XXXXXXX TECHNOLOGY, INC.
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered
into as of the 5th day of April, 2002, by and among XXXXXXX TECHNOLOGY, INC.,
a Delaware corporation (the "Company"), and STEAG Electronic Systems AG (the
"Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company
hereby agrees to the cancellation of indebtedness owed by the Company to the
Purchaser in consideration for the purchase of shares (the "Shares") of common
stock, par value $0.001 (the "Common Stock") of the Company hereunder. In a
parallel transaction, the Company has authorized the sale of up to Seven
Million Four Hundred Thousand (7,400,000) shares of Common Stock of the
Company (the "PIPE Transaction").
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 Purchase and Sale
Subject to the terms and conditions of this Agreement (the "Purchase
Agreement"), the Purchaser agrees to purchase, and the Company agrees to sell
and issue to the Purchaser, at the Closing (as defined below), 1,323,644 of
the Shares (the "Purchaser's Shares").
2.2 Purchase Price
The purchase price of each Share shall be $6.15 (the "Per Share
Price"). Purchaser shall pay for the Shares to be purchased hereunder by
canceling $8,140,410.60 of the principal amount outstanding under that certain
promissory note issued by the Company to the Purchaser, dated July 2, 2002
(the "Promissory Note"), equal to the aggregate price for such Shares set
forth above. The Company shall not, during the period beginning on the date of
this Agreement and ending ninety (90) days after the Closing Date (as defined
below), without adjusting the price per Share hereunder accordingly, sell or
issue or enter into an agreement to sell or issue (i) shares of Common Stock
at a price per share of less than the Per Share Price, except (A) issuances of
shares of Common Stock pursuant to the exercise of either options or warrants
that were issued prior to January 1, 2002 or options that were issued or
granted in the ordinary course of business to employees or non-employee
service providers (including those issued after the date of this Agreement in
accordance with (ii) below) pursuant to the Company's stock option plans, and
(B) issuances of shares of Common Stock in the ordinary course of business to
employees pursuant to the Company's stock purchase plan (the Company's stock
option and stock purchase plans are, together, the "Stock Plans") or (ii)
options, warrants or any other securities that can be converted into, or
otherwise exchanged for, shares of Common Stock at a conversion, exchange or
exercise price per share of less than the Per Share Price, except grants to
employees and consultants of the Company of options to purchase up to an
aggregate of 1,200,000 shares of Common Stock in which the exercise price for
each such option granted to an employee or consultant is equal to or greater
than the closing price of the Common Stock traded on the NASDAQ stock market
system on the day of grant of such option. In the event the Company sells or
issues, or enters into an agreement to sell or issue, shares of Common Stock,
options, warrants or other securities that requires adjustment to the price
per share hereunder in accordance with the previous sentence, the Company
shall, within ten (10) business days of such sale or issuance, pay to the
Purchaser a cash amount equal to the number of Purchaser's Shares multiplied
by the difference between the Per Share Price and the per share price paid or
to be paid upon such sale or issuance or agreement to sell or issue.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing") shall occur at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx Xxxxxxxxxx 00000, as
soon as practicable and as agreed by the parties hereto following notification
by the Securities and Exchange Commission (the "Commission") to the Company of
the Commission's willingness to declare effective the registration statement
to be filed by the Company pursuant to Section 7.1 hereof (the "Registration
Statement") at a time (the "Closing Date") to be agreed upon by the Company
and Bear Xxxxxxx & Co. Inc. (the "Placement Agent") and of which the
Purchasers will be notified by facsimile transmission or otherwise.
(b) At the Closing, the Company shall authorize its transfer agent
(the "Transfer Agent") to issue to the Purchaser one or more stock
certificates, as designated by the Purchaser, registered in the name of the
Purchaser, or in such nominee name(s) as designated by the Purchaser in
writing, representing the Purchaser's Shares. The Company will deliver such
certificate(s) (the "Certificates") against delivery of payment for the
Purchaser's Shares by the Purchaser. Prior to the Purchaser's delivery of
payment for the Purchaser's Shares, the Company will deliver via facsimile a
copy of the Certificates to be delivered upon Closing to the office of the
Purchasers (at the fax number indicated on the signature pages attached
hereto).
