Exhibit 13
STOCK REGISTRATION AND RESTRICTION AGREEMENT
This Stock Registration and Restriction Agreement ("Stock Agreement")
is made and entered into as of October 27, 2004, by and between Xxxxxxx
Technology, Inc. ("Mattson") on the one hand and each holder of securities of
Vortek Industries Ltd. listed on the signature page to this Stock Agreement
(the "Vortek Securityholders") on the other hand. Capitalized terms used but
not specifically defined in this Stock Agreement have the meanings given to
them in the Arrangement Agreement by and between Mattson and Vortek Industries
Ltd. ("Vortek") (as the same may be amended from time to time, the
"Arrangement Agreement").
WHEREAS, subject to the terms and conditions of the Arrangement
Agreement, Mattson will acquire all of the outstanding capital stock and
certain indebtedness of Vortek in exchange for the issuance and delivery (the
"Stock Issuance") of up to an aggregate of one million five hundred thousand
(1,500,000) shares of common stock, $0.001 par value, of Mattson (the "Mattson
Common Shares") allocated among the Vortek Securityholders as specified in the
Arrangement Agreement; and
WHEREAS, among other rights and obligations of the parties set forth
in this Agreement, Mattson desires to impose certain restrictions, and the
Vortek Securityholders desire to obtain certain rights, relating to the sale
and transfer of Mattson Common Shares issued in the Stock Issuance.
NOW, THEREFORE, in consideration of the terms, covenants and
conditions herein, given or made by each party hereto, and other good and
valuable consideration, the receipt and sufficiency of which are is hereby
acknowledged by each party receiving the same, the parties hereto hereby
mutually agree as follows:
1. Exemptions from Securities Law Registration.
(a) Generally. The Stock Issuance will be exempt from
registration under the Securities Act of 1933, as amended (the
"Securities Act"), under any of Regulation S promulgated by the
United States Securities and Exchange Commission ("SEC") under the
Securities Act (the "Regulation S Exemption"), or Rule 506 under
Regulation D promulgated under the Securities Act (the "Regulation D
Exemption"). The Stock Issuance will be exempt from or comply with
applicable securities registration, prospectus delivery or
qualification requirements of Canada and Germany.
(b) Restricted Shares. Xxxxxxx Common Shares issued under
the Regulation S Exemption or the Regulation D Exemption shall be
considered "restricted securities" as defined in Rule 144(a)(3)
promulgated under the Securities Act (the "Restricted Securities"),
and the holders thereof will not re-offer or resell those restricted
securities other than in conformity with the registration
requirements of the Securities Act, or pursuant to Rule 144
promulgated thereunder, or pursuant to another available exemption
from those requirements. Mattson agrees that, prior to the Stock
Issuance, it will deliver written notice to each Vortek
Securityholder identifying the relevant exemption under the
Securities Act applicable to the Mattson Common Shares allocated to
such Vortek Securityholder.
(c) Legends on Stock Certificates. The certificates
evidencing Mattson Common Shares shall bear legends imprinted on the
certificates in accordance with the following provisions to the
extent applicable:
(1) Subject to Section l(c)(3), certificates representing
Mattson Common Shares issued to each Vortek Securityholder
under the Regulation S Exemption or the Regulation D
Exemption shall bear the following restrictive legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED SECURITIES WITHIN THE MEANING OF, AND
HAVE NOT BEEN REGISTERED UNDER, THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OR (ii) A
WRITTEN OPINION OF THE LEGAL COUNSEL REASONABLY
ACCEPTABLE TO THE ISSUER AND FURNISHED AT THE
EXPENSE OF THE HOLDER OF THIS CERTIFICATE THAT SUCH
REGISTRATION IS NOT REQUIRED."
(2) Notwithstanding any other provision set forth above and
subject to Section l(c)(3) all certificates representing
Xxxxxxx Common Shares also shall bear the following
restrictive legend:
"IN ADDITION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO ADDITIONAL CONTRACTUAL
LIMITATIONS ON ANY SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION AS SET FORTH IN THAT CERTAIN STOCK
REGISTRATION AND RESTRICTION AGREEMENT BY AND AMONG
THE ISSUER AND CERTAIN HOLDERS OF SECURITIES OF
VORTEK INDUSTRIES LTD., A COPY OF WHICH IS
AVAILABLE WITHOUT CHARGE FROM THE SECRETARY OF THE
ISSUER AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
ISSUER."
