Securities which are included in a registration pursuant to the
provisions of this Section 1 will indemnify and hold harmless the Company, each
of its Managing Directors and Supervisory Directors, each person, if any, who
controls the Company within the meaning of the Securities Act, each underwriter
(within the meaning of the Securities Act) of the Company's securities covered
by such a registration statement, any person who controls such underwriter, and
any other Holder selling securities in such registration statement and each of
its directors, officers or partners or any person who controls such Holder,
against any losses, claims, damages, or liabilities (joint or several) to which
the Company or any such underwriter, other Holder, director, officer or
controlling person may become subject under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Holder of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act, any state securities law or the
Dutch Act on the Supervision of Securities Trade in connection with the offer or
sale of the shares included in the registration statement, provided that in the
case of (i) and (ii) above the indemnification obligation of such Holder shall
only be to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration, and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such underwriter, other
Holder, Managing Director, Supervisory Director, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liabiity, or action; provided, however, that the indemnity agreement contained
in this Section 1.8(b) shall not apply to amounts paid in
6.
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under
this Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.8, notify the
indemnifying party in writing of the commencement thereof, and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, if the defendants in any action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, or if there is
a conflict of interest which would prevent counsel for the indemnifying party
from also representing the indemnified party, the indemnified party or parties
shall have the right to select separate counsel to participate in the defense of
such action on behalf of such indemnified party or parties. 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 pursuant to the provisions of paragraph (a) or (b) above for
any legal or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the proviso of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice of the
commencement of the action or (iii) the indemnifying party has authorized
theemployment of counsel for the indemnified party at the expense of the
indemnifying party. The failure of any indemnified party to notify an
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of liability to the indemnified party under this Section 1.8
only to the extent that such failure to give notice shall materially prejudice
the indemnifying party in the defense of any such claim or any such litigation,
but the omission so to notify the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.8.
1.9 REPORTS UNDER EXCHANGE ACT. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) from and after such time as it has securities
registered pursuant to Section 12 of the Exchange Act, or has securities
registered pursuant to the Securities Act, make timely filing of such reports as
are required to be filed by it with the SEC so that Rule 144 or Form S-3 under
the Securities Act or any successor provision thereto will be available to the
Holders who are otherwise able to take advantage of the provisions of such Rule
or Form;
(b) as applicable, furnish to any Holder so long as the
Holder owns any Registrable Securities, forthwith upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of
the Securities Act and the Exchange Act (at any
7.
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company with the SEC and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee of all Registrable Securities
held by the transferor or assignor, provided that the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned and such transferee or
assignee agrees in writing to be bound by the terms of this Agreement; provided,
however, that such assignment of rights shall be effective only if immediately
following such transfer the Registrable Securities so transferred or assigned
continue to constitute "restricted securities" (as defined in Rule 144 under the
Securities Act) in the hands of such transferee or assignee.
1.11 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder to include such securities in any registration filed under Section 1.2 or
1.3 hereof, unless under the terms of such agreement such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his or her securities will not reduce the amount of the
Registrable Securities of the Holders which is included.
1.12 "MARKET STAND-OFF" AGREEMENT. If requested by the Company,
or an underwriter of Shares (or other securities) of the Company, each Holder
hereby agrees that it will not sell or otherwise transfer or dispose of any
Registrable Securities, except Shares included in such registration, during the
one hundred eighty (180) day period following the effective date of a
registration statement of the Company filed under the Securities Act.
In order to enforce the foregoing covenant and to the extent permissible
under applicable laws, the Company may impose stop-transfer instructions with
respect to the Registrable Securities of each Holder (and the shares or
securities of every other person subject to the foregoing restriction) until the
end of such 180-day period.
1.13 DELAY OF REGISTRATION. Subject to applicable law, no
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Section
1.