(c) The Company's obligation to complete the purchase and sale of the
Purchaser's Shares shall be subject to the following conditions, any one or
more of which may be waived by the Company:
(i) receipt by the Company of the original Promissory Note,
a portion of the principal amount of which shall have been canceled in the
full amount of the purchase price for the Shares being purchased hereunder;
and
(ii) the accuracy in all material respects of the
representations and warranties made by the Purchaser and the fulfillment in
all material respects of those undertakings of the Purchaser to be fulfilled
before the Closing.
(d) The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Purchaser's Shares evidenced by the
Certificates shall be subject to the following conditions, any one or more of
which may be waived by the Purchaser with respect to the Purchaser's
obligation:
(i) the representations and warranties made by the Company
in this Agreement shall be accurate in all material respects and the
undertakings of the Company shall have been fulfilled in all material respects
on or before the Closing;
(ii) the Company shall have delivered to the Purchaser a
certificate executed by the president and the chief financial officer of the
Company, dated the Closing Date, in form and substance reasonably satisfactory
to the Purchaser, to the effect that the representations and warranties of the
Company set forth in Section 4 hereof are true and correct in all material
respects as of the date of this Agreement and as of the Closing Date, and that
the Company has complied with all the agreements and satisfied all the
conditions in this Agreement on its part to be performed or satisfied on or
before the Closing Date;
(iii) the Company shall have delivered to the Purchasers and
the Placement Agent a legal opinion in a form reasonably acceptable to the
Purchaser and the Placement Agents;
(iv) the Company shall have delivered to the Purchaser a new
promissory note in principal amount equal to the portion of the Promissory
Note that is not canceled in consideration for the Shares purchased hereunder
(with such amount to be adjusted to reflect any interest that has accrued and
remains unpaid under the Promissory Note as of the Closing Date);
(v) the Company shall have obtained gross proceeds of at
least Twenty Five Million Dollars ($25,000,000) from the sale of the shares in
the PIPE Transaction at the Closing;
(vi) the Commission shall have notified the Company of the
Commission's willingness to declare the Registration Statement effective; and
(vii) the Closing shall have occurred no later than one
hundred twenty (120) days after the date hereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Except as set forth on the Schedule of Exceptions delivered to the
Purchaser and signed by the Company's Chief Financial Officer, the Company
hereby represents, warrants and covenants to the Purchaser as follows (which
representations, warranties and covenants shall be deemed to apply, where
appropriate, to each subsidiary of the Company):
4.1 Organization and Qualification
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter
into and perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not, singly or in the aggregate,
materially and adversely affect the business, financial condition, properties,
operations, assets or business affairs or prospects in the year 2002 of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
4.2 Capitalization
(a) The authorized capital stock of the Company consists of
120,000,000 shares of Common Stock and 2,000,000 shares of Preferred Stock.
(b) As of the date of this Agreement, the issued and outstanding
capital stock of the Company consists of 37,118,222 shares of Common Stock
(excluding any shares issued upon the exercise of stock options after March
15, 2002). The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and have not been issued in violation of or are not otherwise subject to any
preemptive or other similar rights.
(c) The Company has reserved 8,934,000 shares of Common Stock for
issuance upon the exercise of stock options granted or available for future
grant under the Company's Stock Plans.
(d) Up to 3,482,000 shares of Common Stock may be issued upon
conversion of outstanding indebtedness owed to the Purchaser.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock
or other securities of the Company and, except as provided in connection with
the PIPE Transaction, there are no current commitments to issue any shares of
Common Stock or any security convertible into or exchangeable for Common
Stock. Each of the Purchaser and the Company's executive officers and
directors has executed a lock-up agreement in the form previously furnished to
the Purchaser.
4.3 Issuance, Sale and Delivery of the Shares
(a) The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to the Purchase Agreements and, when issued and delivered
by the Company pursuant to this Agreement against payment of the consideration
set forth in this Agreement, will be validly issued and fully paid and
nonassessable and free and clear of all pledges, liens and encumbrances. The
certificates evidencing the Shares are in due and proper form under Delaware
law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights except such as have been waived or complied with. No further
approval or authority of the shareholders or the Board of Directors of the
Company will be required for the issuance and sale of the Shares to be sold by
the Company as contemplated in the Purchase Agreements.
(c) Subject to the accuracy of the Purchasers' representations and
warranties in Section 5 of this Agreement, the offer, sale, and issuance of
the Shares in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act and from the registration or qualification requirements of the
laws of any applicable state or United States jurisdiction.