(3) Xxxxxxx is permitted to issue stop transfer orders to its
transfer agent to assure compliance with the legends set
forth above. Certificates representing Xxxxxxx Common Shares
that are reissued for sales in accordance with an effective
registration statement filed pursuant to the Securities Act
or for sales to the public in compliance with Rule 144
promulgated under the Securities Act will not bear the
restrictive legends set forth in Sections in Section
l(c)(l), and no certificates representing Xxxxxxx Common
Shares that are reissued after the expiration of one hundred
twenty (120) days after the Effective Time will bear the
legend set forth in Section 1 (c)(2).
(4) Upon the written request of a holder of any Xxxxxxx Common
Share certificate, Xxxxxxx shall remove the restrictive
legend (i) set forth Section 1 (c)(2) after the expiration
of one hundred twenty (120) days after the Effective Time
and/or (ii) set forth in Section l(c)(l) if such Mattson
Common Shares are freely tradable under Rule 144 promulgated
under the Securities Act.
(d) Investment Representations. Each of the Vortek
Securityholders, individually and not as to others, represents and
warrants to Mattson, that it:
(1) is receiving the Mattson Common Shares for its own account
for investment, and not with a view to any public
distribution thereof within the meaning of the Securities
Act;
(2) has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved
in the Xxxxxxx Common Shares and to make an informed
investment decision with respect to Xxxxxxx Common Shares;
and
(3) either (A) is not a "U.S. Person" within the meaning of Rule
902(g) of Regulation S promulgated under the Securities Act,
or (B) is an "accredited investor" within the meaning of
Rule 501 (a) of Regulation D promulgated under the
Securities Act.
2. Additional Resale Restrictions. In addition to any restrictions imposed
by applicable laws (including without limitation Rule 144 promulgated
under the Securities Act):
(a) Percentage Resale Limitations. Each Vortek
Securityholder agrees on behalf of itself (and not on behalf of any
other Vortek Securityholder) that, during the period beginning from
the date of the Stock Issuance and continuing to and including the
date that is one hundred and twenty (120) calendar days after the
Effective Time, it will not offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise
dispose of any Mattson Common Shares except as follows:
(1) Each Vortek Securityholder may sell a number of Mattson
Common Shares during the first sixty (60) days following the
Effective Time equal to up to 25% of the total Mattson
Common Shares allocable to that Vortek Securityholder
(including in such total those Mattson Common Shares subject
to the Escrow Fund) as provided in the Arrangement Agreement
(such Vortek Securityholder's "Allocated Shares"), provided,
that the number of such Allocated Shares sold in any seven
(7) calendar day period will not exceed one-third (1/3) of
the 25% amount; and
(2) Each Vortek Securityholder may sell up to an additional 25%
of its Allocated Shares after the first sixty (60) days
following the Effective Time and before the date that is one
hundred twenty (120) days after the Effective Time.
(b) No Hedging or Other Indirect Transfers. Each Vortek
Securityholder agrees that the restriction in Section 2(a) prohibits
it from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to or result in a sale or
disposition of the Mattson Common Shares even if such shares would be
disposed of by someone other than the Vortek Securityholder. Such
prohibited hedging or other transactions would include without
limitation any short sale or any purchase, sale or grant of any right
(including without limitation any put or call option) with respect to
any of the Xxxxxxx Common Shares or with respect to any security that
includes, relates to, or derives any significant part of its value
from such shares.
(c) Exceptions for Permitted Transfers. Notwithstanding
anything in this Stock Agreement to the contrary, during the period
that Mattson Common Shares are restricted under Section 2(a), each
Vortek Securityholder may nevertheless transfer its Allocated Shares
issued outside of the Escrow Fund and any interest in Mattson Common
Shares held in the Escrow Fund or any right to receive such Allocated
Shares and such interest in the Escrow Fund (i) as a bona fide gift
or gifts, provided that the donee or donees thereof agree in writing
reasonably satisfactory to Xxxxxxx to be bound by the restrictions
set forth herein, (ii) to any trust for the direct or indirect
benefit of the holder or the immediate family of the holder, provided
that the trustee of the trust agrees in writing reasonably
satisfactory to Xxxxxxx to be bound by the restrictions set forth
herein, and provided, further, that any such transfer will not
involve a disposition for value, or (iii) if the Vortek
Securityholder is a corporation, partnership or similar business or
investment entity, to any affiliate of the holder (not to exceed two
such affiliates per initial Vortek Security holder without Xxxxxxx'x
prior written consent not to be unreasonably withheld or delayed),
provided that the affiliate agrees in writing reasonably satisfactory
to Xxxxxxx to be bound by the restrictions set forth herein and
provided, further, that any such transfer will not involve a
disposition for value (each transferee pursuant to (i), (ii) and
(iii) above a "Permitted Transferee"), If Xxxxxxx Common Shares so
transferred have previously been included in the Registration
Statement (as defined below), the Permitted Transferee will not be
eligible to sell the Xxxxxxx Common Shares pursuant to the
Registration Statement unless the Permitted Transferee is already
named in the prospectus that is part of the Registration Statement,
is not required to be so named under certain SEC policies or Xxxxxxx
amends the Registration Statement to add that Permitted Transferee to
the Prospectus.