1.14 TERMINATION OF REGISTRATION RIGHTS. The right of any
Holder to exercise any right provided under Section 1.2 or 1.3 shall terminate
after three (3) years following the consummation of the sale of securities
pursuant to a registration statement filed by the Company under the Securities
Act in connection with the initial firm commitment underwritten offering of
8.
its securities to the general public, or such earlier date as all shares of
Registrable Securities held by such Holder may immediately be sold under Rule
144 or any successor provision during any 90-day period.
2. RIGHT OF FIRST REFUSAL. The Company hereby grants to each
Investor the right of first refusal to purchase its pro rata share of any New
Securities (as defined in Section 2.1) that the Company may, from time to time
propose to issue - only if the statutory pre-emptive rights under Section 206(a)
of Book 2 of the Dutch Civil Code have been excluded by a resolution of the
General Meeting of Shareholders or, if the Supervisory Board has been designated
to resolve upon the issuance of shares, by resolution of the Supervisory Board
of the Company - or propose to sell, in case the Articles of Association require
shareholders' approval for the transfer of shares, only if such sale has been
approved by a resolution of the General Meeting of Shareholders, and in case the
Articles of Association provide for pre-emptive rights for the transfer of
shares held by the Company in its own capital, only if such pre-emptive rights
have been excluded by a resolution of the General Meeting of Shareholders or, if
the Supervisory Board has been designated to resolve upon the issuance of
shares, by resolution of the Supervisory Board. An Investor's pro rata share,
for purpose of this right of first refusal, is the ratio of the number of Shares
legally owned by such Investor immediately prior to the issuance of New
Securities to the total number of Shares legally owned by all of the Investors
immediately prior to the issuance of New Securities. This right of first
refusal shall be subject to the following provisions:
2.1 "NEW SECURITIES". "New Securities" shall mean any shares
of the Company, whether or not now authorized, and rights, options or warrants
to purchase such shares, and securities of any type whatsoever that are or may
become convertible into shares of the Company; provided, however, that the term
"New Securities" shall not include (i) securities issued pursuant to the
Reorganization Agreement or issued prior to the date of this Agreement, (ii)
securities issued pursuant to the acquisition of another business entity or
business segment of any such entity by the Company by merger, purchase of
substantially all the assets of such entity or business segment or other
reorganization, (iii) securities issued to officers, directors, employees or
consultants of or to the Company pursuant to any stock option, stock purchase or
stock bonus plan, agreement or arrangement approved by the Managing Board or
Supervisory Board of the Company, (iv) securities issued in any public offering
which is firmly underwritten, (v) securities issued in connection with any stock
split, stock dividend or recapitalization of the Company, and (vi) any right,
option or warrant to acquire any security convertible into the securities
excluded from the definition of New Securities pursuant to subsections (i)
through (v) above.
2.2 NOTICE OF PROPOSED ISSUANCE. In the event the Company
proposes to undertake an issuance or sale of New Securities, it shall give each
Investor written notice of its intention, describing the type of New Securities,
their price and the general terms upon which the Company proposes to issue such
New Securities. Each Investor shall have twenty (20) days after any such notice
is delivered to exercise its option to purchase up to its pro rata portion of
such New Securities at the price and upon the terms specified in the notice by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased.
9.
2.3 SALE OF NEW SECURITIES. In the event the Investors fail to
exercise fully the right of first refusal and first offer within said twenty
(20) day period, the Company shall have ninety (90) days thereafter to sell or
issue or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within sixty (60) days from the date
of such agreement) to sell or issue the New Securities respecting which the
Investors' right of first refusal set forth in this Section 2 is not exercised,
at a price and upon terms no more favorable to the purchasers thereof than are
specified in the Company's notice to Investors pursuant to Section 2.2. In the
event the Company has not sold the New Securities within the foregoing period,
the Company shall not thereafter issue or sell any New Securities without first
again offering such securities to the Investors in the manner provided in
Section 2.2 above.