4.4 Financial Statements
The financial statements included (as exhibits or otherwise) in the
Company Documents (as defined below) present fairly the financial position of
the Company as of the dates indicated and the results of their operations for
the periods specified. Except as otherwise stated in such Company Documents,
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and any
supporting schedules included with the financial statements present fairly the
information stated in such schedule and reflected in the financial statements.
The financial and statistical data set forth in the Company Documents were
prepared on an accounting basis consistent with such financial statements.
4.5 No Material Change
Since December 31, 2001, (i) the Company has not incurred any
liabilities or obligations, indirect, or contingent, or entered into any
verbal or written agreement or other transaction that was not in the ordinary
course of business or that would have a Material Adverse Effect on the
Company; (ii) the Company has not sustained any material loss or interference
with its businesses or properties from fire, flood, windstorm, accident or
other calamity not covered by insurance; (iii) the Company has not paid or
declared any dividends or other distributions with respect to its capital
stock and the Company is not in default in the payment of principal or
interest on any outstanding debt obligations; (iv) other than in connection
with grants or exercises of stock options or issuances of shares to its
employees under the Company's Stock Plans, there has not been any change in
the capital stock of the Company or increase in indebtedness material to the
Company; (v) the Company has not incurred or sustained any other event or
change that would have a Material Adverse Effect on the Company; and (vi) the
Company has conducted its business only in the ordinary course of business in
accordance with past practice.
The Company has no material contingent obligations, except as set
forth in the financial statements included in the Company Documents.
4.6 Environmental
Except as would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect,
(a) the Company is in compliance with all applicable Environmental
Laws (as defined below);
(b) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals, except where the
failure to comply would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(c) there are no pending or, to the best knowledge of the Company,
threatened Environmental Claims (as defined below) against the Company; and
(d) under applicable law, to the Company's knowledge, there are no
circumstances with respect to any property or operations of the Company that
are reasonably likely to form the basis of an Environmental Claim against the
Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment binding on the Company,
relating to the environment, health, safety or any chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority. "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations
or proceedings relating in any way to any Environmental Law.
4.7 No Defaults
The Company is not in violation of its certificate of incorporation
or bylaws or in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust, or other instrument or material
agreement to which the Company is a party or by which it may be bound, or to
which any of the property or assets of the Company is subject.
4.8 Labor Matters
No labor dispute with the employees of the Company exists or, to the
best knowledge of the Company, is imminent, which would reasonably likely
result in a Material Adverse Effect.
4.9 No Actions
There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, might reasonably be expected to have a Material
Adverse Effect and/or which might materially and adversely affect the
consummation of this Agreement, nor, to the best knowledge of the Company, is
there any reasonable basis therefor. The Company is not in default with
respect to any judgment, order or decree of any court or governmental agency
or instrumentality which, singly or in the aggregate, would have a Material
Adverse Effect on the Company.
4.10 Intellectual Property
(a) The Company, to the best of its knowledge in the course of
diligent inquiry (which shall be deemed to exclude any patent searches not
actually conducted), owns or is licensed to use all patents, patent
applications, inventions, trademarks, trade names, applications for
registration of trademarks, service marks, service xxxx applications,
copyrights, know-how, manufacturing processes, formulae, trade secrets,
licenses and rights in any thereof and any other intangible property and
assets that are material to the business of the Company as now conducted and
as proposed to be conducted in the year 2002 (in this Agreement called the
"Proprietary Rights"), or is seeking, or will seek, to obtain rights to use
such Proprietary Rights that are material to the business of the Company as
proposed to be conducted in the year 2002.
(b) The Company does not have any knowledge of, and the Company has
not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any Proprietary Rights or
with respect to any license of Proprietary Rights which are material to the
business of the Company.
(c) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights and which could
reasonably be expected to have a Material Adverse Effect, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, and has not entered
into or is not a party to any contract which restricts or impairs the use of
any such Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the Proprietary Rights.
(e) The Company has not received written notice of any pending
conflict with or infringement upon any third-party proprietary rights, which
could reasonably be expected to have a Material Adverse Effect.
(f) The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business.
(g) The Company has complied, in all material respects, with its
obligations relating to the protection of the Proprietary Rights which are
material to the business of the Company used pursuant to licenses.