(d) When Restrictions End. The restrictions of Sections
2(a), 2(b) and 2(c) automatically cease upon the close of the Nasdaq
National Stock Market (or such other national securities exchange or
automated quotation system upon which shares of Mattson common stock
are listed) on the 120th day following the Effective Time. However,
for the avoidance of doubt, the Vortek Securityholders acknowledge
that they cannot sell Mattson Common Shares held in the Escrow Fund
except to the extent those shares are released from escrow pursuant
to the Escrow Agreement.
(e) No Premature Short Sales of Registered Shares. Each
Vortek Securityholder further agrees that, if any of its Mattson
Common Shares are registered for resale pursuant to Section 4 hereof,
it will not make any short sale of Mattson Common Shares "against the
box" or otherwise before the Registration Statement becomes
effective. Each Vortek Securityholder acknowledges that any such
short sale made prior to an effective registration statement is a
violation of Section 5 of the Securities Act. This restriction
applies notwithstanding any other provision of this Stock Agreement
or any securities law exemptions otherwise referred to herein.
(f) Material Nonpublic Information. Nothing in this Stock
Agreement relieves any Vortek Securityholder or other person from
liability under United States securities laws for engaging in any
sales or purchases of Mattson securities while that person is aware
of any material nonpublic information about Xxxxxxx. Any persons
deemed to be affiliates of Xxxxxxx agree not to sell any shares of
Xxxxxxx Common Shares in violation of the foregoing laws or in
violation of the trading windows that Xxxxxxx establishes from time
to time (and nothing in this Stock Agreement relieves any such
affiliate from such restrictions).
3. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Restricted Securities to the public without registration, Mattson agrees
separately with each Vortek Securityholder to:
(a) Make and keep adequate current public information
available as those terms are defined in Rule 144(c) under the
Securities Act, at all times after the Effective Time and until all
Mattson Common Shares have been resold by the Vortek Securityholder
or are eligible to be resold by that Vortek Securityholder pursuant
to Rule 144(k);
(b) So long as a Vortek Securityholder owns any Restricted
Securities, furnish to the Vortek Securityholder forthwith upon
request a written statement by Mattson as to its compliance with the
public information requirements of Rule 144(c).
4. Registration Rights.
(a) Filing and Effectiveness. Xxxxxxx shall use its
commercially reasonable efforts to prepare and file, on the first
business day following the Effective Time, a registration statement
on Form S-3 (including any preliminary or final prospectus, exhibit,
supplement or amendment, the "Registration Statement") for an
offering to be made on a continuous basis pursuant to Rule 415
promulgated under the Securities Act by the Vortek Securityholders
and any Permitted Transferee that a Vortek Securityholder has
identified in a written notice delivered to Mattson at least two (2)
days prior to the filing of such Registration Statement, covering all
of the Xxxxxxx Common Shares other than those Xxxxxxx Common Shares
deposited in the Escrow Fund (the "Registrable Shares"). After the
filing of the Registration Statement, Xxxxxxx will use its
commercially reasonable efforts to cause the SEC to declare the
Registration Statement effective under the Securities Act as promptly
as possible within the rules, regulations and policies of the SEC and
applicable United States securities laws, and otherwise use all
commercially reasonable efforts to make a request for acceleration of
effectiveness after filing a Form 8-K with required financial
statement information so that the Registration Statement becomes
effective as promptly as possible after the Effective Time. Mattson
agrees to notify each Vortek Securityholder promptly upon the
Registration Statement, and any post-effective amendment thereto,
being declared effective by the SEC. The parties acknowledge that one
of the factors impacting Xxxxxxx'x ability to file the Form 8-K is
Vortek's delivery of audited financials prepared in accordance with
United States generally accepted accounting principles and the rules
and regulations of the United States Securities and Exchange
Commission.