2.4 ASSIGNMENT. The rights granted by the Company pursuant to
this Section 2 may be assigned by any Investor to a transferee or assignee of
not less than all of the Shares held by such Investor, provided that such
assignment may otherwise be effected in accordance with applicable securities
laws and that the Company is given written notice at the time of said assignment
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such rights are being assigned, and such
transferee or assignee agrees in writing to be bound by the terms and conditions
of this Agreement.
2.5 TERMINATION OF RIGHT OF FIRST REFUSAL. The right of first
refusal granted under this Section 2 shall terminate upon the effectiveness of
the first registration statement filed by the Company involving a Qualified
Initial Public Offering.
3. CO-SALE RIGHTS.
3.1 SALES BY AN INVESTOR.
(a) Except as otherwise provided in this Section 3,
in the event that any Investor proposes to sell or transfer all or any of the
Shares then held by such Investor (a "Selling Investor") to any non-Investor
(other than the Company), such Selling Investor shall promptly give written
notice (the "Co-Sale Notice") simultaneously to the Company and each Investor
at least twenty (20) days prior to the closing of such sale or transfer. The
Co-Sale Notice shall describe the proposed sale or transfer in reasonable
detail including, without limitation, the number of Shares to be sold or
transferred, the consideration to be paid, and the name and address of each
prospective purchaser or transferee.
(b) Each Investor shall have the right, exercisable upon
written notice to the Selling Investor within fifteen (15) days after receipt of
the Co-Sale Notice, to participate in such sale of Shares to the extent set
forth in Section 3.1 (c) on the same terms and conditions as are set forth in
the Co-Sale Notice. To the extent that one or more of the Investors exercises
such right of participation, the number of shares that the Selling Investor may
sell in the transaction shall be correspondingly reduced. Each Investor who
elects to participate in such sale is referred to herein as a "Participant."
(c) Each Investor may sell up to such Investor's pro
rata portion of the number of Shares offered for sale by the Selling Investor.
An Investor's pro rata portion for purposes of this co-sale right is determined
by multiplying (i) the number of Shares to be sold by
10.
the Selling Investor by (ii) a fraction, the numerator of which is the number
of Shares held by such Investor and the denominator of which is the sum of
the number of Shares held by the Selling Investor and by all other Investors.
(d) To the extent that any prospective purchaser or
purchasers refuses to purchase shares from a Participant in connection with the
exercise of his or its rights of co-sale hereunder, the Selling Investor shall
not sell to such prospective purchaser or purchasers any Shares unless, prior to
or simultaneously with such sale, the Selling Investor purchases such Shares
from Participant.
(e) Any sale of shares covered by the Co-Sale Notice and
any sale of shares by a Selling Investor exercising its co-sale right pursuant
to such Co-Sale Notice shall be consummated, other than compliance with the
share transfer restrictions in the Articles of Association of the Company and
with the formal requirements of Netherlands law to effect the transfer of such
Shares, within sixty (60) days after delivery of the Co-Sale Notice and shall be
on terms and conditions no more favorable to the Selling Investor than the terms
specified in the Co-Sale Notice. Any sale of such Shares after such 60-day
period shall again be subject to the obligations set forth in Sections 3.1(a)
through (e). Each such sale shall constitute a separate transaction between the
Participant and the Selling Investor on the one hand and the purchaser(s) on the
other hand.
(f) The exercise or non-exercise of the rights of any
Investor hereunder to participate in one or more sales of Shares made by any
Investor shall not adversely affect such Investor's rights to participate in
subsequent sales of Shares subject to this Section 3.1.
3.2 EXEMPT TRANSFERS.
(a) Notwithstanding any other provision of this
Agreement, the provisions of Section 3.1 shall not apply to:
(i) any pledge of Shares made pursuant to a bona
fide loan transaction that creates a mere security interest including the
foreclosure of any such pledge;
(ii) any transfer to an Investor's ancestors,
descendants or spouse, or to trusts for the benefit of such persons or such
Investor; or
(iii) any bona fide gift;
provided that the Investor making an exempt transfer pursuant to this Section
3.2(a) shall provide the other Investors and the Company with prior written
notice of the transfer, and the proposed transferee shall furnish the Investors
with a written agreement to be bound by and comply with all provisions of this
Agreement, such that the transferee shall be treated as a "Investor" for
purposes of this Section 3 with respect to the shares received in the exempt
transfer.