(h) To the best knowledge of the Company, no person is infringing on
or violating the Proprietary Rights, which infringement or violation could
reasonably be expected to have a Material Adverse Effect.
4.11 Permits
The Company possesses and is operating in compliance with all
material licenses, certificates, consents, authorities, approvals and permits
from all state, federal, foreign and other regulatory agencies or bodies
necessary to conduct the businesses now operated by it, except where the
failure to be in compliance would not reasonably be expected to have a
Material Adverse Effect and the Company has not received any notice of
proceedings relating to the revocation or modification of any such permit or
any circumstance which would lead it to believe that such proceedings are
reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to have
a Material Adverse Effect.
4.12 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforceability may be subject to general principals of
equity and except as indemnification provisions herein may be held violative
of public policy and legality unenforceable.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement, including the sale, issuance and
delivery of the Shares, (i) have been duly authorized by all necessary
corporate action on the part of the Company, its directors and stockholders;
(ii) will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to, any contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust or other instrument or agreement to which the Company
is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject and in each case which would reasonably
likely have a Material Adverse Effect; (iii) will not trigger anti-dilution
rights or other rights to acquire additional equity securities of the Company
except for those which have been waived or complied with; and (iv) will not
result in any violation of the provisions of the certificate of incorporation
or bylaws of the Company or any applicable statute, law, rule, regulation,
ordinance, decision, directive or order and in each case which would
reasonably likely have a Material Adverse Effect.
4.13 Properties
The Company has good and marketable title to its properties, free and
clear of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable
for their respective uses. Any real property held under lease by the Company
is held under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the conduct of the business of the
Company. The Company owns or leases all such properties as are necessary to
its business or operations as now conducted.
4.14 Compliance
The Company has conducted and, to its knowledge, is conducting its
business in compliance with all applicable Federal, state, local and foreign
statutes, laws, rules, regulations, ordinances, codes, decisions, decrees,
directives and orders, except where the failure to do so would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
4.15 Security Measures
The Company takes reasonable security measures designed to enable the
Company to assert trade secret protection in its non-patented technology for
which the Company can obtain trade secret protection.
4.16 Contributions
To the best of the Company's knowledge, neither the Company nor any
employee or agent of the Company on the Company's behalf, has made any payment
of funds of the Company or received or retained any funds in violation of any
law, rule or regulation.
4.17 Use of Proceeds; Investment Company
The Company intends to use the proceeds from the sale of the Shares
for working capital and other general corporate purposes, including the
possible repayment of debt. The Company is not now, and after the sale of the
Shares under this Agreement and under all other agreements and the application
of the net proceeds from the sale of the Shares described in the proceeding
sentence will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
4.18 Prior Offerings
All offers and sales of capital stock of the Company before the date
of this Agreement were at all relevant times duly registered or exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Securities Act") and were duly registered or subject to an available
exemption from the registration requirements of the applicable state
securities or Blue Sky laws, except for violations that would not have a
Material Adverse Effect.
4.19 Taxes
The Company has filed all material tax returns required to be filed,
which returns are true and correct in all material respects, and the Company
is not in default in the payment of any taxes, including penalties and
interest, assessments, fees and other charges, shown thereon due or otherwise
assessed, other than those being contested in good faith and for which
adequate reserves have been provided or those currently payable without
interest which were payable pursuant to said returns or any assessments with
respect thereto.
4.20 Other Governmental Proceedings
To the Company's knowledge, there are no rulemaking or similar
proceedings before any Federal, state, local or foreign government bodies that
involve the Company or that affect the particular industry in which the
Company operates in a way that is materially different than other industries,
which, if the subject of an action unfavorable to the Company, could involve a
prospective Material Adverse Effect.
4.21 Non-Competition Agreements
To the knowledge of the Company, any full-time employee who has
entered into any non-competition, non-disclosure, confidentiality or other
similar agreement with any party other than the Company is neither in
violation of nor is expected to be in violation of that agreement as a result
of the business currently conducted or expected to be conducted by the Company
or such person's performance of his or her obligations to the Company. The
Company has not received written notice that any consultant or scientific
advisor of the Company is currently in violation of any non-competition,
non-disclosure, confidentiality or similar agreement.
4.22 Transfer Taxes
On the Closing Date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Purchaser's Shares to be sold to the Purchaser under this
Agreement will be, or will have been, fully paid or provided for by the
Company and all laws imposing such taxes will be or will have been fully
complied with.