(b) Period of Effectiveness. Xxxxxxx agrees to use its
commercially reasonable efforts to prepare and file with the SEC such
amendments and supplements to the Registration Statement and the
prospectus incorporated therein (the "Prospectus") and take such
other action, if any, as may be necessary to keep the Registration
Statement effective and notify each Vortek Securityholder and each
Permitted Transferee named in the Registration Statement of the
happening of any event as a result of which the Prospectus, 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, in light of the circumstances then
existing, not misleading until the earlier to occur of (i) the date
on which all of the Registrable Shares thereunder have been sold,
(ii) the date on which all of the Mattson Common Shares then held by
the Vortek Securityholders could be sold pursuant to Rule 144 (or any
comparable or successor provision) in any ninety (90) day period, or
(iii) the date that is one (1) year after the date on which the
Registration Statement was declared effective by the SEC or such
later date as shall result from any extension of the one year period
pursuant to Section 4(c) (the date in this clause (iii) is referred
to as the "Final Availability Date"). The right of each Vortek
Securityholder to effect sales of Registrable Shares pursuant to the
Registration Statement will automatically terminate on or after the
Final Availability Date upon the receipt by each Vortek
Securityholder and each Permitted Transferee named in the
Registration Statement of a written notice that the Registration
Statement is no longer effective, and thereafter Xxxxxxx will not be
obligated to instruct its transfer agent to process any orders for
sales that purport to be made pursuant to the Registration Statement.
Each Vortek Securityholder agrees not to effect any sales of
Registrable Shares under the Registration Statement after its receipt
of the notice referred to in the preceding sentence.
(c) Permitted Suspension. During the period the Registration
Statement is effective and available for resales of the Registrable
Shares by Vortek Securityholders, Mattson will have the right to
require (effective upon giving written notice to each Vortek
Securityholder) that all Vortek Securityholders suspend public offers
and sales of their Registrable Shares whenever and for so long as (i)
Mattson would be required to disclose any material actions taken or
proposed to be taken by Xxxxxxx, which disclosure would, in Xxxxxxx'x
good faith judgment after consultation with its legal counsel, have a
material adverse effect on Xxxxxxx or on such actions, provided that
in the event Xxxxxxx exercises its suspension right under this
Section 4(c)(i), such suspension shall continue only for the period
of time necessary for disclosure to occur that is not detrimental to
Xxxxxxx and its stockholders or until such time as the information or
event is no longer material, each as determined in good faith by
Xxxxxxx after consultation with counsel and in any event for no more
than ninety (90) days, (ii) Xxxxxxx is for any reason whatsoever
instructed, directed, ordered or otherwise requested by any
governmental agency or self-regulatory organization to stop or
suspend such trading or sales under the Registration Statement, or
(iii) Xxxxxxx is for any reason unable to comply with the SEC's
published requirements for continued use or effectiveness of the
Registration Statement. Xxxxxxx will use all commercially reasonable
efforts to minimize the length of any suspension under this Section
4(c). No such suspension will be considered to be a breach of this
Stock Agreement. The one (1) year period described in Section 4(b)
will be extended by the number of days that sales under the
Registration are suspended under this Section 4(c). If there is a
suspension, Xxxxxxx agrees to use its commercially reasonable
efforts, if necessary, to have the SEC declare the Registration
Statement or any required post effective amendment thereto effective
or withdraw any stop order, and shall give written notice to each
Vortek Securityholder that such suspension is terminated as soon as
reasonably practicable after the conditions that gave rise to the
suspension no longer exist.
(d) Mattson shall promptly furnish to each Vortek
Securityholder with respect to the Registrable Shares such reasonable
number of copies of the Prospectus, including any preliminary
Prospectus and supplements to or amendments of the Prospectus, as any
Vortek Securityholder may reasonably request, in order to facilitate
the public sale or other disposition of all or any of the Registrable
Shares by the Vortek Securityholders.
(e) During the period when copies of the Prospectus are
required to be delivered under the Securities Act or the Exchange
Act, Xxxxxxx shall file all documents required to be filed with the
SEC pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the rules and
regulations promulgated thereunder.
(f) Xxxxxxx shall file documents required of it for
customary Blue Sky clearance in all states requiring the Blue Sky
clearance, upon request by any Vortek Securityholder; provided.
however, that Mattson shall not be required to qualify to do business
or consent to service of process in any jurisdiction in which it is
not now so qualified or has not so consented.