(b) Notwithstanding any other provision of this
Agreement, the provisions of Section 3.1 shall not apply to any sale of Shares
(i) to the public pursuant to a registration statement filed with, and declared
effective by, the SEC under the Securities Act, (ii)
11.
in connection with a merger, exchange offer or tender offer pursuant to which
all shareholders of the Company are given the opportunity to sell or exchange
their shares or (iii) pursuant to the terms of that certain Buy and Sell
Agreement of even date herewith and that certain Stock Repurchase Agreement
dated as of November 14, 1994.
3.3 PROHIBITED TRANSFERS.
In the event a Selling Investor sells any Shares in
violation of the terms of this Agreement (a "Prohibited Transfer"), each
Investor, in addition to such other remedies as may otherwise be available,
shall have the right, subject to compliance with the terms of the Articles of
Association of the Company, to sell to the Selling Investor the type and number
of Shares equal to the number of shares each Investor would have been entitled
to transfer to the purchaser under Section 3.1(c) had the Prohibited Transfer
been effected in compliance with the terms hereof. Such sale shall be made on
the following terms and conditions:
(a) The price per share at which the shares are to be
sold to the Selling Investor shall be equal to the price per share paid by the
purchaser to the Selling Investor in the Prohibited Transfer. The Selling
Investor shall also reimburse each Investor for any and all fees and expenses,
including legal fees and expenses, incurred pursuant to the exercise or the
attempted exercise of the Investor's rights under Section 3.1.
(b) Within thirty (30) days after the earlier of the
dates on which the Investor (A) received notice of the Prohibited Transfer or
(B) otherwise became aware of the prohibited Transfer, each Investor shall, if
exercising the option created hereby, transfer to the Selling Investor the
Shares to be sold in accordance with requirements of Netherlands law and in such
event the Selling Investor shall buy and accept the aforementioned Shares.
(c) The Selling Investor shall, upon receipt of the
Shares to be sold by an Investor pursuant to this Section 3.3, pay the aggregate
purchase price therefor and the amount of reimbursable fees and expenses
determined pursuant to paragraph (a) in cash or by other means acceptable to the
Investor.
3.4 ASSIGNMENT. The rights of any Investors under this Section
3 may be assigned only to an assignee or transferee of all of the Shares held by
such Investor, provided that such assignment may otherwise be effected in
accordance with applicable securities laws and that the Company is given written
notice at the time of said assignment stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
rights are being assigned and such transferee or assignee agrees in writing to
be bound by the terms and conditions of this Agreement.
3.5 TERMINATION OF CO-SALE RIGHTS. The rights of co-sale
granted under this Section 3 shall terminate upon the effectiveness of the first
registration statement filed by the Company involving a Qualified Initial Public
Offering.
3.6 WAIVER. With respect to a transfer or sale of shares by a
party to this Agreement which complies with the provisions of this Agreement and
to the extent that the Company's Articles of Association require shareholder
approval of the transfer or sale of shares and/or provide shareholders with a
right of first refusal with respect to such sale or transfer, each
12.
of the parties to this Agreement agrees to approve such transfer or sale,
undertakes to waive such right of first refusal and/or vote in favor of
exemption of such transfer or sale from such right of first refusal if
requested by the Company or a party to this Agreement, whether at a
shareholder meeting, by shareholder resolution, shareholders agreement or any
other written instrument and further agrees to execute documents reasonably
requested of them to reflect such approval or waiver.
4. COMPANY RECORDS AND POLICY.
(a) The Managing Board of the Company shall note on the
Register of Shareholders that the Investor's Shares are subject to this
Agreement.