4.23 Insurance
The Company maintains insurance of the type and in the amount that
the Company reasonably believes is adequate for its business, including, but
not limited to, insurance covering all real and personal property owned or
leased by the Company against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against by similarly situated
companies, all of which insurance is in full force and effect.
4.24 Governmental/ Regulatory Consents
No registration, authorization, approval, qualification or consent
with or required by any court or governmental/ regulatory authority or agency
is necessary in connection with the execution and delivery of this Agreement
or the offering, issuance or sale of the Shares, except for any required
filings with the Commission, in connection with any applicable State or Blue
Sky law, or with Nasdaq or the National Association of Securities Dealers,
Inc.
4.25 Securities and Exchange Commission Filings
The Company has timely filed with the Commission all documents
required to be filed by the Company under the Securities Exchange Act of 1934,
as amended (the "Exchange Act.")
4.26 Additional Information
The Company represents and warrants that the information contained in
the following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates, and do not omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made
and at the time that they were made, not misleading, as of their respective
dates.
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 2001;
(b) Notice of Annual Meeting of Shareholders and Proxy Statement for
the Company's Annual Meeting held on May 16, 2001;
(c) the Confidential Private Placement Memorandum, dated as of March
14, 2002, including all addenda and exhibits thereto, taken together (the
"Private Placement Memorandum"); and
(d) all other documents, if any, filed by the Company with the
Commission since September 30, 2001 pursuant to the reporting requirements of
the Exchange Act.
4.27 Contracts
The contracts described in the Company Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a Material Adverse Effect on the Company. Neither the Company
nor, to the best knowledge of the Company, any other party is in material
breach of or default under any such contracts.
4.28 No Integrated Offering
Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, has directly or indirectly made any offers or sales in
any security or solicited any offers to buy any security under circumstances
that would require registration under the Securities Act of the issuance of
the Shares to the Purchasers, except pursuant to this Agreement. The issuance
of the Shares to the Purchasers will not be integrated with any other issuance
of the Company's securities (past, current or future) for purposes of the
Securities Act or any applicable rules of Nasdaq (or of any national
securities exchange on which the Company's Common Stock is then traded),
except where such action would not cause the representations set forth in
Section 4.3(c) above to be untrue. The Company will not make any offers or
sales of any security (other than the Shares) that would cause this Offering
of the Shares to be integrated with any other offering of securities by the
Company for purposes of any registration requirement under the Securities Act
or any applicable rules of Nasdaq (or of any national securities exchange on
which the Company's Common Stock is then traded), except where such action
would not cause the representations set forth in Section 4.3(c) to be untrue.
4.29 Listing of Shares
On or prior to the Closing Date, the Company agrees to secure the
listing of the Shares upon each national securities exchange or automated
quotation system upon which shares of Common Stock are then listed and, so
long as any Purchaser owns any of the Shares, shall maintain such listing of
all Shares. The Company has taken no action designed to delist, or which is
likely to have the effect of delisting, the Common Stock from any of the
national securities exchange or automated quotation system upon which the
shares of Common Stock are then listed.
4.30 No Manipulation of Stock
The Company has not taken and will not, in violation of applicable
law, take any action outside the ordinary course of business designed to or
that might reasonably be expected to cause or result in unlawful manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Shares.
4.31 [Reserved]
4.32 No Material Nonpublic Information
Immediately prior to the Closing, the Private Placement Memorandum,
as supplemented, will include no material nonpublic information with respect
to the Company.
4.33 Reliance by Placement Agent
The Company hereby acknowledges that the Placement Agent may rely on
the representations, warranties and covenants set forth in this Agreement as
if such representations, warranties and covenants were made to the Placement
Agent directly.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
5.1 Securities Law Representations and Warranties
The Purchaser represents, warrants and covenants to the Company as
follows:
(a) The Purchaser is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase
of the Purchaser's Shares, including investments in securities issued by the
Company, and has requested, received, reviewed and considered all information
it deems relevant in making an informed decision to purchase the Purchaser's
Shares.
(b) The Purchaser is acquiring the number of Shares set forth in
Section 2 above in the ordinary course of its business and for its own account
for investment (as defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvement Act of 1976 and the regulations thereunder) only, and has no
present intention of distributing any of the Purchaser's Shares nor any
arrangement or understanding with any other persons regarding the distribution
of such Shares within the meaning of Section 2(11) of the Securities Act,
other than as contemplated in Section 7 of this Agreement.