(g) Certain Procedures. The Vortek Securityholders are
individually and solely responsible for assuring their own compliance
with the requirements applicable to selling any Mattson Common Shares
included on their behalf in the Registration Statement, including
without limitation the requirement on the part of the Vortek
Securityholder deliver timely a copy of the final Prospectus to all
buyers of such shares, compliance with the plan of distribution and
related alternatives and limitations for selling shares described in
the Prospectus, and not permitting transferees to purport to sell
under the Registration Statement unless the transferees have been
named (or are not required to be named) as selling stockholders in
accordance with the SEC's rules and policies. Xxxxxxx will not be
obligated to file more than one Registration Statement under this
Section 4 and will not be obligated to file more than one amendment
for the primary purpose of listing Permitted Transferees as
additional selling stockholders but shall otherwise include as a
selling party those Permitted Transferees indicated by a Vortek
Securityholder in a written notice received by Mattson at least two
(2) days prior to the filing of any amendment to the Registration
Statement filed for any other purpose. Xxxxxxx is not obligated
without its prior discretionary consent to participate in any way in
any engagement of underwriters by the Vortek Securityholders in
connection with the registration of the Registrable Shares under this
Section 4. Each Vortek Securityholder agrees to provide timely to
Mattson in writing all information required by Mattson in order to
name each selling security holder and disclose related information in
the prospectus included in the Registration Statement in compliance
with applicable requirements of Form S-3 and published SEC rules and
policies (and such information so furnished in writing to Xxxxxxx
shall specifically state, if requested by Xxxxxxx, that the
information is for use in preparation of the Registration Statement
for purposes of Sections 6(a) and (b)). Mattson shall distribute a
draft of the initial Form S-3 to the Vortek Securityholders in order
that they may review and comment on the registration statement prior
to its filing.
(h) Expenses. Mattson will pay all reasonable and customary
expenses incurred in connection with the filing and effectiveness of
the Registration Statement pursuant to Section 4(a) and the listing
of the Xxxxxxx Shares pursuant to Section 5 and including Sections
4(d), 4(e), and 4(f), except for the following that will be borne by
the Vortek Securityholders: brokers' commissions and/or underwriting
discounts payable by the Vortek Securityholders on any sales of
Registrable Shares by them and any fees and expenses of any legal
counsel or other professional advisors that may be retained by the
Vortek Securityholders.
5. Listing of Mattson Common Shares. On or prior to the Effective Time,
Mattson agrees to secure the listing of the Xxxxxxx Common Shares upon
each national securities exchange or automated quotation system upon
which shares of Mattson common stock are listed and, so long as any
Vortek Securityholder owns any of the Mattson Common Shares, shall
maintain such listing of all Mattson Common Shares. Mattson has taken no
action designed to delist, or which is likely to have the effect of
delisting the shares of Xxxxxxx common stock.
6. Indemnification.
(a) Xxxxxxx Duty to Indemnify. In connection with the
registration effected pursuant to Section 4, to the extent permitted
by law, Mattson shall indemnify and hold harmless each Vortek
Securityholder and each of their respective officers, directors, and
each other person, if any, who controls such Vortek Securityholder
within the meaning of the Securities Act or the Exchange Act (each a
"Securityholder Indemnified Party") against any losses, claims,
damages, liabilities or expenses to which such Securityholder
Indemnified Party may become subject under the Securities Act or
otherwise (including in settlement of any litigation, if such
settlement is effective with the written consent of Xxxxxxx, which
consent shall not be unreasonably withheld), insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which
such securities are registered under the Securities Act, and
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading or arise out of or are based on any failure of Xxxxxxx
to perform its obligations under this Stock Agreement or under
applicable law relating to the subject matter of this Agreement, and
Xxxxxxx will reimburse each Securityholder Indemnified Party for any
legal or any other expenses reasonably incurred by it in connection
with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense, action or proceeding;
provided, however, that Xxxxxxx will not be liable to any
Securityholder Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or any other document filed as a
part thereof in reliance upon and in conformity with written
information furnished to Xxxxxxx through an instrument duly executed
by or on behalf of the applicable Securityholder Indemnified Party
specifically stating that it is for use in the preparation thereof;
and provided, further, that Xxxxxxx will not be liable to any
Securityholder Indemnified Party, in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of the applicable
Securityholder Indemnified Party's failure to send or give a copy of
the final Prospectus, as the same may be then supplemented or
amended, to the person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Shares to such person
if such statement or omission was corrected in such final prospectus
and copies of such final prospectus were delivered to the Vortek
Securityholders prior to the written confirmation of the sale of
Mattson Common Shares to such person asserting an untrue statement or
alleged untrue statement or omission or alleged omission. Such
indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of the Vortek Securityholders and
will survive the transfer of such securities by the Vortek
Securityholders.
(b) Vortek Securityholders' Duty to Indemnify. Subject to
Section 6(e), each Vortek Securityholder will severally and not
jointly indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 6(a)) Xxxxxxx, each director of
Xxxxxxx, each officer of Xxxxxxx and each other person, if any, who
controls Xxxxxxx within the meaning of the Securities Act or the
Exchange Act (each a "Xxxxxxx Indemnified Party"), with respect to
any untrue statement of material fact or alleged untrue statement of
material fact in or omission or alleged omission from the
Registration Statement, if such statement or alleged statement or
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, was made in reliance upon and in conformity with written
information furnished to Mattson through an instrument respectively
executed by the applicable indemnifying Vortek Securityholder
specifically stating that it was for use in the preparation of the
Registration Statement. Such indemnity will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Mattson Indemnified Party and will survive the transfer of such
securities by the Vortek Securityholder.
