EXHIBIT 4.6
ADE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of May 31,
1998, by and among ADE Corporation, a Massachusetts corporation ("ADE"), and the
persons listed as Purchasers on the Schedule of Holders attached hereto as
Exhibit A (the "Purchasers").
RECITALS
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A. The Purchasers are parties to the Agreement and Plan of Merger dated
March 8, 1998 (the "Merger Agreement") by and among ADE, Theta Acquisition
Corp., an Arizona corporation ("Subsidiary"), Phase Shift Technology, Inc. an
Arizona corporation ("PST"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to
which Subsidiary was merged with and into PST.
B. The obligations of the Purchasers under the Merger Agreement are
conditioned upon, among other things, the execution and delivery of this
Agreement by ADE.
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 other
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Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.01 par value, of ADE.
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"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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Purchasers pursuant to the Merger Agreement; provided, however, that such shares
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of Common Stock shall 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 ADE, 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 ADE shall
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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, ADE 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 ADE by any Holder within fifteen business days after receipt
of written notice from ADE.
(b) Underwriting. If the registration of which ADE gives notice is for a
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registered public offering involving an underwriting, ADE 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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ADE 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 ADE. 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 ADE 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
ADE.
(c) Right to Terminate Registration. ADE shall have the right to terminate
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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 ADE shall receive from Initiating
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Holders a written request that ADE 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 ADE is a registrant entitled to use Form S-3 to
register the Registrable Securities for such an offering, ADE shall use its best
efforts to cause such Registrable Securities to be registered for the offering
on such form; provided, however, that (i) ADE shall not be required to effect
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more than one registration pursuant to this Section 2.2 and (ii) ADE shall not
be obligated to effect any such registration prior to the filing by ADE with the
Commission of financial statements of ADE with a minimum of thirty (30) days of
the combined financial results of ADE and PST. ADE shall give other Holders
written notice not less than fifteen business 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, ADE shall not be obligated to take any
action pursuant to this Section 2.2:
(i) If ADE, 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
with the Commission of a registration statement to which the provisions of
Section 2.1 apply 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);
(ii) During the period starting with the date sixty (60) days prior to
ADE's estimated date of filing of, and ending on the date three (3) months
immediately following the effective
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date of, any registration statement pertaining to securities of ADE to which the
provisions of Section 2.1 apply (other than a registration of securities in a
Rule 145 transaction or with respect to an employee benefit plan), provided that
ADE is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If, within ten (10) days of receipt of the notice provided for in
Section 2.2(a), ADE shall furnish to the Initiating Holders a certificate signed
by the President of ADE stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to ADE or its stockholders for
registration statements to be filed in the near future, then ADE'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 ADE may not
exercise this deferral right more than once per twelve month period.
Notwithstanding the provisions of Section 2.8, the period of time during which a
Holder may require ADE to register his Registrable Securities shall be extended
by the length of time that the filing of a registration statement is deferred
pursuant to this paragraph.
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 ADE. Notwithstanding
the foregoing, ADE 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, unless the withdrawal is based upon
material adverse information concerning ADE 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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ADE pursuant to this Agreement, ADE will keep each Holder advised in writing as
to the initiation of such registration and as to the completion thereof. ADE
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 180 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 ADE, dated
the effective date of the registration statement, and (ii) a "comfort" letter
signed by the independent public accountants who have certified ADE'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 ADE'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 ADE are then listed.
2.5 INDEMNIFICATION.
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(a) ADE 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 ADE
of the Securities Act, the Exchange Act, state securities law or any rule or
regulation promulgated under such laws applicable to ADE in connection with any
such registration, and ADE 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 ADE 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 ADE 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 ADE, each of its directors and officers, each
person who controls ADE within the meaning of Section 15 of the Securities Act,
and each other holder of ADE'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 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)
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to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse ADE,
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 ADE 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 Securities
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included in any registration shall furnish to ADE such information regarding
such Holder or Holders, the Registrable Securities held by them and the
distribution proposed by such Holder or Holders as ADE 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 ADE to register
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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 ADE 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.
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
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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 ADE
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 A, or at such other address as such Holder shall have furnished to ADE,
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with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Rockwell Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to ADE, to:
ADE Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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or at such other address as ADE shall have furnished to the Holders, with a copy
to:
Warner & ▇▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been received 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:
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
PURCHASERS:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
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SCHEDULE OF HOLDERS
(to the Registration Rights Agreement)
PURCHASERS
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Address ________________
_______________________
▇▇▇▇▇ ▇▇▇▇▇▇
Address ________________
_______________________
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