(c) The Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Purchaser's
Shares except in compliance with the Securities Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations").
(d) The Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire and the Registration Statement Questionnaire,
attached to this Agreement as Appendices I and II, for use in preparation of
the Registration Statement (as defined in Section 7.1 below), and the answers
to the Questionnaires are true and correct as of the date of this Agreement
and will be true and correct as of the effective date of the Registration
Statement; provided that the Purchaser shall be entitled to update such
information by providing notice thereof to the Company before the effective
date of such Registration Statement.
(e) The Purchaser has, in connection with its decision to purchase
the Purchaser's Shares, relied solely upon the Company Documents and the
representations and warranties of the Company contained in this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
(g) The Purchaser understands that the Shares are being offered and
sold to it in reliance upon specific exemptions from the registration
requirements of the Securities Act, the Rules and Regulations and state
securities laws and that the Company is relying upon the truth and accuracy
of, and the Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth
herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Shares.
(h) Until the filing of the Registration Statement, the Purchaser
agrees with the Placement Agent and the Company to keep confidential all
information concerning this private placement. The Purchaser understands that
the information contained in the Private Placement Memorandum is strictly
confidential and proprietary to the Company and has been prepared from the
Company's publicly available documents and other information and is being
submitted to the Purchaser solely for such Purchaser's confidential use. The
Purchaser agrees to use the information contained in the Private Placement
Memorandum for the sole purpose of evaluating a possible investment in the
Shares and the Purchaser hereby acknowledges that it is prohibited from
reproducing and distributing to third parties the Private Placement
Memorandum, this Purchase Agreement, or any other offering materials or other
information provided by the Company in connection with the Purchaser's
consideration of its investment in the Company, in whole or in part, or
divulging or discussing any of their contents to third parties. Further, the
Purchaser understands that the existence, nature and content of all
conversations and presentations, if any, regarding the Company and this
offering must be kept strictly confidential. The Purchaser understands that
the federal securities laws may impose restrictions on trading based on
information regarding this offering. In addition, the Purchaser hereby
acknowledges that unauthorized disclosure of information regarding this
offering may cause the Company to violate Regulation FD and agrees not to
engage in any such unauthorized disclosure. The restrictions in this paragraph
shall cease upon the filing of the Registration Statement.
(i) The Purchaser understands that its investment in the Shares
involves a significant degree of risk and that the market price of the Common
Stock has been and continues to be volatile and that no representation is
being made as to the future value or trading volume of the Common Stock. The
Purchaser has the knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Shares and has the ability to bear the economic risks of an investment in the
Shares.
(j) The Purchaser understands that no United States federal or state
agency or any other government or governmental agency has passed upon or made
any recommendation or endorsement of the Shares.
(k) The Purchaser understands that, until such time as the
Registration Statement has been declared effective or the Shares may be sold
pursuant to Rule 144(k) under the Securities Act without any restriction as to
the number of securities as of a particular date that can then be immediately
sold, the Shares may bear a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the
certificates for the Shares):
"The securities represented by this certificate were issued
in a transaction that was not registered under the Securities Act of
1933, as amended or any state or other securities law. The securities
may not be sold, pledged, transferred or assigned in the absence of
an effective registration statement for the securities under said
Act, or an opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, that registration is not
required under said Act or unless sold pursuant to Rule 144 under
said Act."
5.2 Resales of Shares
(a) The Purchaser hereby covenants with the Company not to make any
sale of the Purchaser's Shares without satisfying the requirements of this
Agreement, the Securities Act and the Rules and Regulations, including, in the
event of any resale under the Registration Statement, the prospectus delivery
requirements under the Securities Act, and the Purchaser acknowledges and
agrees that such Shares are not transferable on the books of the Company
pursuant to a resale under the Registration Statement unless the certificate
submitted to the transfer agent evidencing the Purchaser's Shares is
accompanied by a separate officer's certificate
(i) in the form of Appendix III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Purchaser's Shares have
been sold in accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been satisfied.