(c) Procedure. Promptly after receipt by an indemnified
party under Sections 6(a) or 6(b) above of notice of the threat or
commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under
such section, promptly notify each indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party for contribution or otherwise under
this Section 6 to the extent it is not prejudiced as a result of such
failure. In case any such action will be brought against any
indemnified party, the indemnifying party will be entitled to
participate therein and, to the extent that it will wish, jointly
with any other indemnifying party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who
will not, except with the consent of the indemnified party, be
counsel to the indemnifying party); provided, however, if the
defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have
reasonably concluded that there may be a conflict between the
positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it or other indemnified parties that are
inconsistent with those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval of the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for
contribution or otherwise under this Section 6 for any legal expenses
or other expenses 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
such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by such
indemnifying party representing all of the indemnified parties who
are parties to such action) or (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of
the indemnifying party, subject to the limitations on Xxxxxxx'x
liabilities contained in Sections 6(a) and 6(d) and on the Vortek
Securityholders' liabilities contained in Sections 6(b), 6(d) and
6(e). No indemnifying party will, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment does not include a statement
as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification
provided for in this Section 6 is required by its terms but is for
any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party under this Section 6 in respect to
any losses, claims, damages, liabilities or expenses referred to in
this Stock Agreement, then subject to Section 6(e) each applicable
indemnifying party will contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on
the one hand and the indemnified party on the other, or (ii) if the
allocation provided by subdivision (i) above is not permitted by
applicable law or provides a lesser sum to the indemnified party than
is appropriate to reflect not only the relative benefits received by
the indemnifying party on the one hand and the indemnified party on
the other but also the relative fault of the indemnifying party and
the indemnified party as well as any other relevant equitable
considerations, then in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified
party as well as any other equitable considerations. The relative
fault of Mattson and each applicable Vortek Securityholder shall be
determined by reference to, among other things, whether the untrue or
alleged statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
Mattson or by such Vortek Securityholder and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission and/or its distribution. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in Sections 6(c) and
6(e), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or
claim. The provisions set forth in Section 6(c) with respect to the
notice of the threat or commencement of any action shall apply if a
claim for contribution is to be made under Section 6(a); provided,
however, that no additional notice shall be required with respect to
any threat or action for which notice has been given under Section
6(c) for purposes of indemnification. Mattson and each Vortek
Securityholder agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined solely by
pro rata allocation (even if the Vortek Securityholders were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section
6(d), neither party will be required to contribute any amount in
excess of the amount the indemnifying party would have been required
to pay to an indemnified party if the indemnity under this Section 6
was available. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Vortek Securityholders' obligations
to contribute pursuant to this Section 6(d) are several and not
joint.
(e) Notwithstanding the provisions of this Section 6, no
Vortek Securityholder shall be required to indemnify any Mattson
Indemnified Party for or contribute to a Mattson Indemnified Party
any amount that exceeds the amount by which (i) the proceeds received
by such Vortek Securityholder for the Mattson Common Shares sold
pursuant to a registration statement that contains an untrue or
alleged untrue statement or omission or alleged omission exceeds (ii)
the amount of any damages that such Vortek Securityholder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
7. General Provisions.
(a) Termination. This Stock Agreement will automatically and
without notice terminate and cease to be effective for any purpose
upon termination of the Arrangement Agreement in accordance with its
terms.
(b) Governing Laws and Forum. Notwithstanding any other
provision of the Arrangement Agreement described in the recitals to
this Stock Agreement or other agreements referred to in the
Arrangement Agreement, the internal laws of the State of California
(without reference to its principles of conflicts of law) govern the
construction, interpretation and other matters arising out of or in
connection with this Stock Agreement (whether arising in contract,
tort, equity or otherwise). With respect to any action or other legal
proceeding arising out of or in connection with this Stock Agreement
(whether arising in contract, tort, equity or otherwise), the parties
irrevocably (i) consent and submit to the non-exclusive jurisdiction
of federal and state courts located in Santa Xxxxx County of
California, (ii) waive any objection to that choice of forum based on
venue or to the effect that the forum is not convenient, and (iii)
WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR
ADJUDICATION BY JURY.