(b) In the event that certificates are issued
representing the Shares, such certificates shall bear the following legend:
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
INVESTORS RIGHTS AGREEMENT BY AND BETWEEN THE
SHAREHOLDER, THE CORPORATION AND CERTAIN HOLDERS OF
SHARES OF THE CORPORATION. COPIES OF SUCH AGREEMENT
MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION.
(c) Any offer, including the prospect to hold out an
offer, issuance, transfer or sale of all Shares is further subject to all
restrictions on transfer imposed by Dutch, Federal and applicable state
securities laws. Accordingly, it is understood and agreed that the certificates
representing the Shares shall bear any legends required by Dutch authorities,
any applicable state securities administrator or commissioner and by Federal
securities law.
(d) Each Investor agrees that the Company may impose
transfer restrictions on the Shares subject to this Agreement to enforce the
provisions of this Agreement. The restrictions shall be removed upon
termination of this Agreement. Upon termination of the Agreement and request by
the Shareholder, the Company shall, if certificates have been issued
representing the Shares, issue a new share certificate without a legend when the
legended certificate has been forwarded to the Company.
5. MISCELLANEOUS.
5.1 GOVERNING LAW. Section 1 of this Agreement shall be
governed in all respects by the laws of the State of California applicable to
contracts entered into and wholly to be performed within California by
California residents. Sections 2, 3, 4 and 5.2 - 5.8 of this Agreement shall be
governed in all respects by the laws of the Netherlands.
5.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the Company and the Investors with respect to the subject matter
hereof and supersedes
13.
all previous agreements and understandings, written or oral, concerning the
subject matter hereof.
5.3 SUCCESSORS AND ASSIGNS. Subject to the exceptions and
requirements specifically set forth in this Agreement, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective heirs, successors, administrators, executors and assigns of the
parties hereto.
5.4 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given upon personal delivery or on the day sent by facsimile
transmission if a true and correct copy is sent the same day by first class
mail, postage prepaid, or by dispatch by an internationally recognized express
courier service, and in each case addressed (a) if to an Investor at the address
set forth on Schedule A hereto, or at such other address as such Investor shall
have furnished to the Company and to the other Investors by ten (10) days'
notice in writing, (b) if to the Company, at its principal office, or at such
other address as the Company shall have furnished to each Holder in writing or
(c) if to a Holder, at the address thereof reflected in the Shareholders
Register of the Company.
5.5 AMENDMENTS; WAIVERS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the written
consent of the Company and of Investors holding at least ninety-five percent
(95%) in interest of the Shares held by all the Investors (including any Shares
issued upon conversion thereof, and including Shares transferred to any assignee
of the right or obligation to be amended). Any Investor may waive any of his,
her or its rights hereunder without obtaining the consent of any other Investor.
Any amendment or waiver effected in accordance with the first sentence of this
Section 5.5 shall be binding upon each holder of any of the Shares, his, her or
its successors and assigns, and the Company. Any waiver effected in accordance
with the second sentence of this Section 5.5 shall be binding upon the waiving
Investor and the successors and assignees of such Investor.
5.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Investor, upon any breach or default of
the Company or any other Investor under this Agreement, shall impair any such
right, power or remedy of such Investor, nor shall it be construed to be a
waiver of any such breach or default, or any acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Investor of any breach or default under
this Agreement, or any waiver on the part of any Investor of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies either under
this Agreement, or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
5.7 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
14.
5.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
15.
SIGNATURE PAGE OF INVESTOR RIGHTS AGREEMENT
IN WITNESS WHEREOF, each of undersigned or their respective duly
authorized officers or representatives have executed this Agreement as of the
date first above written.
METRON SEMICONDUCTORS EUROPA B.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Managing Director
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INVESTORS:
FLUOROWARE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Executive V.P.
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FSI INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. Sand
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Its: Executive V.P. and CFO
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/s/ ▇▇▇ ▇▇▇▇▇▇▇
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16.