(b) The Purchaser acknowledges that there may occasionally be times
when the Company determines, in good faith following consultation with its
Board of Directors or a committee thereof, that the use of the prospectus
forming a part of the Registration Statement (the "Prospectus," as further
defined in Section 7.3.1 below) should be suspended until such time as an
amendment or supplement to the Registration Statement or the Prospectus has
been filed by the Company and any such amendment to the Registration Statement
is declared effective by the Commission, or until such time as the Company has
filed an appropriate report with the Commission pursuant to the Exchange Act.
The Purchaser hereby covenants that it will not sell any Shares pursuant to
the Prospectus during the period commencing at the time at which the Company
gives the Purchaser written notice of the suspension of the use of the
Prospectus and ending at the time the Company gives the Purchaser written
notice that the Purchaser may thereafter effect sales pursuant to the
Prospectus. The Company may, upon written notice to the Purchasers, suspend
the use of the Prospectus one or more times for up to an aggregate of sixty
(60) days in any 365-day period (less the number of days in such 365-day
period that the Purchasers must suspend their use of the Prospectus pursuant
to the first sentence of this paragraph) based on the reasonable determination
of the Company's Board of Directors that there is a significant business
purpose for such determination, such as pending corporate developments, public
filings with the Commission or similar events. The Company shall in no event
be required to disclose the business purpose for which it has suspended the
use of the Prospectus if the Company determines in its good faith judgment
that the business purpose should remain confidential. In addition, the Company
shall notify each Purchaser (i) of any request by the Commission for an
amendment or any supplement to such Registration Statement or any related
prospectus, or any other information request by any other governmental agency
directly relating to this Offering, and (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of such Registration Statement
or of any order preventing or suspending the use of any related prospectus or
the initiation or threat of any proceeding for that purpose.
(c) The Purchaser further covenants to notify the Company promptly of
the sale of any of its Shares, other than sales pursuant to a Registration
Statement contemplated in Section 7 of this Agreement or sales upon
termination of the transfer restrictions pursuant to Section 7.4 of this
Agreement.
5.3 Due Execution, Delivery and Performance
The Purchaser represents and warrants to the Company as follows:
(a) The Purchaser has full right, power authority and capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Purchaser
and constitutes a valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate, agency or other action and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Purchaser pursuant to, any contract, indenture, mortgage, loan agreement,
deed, trust, note, lease, sublease, voting agreement, voting trust or other
instrument or agreement to which the Purchaser is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Purchaser is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Purchaser or any applicable
statute, law, rule, regulation, ordinance, decision, directive or order.
5.4 Prohibition on Shorting
The Purchaser represents, warrants and covenants to each of the
purchasers in the PIPE Transaction and the Company that the Purchaser, its
affiliates and related entities, (a) has not held, is not currently holding
and will not hold any (i) short positions in the Company's securities or (ii)
put or other option to dispose of the Company's securities, and (b) has not
entered into and will not enter into any transaction that has the effect of or
is equivalent to selling short the Company's securities. The parties to this
Agreement intend that each of the Purchasers and the Company be direct
beneficiaries of the rights and benefits arising from the representations,
warranties and covenants made by the Purchaser under this Section 5.4, and
expressly acknowledge and agree that any such beneficiary may exercise and
enforce such rights and benefits.
5.5 Reliance by the Placement Agent; Lock-up Agreement
The Purchaser hereby acknowledges that the Placement Agent may rely
on the representations, warranties and covenants set forth in this Section 5
as if such representations, warranties and covenants were made to the
Placement Agent directly. The Purchaser further acknowledges that it has
executed and delivered to the Placement Agent a lock-up agreement in the form
furnished by the Placement Agent (and that such agreement applies to the
Shares purchased hereunder) and hereby agrees to abide by the terms of such
agreement.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this
Agreement, all covenants, agreements, representations and warranties made by
the Company and the Purchaser in this Agreement and in the certificates for
the Purchaser's Shares delivered pursuant to this Agreement shall survive the
execution of this Agreement, the delivery to the Purchaser of the Purchaser's
Shares being purchased and the payment therefor; provided, that the
representations and warranties contained herein shall survive for a period of
only two (2) years after the Closing Date.