(c) Binding Effect and Assignment. This Stock Agreement
binds and benefits the parties and their respective successors and
assignees, except that each Vortek Securityholder agrees not to enter
into, cause or permit any assignment any of its registration rights
under Section 4 hereof other than to a Permitted Transferee without
the prior written consent of Xxxxxxx (not to be unreasonably
withheld).
(d) Severability. If any provision of this Stock Agreement
is determined to be invalid, illegal or unenforceable, the remaining
provisions of this Stock Agreement remain in full force, if the
essential terms and conditions of this Stock Agreement for each party
remain valid, binding and enforceable.
(e) Entire Agreement. This Stock Agreement constitutes the
final agreement between the parties, and is the complete and
exclusive statement of the parties' agreement on the matters
contained in this Stock Agreement. All prior and contemporaneous
negotiations and agreements between the parties on the matters
contained in this Stock Agreement are superseded by this Stock
Agreement.
(f) Counterparts. The parties may execute this Stock
Agreement in multiple counterparts, each of which constitutes an
original as against the party that signed it, and all of which
together constitute one agreement. This Stock Agreement is effective
upon delivery of one executed counterpart from each party to the
other parties. The signatures of all parties need not appear on the
same counterpart. The delivery of signed counterparts by facsimile or
email transmission which includes a copy of the sending party's
signature(s) is as effective as signing and delivering the
counterpart in person.
(g) Expenses. Except as specified otherwise in this Stock
Agreement or the Arrangement Agreement, each party will pay its own
professional fees and other expenses incurred by it in connection
with this Stock Agreement and the transactions contemplated by this
Stock Agreement.
(h) Amendment. The parties may amend this Stock Agreement
only by a written agreement signed by each party to be bound by the
amendment and that identifies itself as an amendment to this Stock
Agreement; provided, that any amendment of this Stock Agreement may
be entered into and shall be effective if signed by Mattson and
Vortek Securityholders or their Permitted Transferees beneficially
owning more than fifty percent (50%) of the Mattson Common Shares
then held by the initial Vortek Securityholders or their Permitted
Transferees.
(i) Waiver. The parties may waive a provision of this Stock
Agreement only by a writing signed by the party intended to be bound
by the waiver. A party is not prevented from enforcing any right,
remedy or condition in the party's favor because of any failure or
delay in exercising any right or remedy or in requiring satisfaction
of any condition, except to the extent that the party specifically
waives the same in writing. A written waiver given for one matter or
occasion is effective only in that instance and only for the purpose
stated. A waiver once given is not to be construed as a waiver for
any other matter or occasion. Any enumeration of a party's rights and
remedies in this Stock Agreement is not intended to be exclusive, and
a party's rights and remedies are intended to be cumulative to the
extent permitted by law and include any rights and remedies
authorized in law or in equity.
(j) Notices. Each party giving any notice required or
permitted under this Stock Agreement will give the notice in writing,
and use one of the following methods of delivery to the party to be
notified, at the address set forth below or another address of which
the sending party has been notified in accordance with this Section
7(j): (i) personal delivery, (ii) facsimile or telecopy transmission
with a reasonable method of confirming transmission, (iii) commercial
overnight courier with a reasonable method of confirming delivery, or
(iv) pre-paid, United States of America certified or registered mail,
return receipt requested. Notice to a party is effective for purposes
of this Stock Agreement only if given as provided in this Section
7(j) and if the intended addressee has actually received the notice.
If to the Vortek Securityholders:
To the respective addresses or facsimile numbers set forth
opposite their signatures to this Stock Agreement;
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
If to Mattson:
Xxxxxxx Technology, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
(k) Construction of Agreement.
(1) Where this Stock Agreement states that a party "will" or
"shall" perform in some manner or otherwise act or omit to
act, it means that the party is legally obligated to do so
in accordance with this Stock Agreement.
(2) In the negotiation of this Stock Agreement, each party has
received advice from its own attorney. This Stock Agreement
is not to be construed for or against any party based on
which party drafted any of the provisions of this Stock
Agreement.
(3) The captions, titles and headings, and table of contents,
included in this Stock Agreement are for convenience only,
and do not affect this Stock Agreement's construction or
interpretation.
(4) This Stock Agreement does not, and is not intended to,
confer any rights or remedies in favor of any person other
than the parties signing this Stock Agreement and Permitted
Transferees, except as may be specifically set forth in
other provisions of this Stock Agreement.
(5) Each reference to "law" in this Stock Agreement includes any
foreign, federal, state or local statute, ordinance,
regulation, rule, code, treaty, common law or other form of
law. The words "including," "includes," or "include" are to
be read as listing non-exclusive examples of the matters
referred to, whether or not words such as "without
limitation" or "but not limited to" are used in each
instance.
