REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 1, 1997, between AMTECH SYSTEMS, INC., an Arizona
corporation (the "Buyer"), and X.X. XXXXXXX MACHINE PRODUCTS CORPORATION, a
Delaware corporation (the "Seller"). All capitalized terms used in this
Agreement and not defined herein shall have the respective meanings ascribed to
them in the Asset Purchase Agreement of even date herewith between the Seller,
Xxxx X. Xxxxxxx, and the Buyer (the "Asset Purchase Agreement").
WHEREAS, pursuant to the Asset Purchase Agreement, the Seller has
agreed to sell, transfer, convey, assign and deliver to the Buyer substantially
all of the assets and business of the Seller;
WHEREAS, in partial consideration therefor, the Asset Purchase
Agreement requires the Buyer to grant to the Seller piggyback registration
rights with respect to certain of the shares of Common Stock to be issued to the
Seller pursuant to Sections 1.3(b) and (c) of the Asset Purchase Agreement.
1. Defined Terms. As used herein, the following capitalized defined
terms shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
Buyer, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Person" shall mean in individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggyback Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a Registration Statement in compliance with the
Securities Act and the declaration or ordering by the SEC of the effectiveness
of such Registration Statement.
"Registrable Securities" shall mean the shares of Common Stock issued
to Seller pursuant to Sections 1.3(b) and 1.3(c) of the Asset Purchase
Agreement, excluding the Registered Shares, and any shares of Common Stock
received by the Seller by way of sub-division of the outstanding shares (by
reclassification, stock split or otherwise); provided, however, that any such
securities shall cease to be Registrable Securities when they have been
Registered under a Piggyback Registration.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Buyer with this Agreement, including but not
limited to (i) all SEC, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws, (iii) all
expenses and disbursements of any Persons in preparing or assisting in
preparing, word processing, duplicating, printing, distribution, messengering
and delivering any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) the reasonable fees and disbursements of counsel for the Buyer,
and (v) the fees and disbursements of the independent public accountants of the
Buyer, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, and transfer taxes,
but excluding underwriting discounts and commissions, if any, relating to the
sale or disposition of Registrable Securities by the Seller.
"Registration Rights Expiration Date" shall mean the earlier of (i)
such time as the Seller may sell, without violation of any provision of the
Securities Act, the Exchange Act or any SEC rule or regulation, under Rule
144(k) within a three-month period all Registrable Securities held by the
Seller, or (ii) such time as all such Registrable Securities issued have been
eligible for a Piggyback Registration and the Seller either has included said
shares or declined to include them in a Piggyback Registration.
"Registration Statements" shall mean a registration statement of the
Buyer pursuant to the provisions of Section 2 hereof, and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the SEC promulgated thereunder.
"Seller" shall mean X.X. Xxxxxxx Machine Products Corporation or Xxxx
X. Xxxxxxx, as the case may be, including any transfer of the Registrable
Securities by X.X. Xxxxxxx Machine Products Corporation to Xxxx X. Xxxxxxx
following the date of this Agreement.
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2. Piggyback Registration.
(a) Notice of Piggyback Registration and Inclusion of
Registrable Securities. If the Buyer at any time after the date of this
Agreement proposes to register any of its Common Stock (other than pursuant to a
registration statement on Form S-4 or Form S-8, or any successor form), whether
or not for sale for its own account, and the registration form to be used may be
used for the registration of the Registrable Securities, the Buyer will (i)
promptly give the Holder written notice thereof, and (ii) include in such
registration (and in any related qualification under blue sky or other state
securities laws), and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the Buyer by the Seller
within 20 calendar days after delivery of such written notice from the Buyer,
provided that the Seller has requested such Piggyback Registration with respect
to any of the Registrable Securities held by the Seller at such time; provided,
however, that if Seller declines to include any of the Registrable Securities
held by it at that time, such shares shall no longer be eligible for inclusion
in any future Piggyback Registration. If the Piggyback Registration is an
underwritten offering, and the underwriter or the Buyer, based upon the advice
of its underwriter(s), in good faith requests in writing, due to market
conditions, that the number of securities covered by the Registration be
reduced, the Buyer may reduce the number of Registrable Securities to be
included in the Piggyback Registration pro rata with the reduction of shares of
Common Stock included with respect to other participants in the Registration
other than the Buyer. Seller may not, by virtue solely of the rights granted to
it in this Agreement, participate in a Piggyback Registration after the
Registration Rights Expiration Date.