7. FORM D FILING; REGISTRATION
The Company shall file in a timely manner a Form D relating to the
sale of the Shares under this Agreement, pursuant to Securities and Exchange
Commission Regulation D. In addition, Purchaser's Shares shall be subject to
the registration rights granted pursuant to the terms of Section 5 of the
Stockholder Agreement by and between the Company, Purchaser and Xxxx Xxxxxxx,
dated as of December 15, 2000, as amended by Amendment to Stockholder
Agreement dated as of November 5, 2001 (collectively the "Stockholder
Agreement"), and such Purchaser's Shares shall be deemed to be "Registrable
Securities" as defined in the Stockholder Agreement, with all rights and
obligations attendant thereto. In accordance with such registration rights,
the Company hereby agrees to include Purchaser's Shares in the registration
statement on Form S-3 to be filed in accordance with the terms of the PIPE
Transaction.
8. BROKER'S FEE
The Purchaser acknowledges that the Company intends to pay to the
Placement Agent and ABN AMRO Incorporated a fee in respect of the sale of the
Shares to the Purchasers. Each of the parties to this Agreement hereby
represents that, on the basis of any actions and agreements by it, there are
no other brokers or finders entitled to compensation in connection with the
sale of the Shares to the Purchasers. The Company shall indemnify and hold
harmless the Purchaser from and against all fees, commissions or other
payments owing by the Company or the Other Purchasers to the Placement Agent,
ABN AMRO Incorporated or any other person or firm acting on behalf of the
Company hereunder.
9. NOTICES
All notices, requests, consents and other communications under this
Agreement shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be delivered as addressed as
follows:
(a) if to the Company, to:
Xxxxxxx Technology, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Rock, Esq.
or to such other person at such other place
as the Company shall designate to the
Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth on the signature
page to this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight
courier or three days after deposit of such registered or certified airmail
with the U.S. Postal Service, as applicable.
10. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and each of the Purchasers.
11. TERMINATION
This Agreement may be terminated by the Purchaser if the Closing has
not occurred on or before one hundred twenty (120) days from the date of this
Agreement. This Agreement may be terminated by the Company if the Closing has
not occurred on or before one hundred eighty (180) days from the date of this
Agreement; provided, the Company has used its reasonable best efforts to cause
the Commission to declare the Registration Statement effective.
12. HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part
of this Agreement.
13. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall
not in any way be affected or impaired thereby.
14. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the state of Delaware and the federal law of the United States of
America. The parties hereto hereby submit to the jurisdiction of the courts of
the United States of America sitting in the State of Wisconsin, over any
action, suit, or proceeding arising out of or relating to this Agreement.
Nothing herein shall affect the right of the Purchaser to serve process in any
manner permitted by law or limit the right of the Purchaser to bring
proceedings against the Company in the competent courts of any other
jurisdiction or jurisdictions.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together,
shall constitute but one instrument, and shall become effective when one or
more counterparts have been signed by each party to this Agreement and
delivered to the other parties.
[Signature pages follow]
SHARE PURCHASE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the
day and year first above written.
XXXXXXX TECHNOLOGY, INC.,
By /s/Ludger Viefhues
-------------------------------------
Name: Ludger Viefhues
Its: _______________________________
STEAG ELECTRONIC SYSTEMS AG
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board of Managers
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Manager
APPENDIX I
XXXXXXX TECHNOLOGY, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in (this is
the name that will appear on your stock certificate(s)). You may
use a nominee name if appropriate:
----------------------------------
2. The relationship between the Purchaser of the Purchaser's Shares
and the Registered Holder listed in response to item 1
above:
----------------------------------
3. The mailing address of the Registered Holder listed in response to
item 1 above:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4. The Social Security Number or Tax Identification Number of the
Registered Holder listed in response to item 1 above:
5. Special Instructions:
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Appendix II
XXXXXXX TECHNOLOGY, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
-------------------------------------------------------
2. Please provide the number of shares that you or your organization
will own immediately after Closing, including those Shares purchased by you or
your organization pursuant to this Purchase Agreement and those shares
purchased by you or your organization through other transactions:
---------------------------------------------
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
APPENDIX III
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
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[fill in official name of individual or institution]
hereby certifies that he/she/it is the Purchaser of the shares evidenced by
the attached certificate, and as such, sold such shares on ________________,
200__ in accordance with Registration Statement number 333-________________,
and complied with the requirement of delivering a current prospectus in
connection with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):
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Name of Individual representing Purchaser (if an Institution)
------------------------------------------------------------------------------
Title of Individual representing Purchaser (if an Institution):
------------------------------------------------------------------------------
Signature:
Individual Purchaser or Individual representing Purchaser:
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