(1) No Joint Venture. Nothing in this Stock creates a joint
venture or partnership between the parties. This Stock Agreement does
not authorize any party (i) to bind or commit, or to act as an agent,
employee or legal representative of, another party, except as may be
specifically set forth in other provisions of this Stock Agreement,
or (ii) to have the power to control the activities and operations of
another party. The parties are independent contractors with respect
to each other under this Stock Agreement. Each party agrees not to
hold itself out as having any authority or relationship contrary to
this Section 6(1).
(m) Number and Gender. Any reference in this Stock Agreement
to the singular includes the plural where appropriate. Any reference
in this Stock Agreement to the masculine, feminine or neuter gender
includes the other genders where appropriate.
In witness of the above, the parties below have caused this Stock
Agreement to be duly executed as of the date first written above.
XXXXXXX TECHNOLOGY, INC.
By: /s/ Xxxxxx X. XxxXxxxxx
----------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Chief Operating Officer
Vortek Security Holders Addresses and Facsimile Numbers of
Vortek Securityholders
BCI VENTURES INC. 000 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxxx Canada V7V 1G8
-------------------------- Facsimile:
Print Name: Xxxxxxx Xxxxxxxxx
Title: Director
TRIAN EQUITIES LTD.
By: /s/ X. X. XxXxxx Suite 210, 4240 Manor Street
-------------------------- Burnaby, British Columbia
Print Name: X. X. XxXxxx Canada V5G 1B2
Title: C.E.O. Facsimile:
WEST STEAG PARTNERS GMBH
By: /s/ Berthold Liertke-Daldrup Xxxxxxxxxxxxxxx Xxx. 0-0
----------------------------- 00000 Xxxxx
Print Name: Berthold Liertke-Daldrup, Dr. Germany
Title: Managing Director Facsimile:
By: /s/ Xxxx Xxxxxx
---------------
Print Name: Xxxx Xxxxxx, Dr.
Title: Managing Director
LAKE STREET CAPITAL FUND I, L.P.
By: /s/ Xxxxxxx Xxxxxx 00xx Xxxxx, 000 Xxxxxxxxxx Xxxxxx
------------------------ San Francisco, California
Print Name: Xxxxxxx Xxxxxx USA 94111
Title: Managing Member of the Facsimile:
Lake Street Capital, LLC the
General Partner of Lake Street
Capital Fund I, L.P.
VENTRUM GMBH& Co.
By: /s/ Berthold Liertke-Daldrup Xxxxxxxx Xxxxxxx 00
----------------------------- D-01109 Dresden
By: /s/ Xxxx Xxxxxx Germany
----------------------------- Facsimile:
Print Name: Berthold Liertke-Daldrup
Print Name: Xxxx Xxxxxx
-----------
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
/s/ Berthold Liertke-Daldrup Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx
Facsimile:
By: /s/ Berthold Liertke-Daldrup 00000 Xxxxxx Xxxxxxx Xxxxxxx
---------------------------- Xxxxxxx, Xxxxxxxxxx
By: /s/ Xxxx Xxxxxx USA 94539
--------------- Facsimile:
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
----------------------------------------
Xxxx Xxxx, Dr.
By: /s/ Berthold Liertke-Daldrup Leipziger Strasse 101
---------------------------- 47918 Toenisvorst
By: /s/ Xxxx Xxxxxx Germany
-------------- Facsimile:
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
----------------------------------------
Xxxxxx Xxxxxxxxx
By: /s/ Berthold Liertke-Daldrup Xxxxxxxxxxxxxxxxx 00
---------------------------- 45133 Essen
By: /s/ Xxxx Xxxxxx Germany
--------------- Facsimile:
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
----------------------------------------
Xxxxxx Xxxxxxxx, Dr.
By: /s/ Berthold Liertke-Daldrup Angerweise 24
--------------------------- 85567 Xxxxxxx
By: /s/ Xxxx Xxxxxx Germany
-------------- Facsimile:
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
----------------------------------------
Xxxxx Xxxxxxxx
By: /s/ Berthold Liertke-Daldrup Gilsingstrasse 52
---------------------------- 44789 Bochum
By: /s/ Xxxx Xxxxxx Germany
--------------- Facsimile:
Title: By Proxy: Xxxx Xxxxx Xxxxxxxx
XxxX, Xxxxxxxxxxxxxx Xxx. 0-0, X - 00000
----------------------------------------
Xxxxx Xxxxxxxxxx, Dr.
/s/ Xxxx Xxxxxx, Xx. Xxxxx-Xxxxxxx-Xxx 00
00000 Xxxxxxxx
Xxxxxxx
Facsimile:
