EXHIBIT 10.19
ADE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of February
27, 1997, by and among ADE Corporation, a Massachusetts corporation ("ADE" or
the "Company"), and the persons and entities listed as Purchasers on the
Schedule of Holders attached hereto (the "Purchasers").
RECITALS
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A. The Purchasers are parties to the Agreement and Plan of Merger dated
as of February 27, 1997 (the "Merger Agreement") by and among the Company, ADE
Technologies, Inc., a Massachusetts corporation ("ATI"), Digital Measurement
Systems, Inc., a Massachusetts corporation ("DMS"), Xxxxx X. Xxxx, Xxxx Xxxxxx
and Advanced Development Corporation and all its stockholders pursuant to which
DMS was merged with and into ATI.
B. The obligations of the Purchasers under the Merger Agreement are
conditioned upon, among other things, the execution and delivery of this
Agreement by the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
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shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission or any
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other Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.01 par value, of the
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Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
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or any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" means any Purchaser holding Registrable Securities, or any
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person holding Registrable Securities to whom the rights under this Agreement
have been transferred in accordance with Section 2.7 hereof.
"INITIATING HOLDERS" means any Holders who in the aggregate hold not
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less than 60% of the Registrable Securities then outstanding.
"REGISTRABLE SECURITIES" means the Common Stock issued to the
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Purchaser pursuant to the Merger Agreement; provided, however, that such shares
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of Common Stock shall
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only be treated as Registrable Securities if and so long as they have not been
registered or sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction and the registration rights with
respect to such shares have not terminated pursuant to Section 2.8.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to the
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filing of a registration statement with the Commission under the Securities Act
and such registration statement's becoming effective under the Securities Act.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise
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stated below, incurred in complying with Sections 2.1 and 2.2 hereof, including
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, the expense of any special audits incident to or required
by any such registration.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,or
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any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder.
2. REGISTRATION.
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2.1 PIGGY-BACK REGISTRATION.
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(a) Notice of Registration. If at any time or from time to time the
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Company shall decide to register any of its Common Stock, either for its own
account or the account of a Holder or other holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof, and
(ii) subject to the limitations set forth below, include in such
registration (and any related qualification under Blue sky laws or
other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests
given to the Company by any Holder within five days after the Company
gives such written notice.
(b) Underwriting. If the registration of which the Company gives notice
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is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
2.1(a)(i). In such event, the right of any Holder to registration pursuant to
Section 2.1 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting
shall be limited to the extent provided herein.
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The Company shall, together with all Holders and any other holders of
Common Stock proposing to distribute their securities through such underwriting,
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the managing underwriter advises the
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise all Holders
requesting to be included in the registration and underwriting and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all Holders and all other holders of
Common Stock requesting to be included in the registration and underwriting in
proportion, as nearly as practicable, to the respective number of shares of
Common Stock so to be included by them in the registration statement. No
Registrable Securities or other shares of Common Stock excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company.
(c) Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it under this Section 2.1
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
2.2 REGISTRATION ON FORM S-3.
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(a) Request for Registration. In case the Company shall receive from
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Initiating Holders a written request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public offering
of shares of the Registrable Securities and the Company is a registrant entitled
to use Form S-3 to register the Registrable Securities for such an offering, the
Company shall use its best efforts to cause such Registrable Securities to be
registered for the offering on such form; provided, however, that (i) the
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Company shall not be required to effect more than one registration pursuant to
this Section 2.2 and (ii) the Company shall not be obligated to effect any such
registration prior to the filing by the Company with the Commission of financial
statements of the Company with a minimum of thirty (30) days of the combined
financial results of ADE and DMS. The Company shall give other Holders written
notice not less than five days prior to the filing of such registration
statement and afford them the opportunity to include their Registrable
Securities in the registration statement.
(b) Notwithstanding the foregoing, the Company shall not be obligated to
take any action pursuant to this Section 2.2:
(i) If the Company, within ten (10) days of the receipt of the request of
the Initiating Holders, gives notice of its bona fide intention to effect the
filing of a registration statement with the Commission within ninety (90) days
of receipt of such request (other than with respect to a registration statement
relating to a Rule 145 transaction, an offering solely to employees or any other
registration which is not appropriate for the registration of Registrable
Securities);
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(ii) During the period starting with the date sixty (60) days prior to the
Company's estimated date of filing of, and ending on the date three (3) months
immediately following the effective date of, any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(iii) If the Company shall furnish to the Initiating Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors it would be seriously detrimental to the Company or
its stockholders for registration statements to be filed in the near future,
then the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed 120 days from the receipt
of the request to file such registration by such Initiating Holder or Holders,
provided that the Company may not exercise this deferral right more than once
per twelve month period.
2.3 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
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connection with (i) all registrations pursuant to Section 2.1, and (ii) one
registration pursuant to Section 2.2, shall be borne by the Company.
Notwithstanding the foregoing, the Company shall not be required to pay for
expenses of any registration proceeding begun under Section 2.2, the request for
which has been subsequently withdrawn by the Initiating Holders or is otherwise
not successfully completed due to no fault of the Company, unless the withdrawal
is based upon material adverse information concerning the Company of which the
Holders were not aware at the time of such request. Unless otherwise stated,
all Selling Expenses relating to securities registered on behalf of the Holders
and all other registration expenses shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered or
proposed to be so registered.
2.4 REGISTRATION PROCEDURE. In the case of each registration effected by
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the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of such registration and as to the
completion thereof. The Company will:
(a) Prepare and file with the Commission a registration statement and
such amendments and supplements as may be necessary and use its best efforts to
cause such registration statement to become and remain effective for at least 90
days or until the distribution described in the registration statement has been
completed, whichever first occurs;
(b) Furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Before filing the registration statement or prospectus or amendments
or supplements thereto, furnish to one counsel selected by the holders of
Registrable Securities copies of such documents proposed to be filed which shall
be subject to the reasonable approval of such counsel;
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(d) Furnish to each Holder who is selling Registrable Securities in a
registration pursuant to this Agreement (i) an opinion of counsel for the
Company, dated the effective date of the registration statement, and (ii) a
"comfort" letter signed by the independent public accountants who have certified
the Company's financial statements included in the registration statement,
covering substantially the same matters with respect to the registration
statement (and the prospectus included therein) and (in the case of the
accountants' letter) with respect to events subsequent to the date of the
financial statements, as are customarily covered (at the time of such
registration) in opinions of the Company's counsel and in accountants' letters
delivered to the underwriters in underwritten public offering of securities;
(e) Cause all such Registrable Securities registered pursuant hereto to
be listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed.
2.5 INDEMNIFICATION.
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(a) The Company will indemnify each Holder, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, with respect
to which registration has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by the
Company of the Securities Act, the Exchange Act, state securities law or any
rule or regulation promulgated under such laws applicable to the Company in
connection with any such registration, and the Company will reimburse each such
Holder, each of its officers and directors and partners, and each person
controlling such Holder, for any legal and any other expenses reasonably
incurred, as such expenses are incurred, in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder or controlling person, and
stated to be specifically for use therein.
(b) Each Holder will, severally and not jointly, if Registrable
Securities held by such Holder are included in the securities as to which such
registration is being effected, indemnify the Company, each of its directors and
officers, each person who controls the Company within the meaning of Section 15
of the Securities Act, and each other holder of the Company's securities covered
by such a registration statement, each of its officers, directors and partners
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on
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any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred, as such expenses are incurred, in connection with
investigating or defending any such claim, loss, damage, liability or action,
but only to the extent that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with information furnished to the Company by such Holder in an
instrument duly executed by such Holder expressly for use in such registration.
Notwithstanding the foregoing, the liability of each Holder under this Section
2.5(b) shall be limited in an amount equal to the net proceeds of the shares
sold by such Holder.
(c) Each party entitled to indemnification or contribution under this
Section 2.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification or contribution (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity or contribution may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, amended further that the
failure of any Indemnified Party to give notice as provided herein shall not
provide relieve the Indemnifying Party of its obligations under this Agreement
unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or there are separate and different defenses.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (whose consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
2.6 INFORMATION BY HOLDER. The Holder or Holders of Registrable
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Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
reasonably request in writing and as shall be required in connection with any
registration referred to in this Agreement.
2.7 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
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register securities granted Holders under Sections 2.1 and 2.2 may not be
assigned to a transferee or assignee except with the prior written consent of
the Company and no such transfer or assignment will be effective unless the
transferee or assignee agrees in writing to be bound by the provisions of this
Agreement.
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2.8 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant to
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Sections 2.1 and 2.2 of this Agreement shall terminate automatically effective
on the first date when the Registrable Securities are eligible for resale by the
Holders pursuant to Rule 144 under the Securities Act.
3. AMENDMENT. Any provision of this Agreement may be amended or the
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observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the holders of a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this Section 3
shall be binding upon each party to this Agreement and each transferee of
securities subject to this Agreement.
4. GOVERNING LAW. This Agreement shall be governed in all respects by
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the internal laws of the Commonwealth of Massachusetts without regard to
conflict of laws provisions.
5. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
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understanding and agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
6. NOTICES. ETC. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by certified mail,
postage prepaid, or delivered by facsimile transmission, by hand or by
messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth in Exhibit
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A, or at such other address as such Holder shall have furnished to the Company,
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with a copy to
[________]
Attn: [_____]
Fax: (___) ___-_____
(b) if to the Company, to:
ADE Corporation
00 Xxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
or at such other address as the Company shall have furnished to the Holders,
with a copy to:
Warner & Xxxxxxxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxx, Xx., Esq.
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Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of
this Agreement be treated as effective or having been given when delivered if in
writing and delivered personally or by facsimile transmission, or, if sent by
mail, postage pre-paid, at the earlier of its receipt or three days after the
same has been deposited in a regularly maintained receptacle for the deposit of
the United States mail, addressed and mailed as aforesaid. Any party may change
by such notice the address to which notices to it are to be addressed.
7. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ADE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
_____________________
Name: Xxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
ADVANCED DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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EXHIBIT A
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SCHEDULE OF HOLDERS
(to the Registration Rights Agreement)
PURCHASERS
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ADVANCED DEVELOPMENT CORPORATION
0 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, President
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXXX X. XXXX
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXX XXXXXX
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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