(b) Expenses. The Buyer shall pay all Registration Expenses in
connection with each Piggyback Registration pursuant to this Section 2.
(c) Exercise of Registration Rights. The Seller may not
exercise the rights granted hereunder with respect to any of the Registrable
Securities for a period of two years from the date of issuance of such
Registrable Securities.
3. Registration Procedures.
In connection with the registration of any Registrable
Securities under this Agreement, the Buyer shall effect such Registrations
pursuant to the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto shall:
(a) prepare and file with the SEC a Registration Statement
which shall comply as to form in all material respects with the requirements of
the applicable form under the Securities Act and include all financial
statements required by the SEC to be filed therewith,and use its best efforts to
cause such Registration Statement to become effective and remain effective for
six months, provided, however, that such six-month period shall be extended for
a period of time equal to the longest period during which the Seller refrains
from selling any securities included in such Registration at the request of the
underwriter, if any, of such Registration;
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(b) during such period prepare and file with the SEC such
amendments and supplements to 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;
(c) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest practicable time and provide immediate notice to the Seller of the
withdrawal of any such order;
(d) use its best efforts to register and qualify the
securities covered by such Registration Statement under such securities or blue
sky laws and regulations of such jurisdiction as shall be necessary or
appropriate for the distribution of the securities covered by the Registration
Statement, provided that the Buyer shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
(e) furnish to the Seller such number of prospectuses and
other documents incident thereto the Seller from time to time may reasonable
request;
(f) notify the Seller at any time when a Prospectus relating
to a Registration Statement is required to be delivered under the Securities 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 a material fact required to be stated therein
or necessary to make the statements therein not misleading or incomplete in
light of the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such Prospectus shall not include an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing; and
(g) cause all such Registrable Securities registered pursuant
to this Agreement to be listed on each securities exchange on which the same
class of securities issued by the Buyer are then listed.
4. Indemnification; Contribution.
(a) The Buyer agrees to indemnify and hold harmless the
Seller, the directors, officers, employees, subsidiaries and agents of each such
Holder and each Person who controls the Seller within the meaning of the
Securities Act or the Exchange Act (a "Controlling Person"), from and against
any and all losses, claims, damages, liabilities and expenses (including,
without limiting the foregoing but subject to Section 4(c) hereof, the legal and
other expenses incurred in connection with any action, suit or proceeding or any
claim asserted) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Buyer shall have furnished any
amendments or supplements thereto), or arising out of or based upon
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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,
provided that the Buyer shall not be liable in any such case to the Seller to
the extent that such losses, claims, damages, liabilities or expenses arise out
of or are based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon and conformity with information
specifically relating to the Seller, furnished in writing to the Buyer by the
Seller expressly for use in such Registration Statement or Prospectus.
(b) The Seller agrees to indemnify and hold harmless the
Buyer, the directors, officers, employees, subsidiaries and agents of the Buyer
and each Controlling Person, from and against any and all losses, claims,
damages, liabilities and expenses (including, without limiting the foregoing but
subject to Section 4(c) hereof, the legal and other expenses incurred in
connection with any action, suit or proceeding or any claim asserted) arising
out of or based upon any untrue statement made in such Registration Statement or
Prospectus in reliance upon or in conformity with information relating
specifically to such Holder which was furnished in writing to the Buyer by such
Holder expressly for use in such Registration Statement or Prospectus, provided
that such Holder shall not be liable in any such case to the extent that such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or alleged untrue statement or omission
for which such Holder is entitled to indemnification under Section 4(a) hereof.
(c) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any party indemnified under either of paragraphs (a) or (b) above (an
"Indemnified Party"), based upon the Registration Statement or any Prospectus,
or any amendment or supplement thereto, and with respect to which indemnity may
be sought against the party to provide such indemnification (the "Indemnifying
Party"), the Indemnified Party shall promptly notify the Indemnifying Party in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
payment of all reasonable fees and expenses relating thereto. The Indemnified
Party shall have the right to employ separate counsel in any such action or
proceeding and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the Indemnified Party's expense unless (i) the
employment of such counsel has been specifically authorized in writing by the
Indemnifying Party, (ii) the Indemnifying Party has not assumed the defense and
employed counsel reasonably satisfactory to such Indemnified Party within 15
days after notice of any such action or proceeding, or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include both
the Indemnified Party and the Indemnifying Party and such Indemnified Party
shall have been advised by such counsel that there may be one or more legal
defenses available to the Indemnifying Party that are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to assume the defense of such action
or proceeding on behalf of such Indemnified Party, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such action or
separate but substantially similar or related actions arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to all local
counsel which is necessary, in the good faith opinion of counsel for the
Indemnified Party in order to adequately represent the Indemnified Party) for
the Indemnified Party, which firm shall be
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designated in writing by the Indemnified Party and that all such fees and
expenses shall be reimbursed as they are incurred upon written request and
presentation of invoices). The Indemnifying Party shall not be liable for any
settlement of any such action effected without the written consent of the
Indemnifying Party, which cannot be unreasonably withheld, but if settled with
the written consent of the Indemnifying Party or if there is a final judgment
for the plaintiff, the Indemnifying Party agrees to indemnify and hold harmless
such Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. The Indemnifying Party shall not, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which such Indemnified Party is a party
and indemnity has been sought hereunder by such Indemnified Party unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding to which it
is entitled to be indemnified, and may not settle matters as to which the
Indemnified Party is not entitled to indemnification.
(d) If the indemnification provided for in this Section 4 is
unavailable to an Indemnified Party under paragraph (a) or (b) hereof (other
than by reason of the exceptions provided therein) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable to such Indemnified Party as a result
of such losses, claims, damages, liabilities and expenses in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and the Indemnified Party on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party on the one hand and the Indemnified
Party 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 to state a material fact related to information supplied by the
Indemnifying Party on the one hand or by the Indemnified Party on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Buyer and the Seller agree that it would not be just
and equitable if contribution pursuant to this Section 4 were determined by a
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in paragraph (d) above which
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating any claim or defendant in any such action, suit or
proceeding. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) The provisions of this Section 4 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Indemnified Party or any of the officers, directors, employees, agents or
Controlling Persons of such Indemnified Party, and will survive the sale by the
Seller of Registrable Securities.
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5. Miscellaneous.
(a) Amendment; Waivers. This Agreement may not be changed
orally, but (subject to the provisions of this Section 5(a)) only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought. Any term, covenant, agreement or
condition of this Agreement may be amended or compliance therewith may be waived
(either generally or in a particular instance and either retroactively or
prospectively), if the Buyer shall have obtained the consent in writing of the
Seller. The Buyer shall promptly send copies of any request for consent,
amendment or waiver (and any request for any such amendment, consent or waiver)
relating to this Agreement to the Seller.
(b) Notices. All communications provided for hereunder shall
be in writing and sent by telecopy, certified or registered first class mail or
nationwide overnight delivery service (with charges prepaid), addressed to the
Seller at the registered address of the Seller as set forth in the register kept
by the Buyer at its principal office, and if to the Buyer, at its principal
executive offices specified in its most recent report filed with the SEC
pursuant to the Exchange Act or to such other address for purposes hereof as the
Buyer may have designated in writing to the Seller (such notice being effective
on receipt).
(c) Rules 144 and 144A. The Buyer covenants that it will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder (or, if the
Buyer is not required to file such reports, the Buyer shall (i) upon the request
of the Seller of Registrable Securities make publicly available such information
as is necessary to enable the Seller to sell Registrable Securities pursuant to
Rule 144 or (ii) deliver such information to a prospective purchaser as is
necessary to enable the Seller to sell Registrable Securities pursuant to Rule
144A).
(d) Successors and Assigns. All covenants and agreements in
this Agreement shall bind and inure to the benefit of the respective successors,
heirs, personal representatives and assigns of the parties hereto (including,
without limitation, any transferee of the Seller) whether so expressed or not.
(e) Counterparts. This Agreement and any amendments, waivers,
consents, or supplements hereto or hereunder may be executed in any number of
counterparts, and by different parties hereto or thereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective upon the execution and
delivery of a counterpart hereof by each of the parties hereto.
(f) Descriptive Headings. Descriptive headings of sections of
this Agreement are for convenience of reference only and do not constitute a
part of this Agreement.
(g) Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the internal laws of the State of Arizona, without regard to principles of
conflicts of law.
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(h) Independence of Covenants. All covenants hereunder shall
be given independent effect.
(i) Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(j) Satisfaction Requirement. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any party, the determination by such
party of such satisfaction shall be made by such party in its own independent
judgment exercised in good faith.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective duly authorized officers as of the
date first written above.
AMTECH SYSTEMS, INC.
By:
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Name:
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Title:
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X.X. XXXXXXX MACHINE PRODUCTS
CORPORATION
By:
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Name:
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Title:
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