Exhibit 10.1
AMENDMENT TO
10% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 30, 1995,
10% CONVERTIBLE SUBORDINATED NOTE DUE JANUARY 31, 1996
AND 10% CONVERTIBLE SUBORDINATED NOTES DUE APRIL 24, 1996
Amendment made this 9th day of April, 1998 by Ceramics Process
Systems Corporation, a Delaware corporation ( the `Company`), and the
holders listed on Schedule I hereto (the `Noteholders`) of the
Company`s outstanding 10% Convertible Subordinated Notes Due June 30,
1995, as amended (the `June Notes`), 10% Convertible Subordinated Note
Due January 31, 1996 (the `January Note`) and 10% Convertible
Subordinated Notes Due April 24, 1996 (The `April Notes`). The June
Notes, January Note and April Notes are collectively referred to herein
as the `Notes.`
Except as set forth below, the Notes shall remain in full force
and effect. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Notes. This Amendment
is signed by the holders of the requisite percentage of the principal
amount of the Notes outstanding on the date hereof necessary to amend
the Notes in accordance with Section 6 (c) thereof.
For valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and Noteholders agree as follows:
1. The title of each of the Notes shall be deleted in its
entirety and a new title shall be substituted in its place as
follows:
`10% Convertible Subordinated Note Due January 15, 1999`.
2. All references to (I) `June 30, 1995` in the first two
paragraphs of the June Notes, (ii) `January 31, 1996` in the
first two paragraphs of the January Note and (iii) `April 24`
in the first two paragraphs of the April Notes shall be
deleted and, in each case, the following shall be substituted
in their place:
`January 15, 1999`.
3. Section 3 of the Notes shall be deleted in its entirety and a
new Section 3 shall be substituted in its place as follows:
`3. Prepayment of Principal and Interest.
The principal indebtedness represented by this Note and
interest accrued but unpaid thereon may be prepaid in whole or
in part at any time or from time to time without premium or
penalty, provided, that, the Company provides the holder of
this Note with 15 days` prior written notice of its intention
so to prepay.`
4. Clause (a) of Section 4 of the Notes shall be deleted in its
entirety and a new clause (a) shall be substituted in its
place as follows:
`(a) If default in payment under any of the Subordinated
Notes, any Senior Indebtedness or any other loan instrument of
the Company of any installment of interest or principal when
it becomes due, which default shall remain unremedied for ten
(10) days.`
5. The Notes, as supplemented and modified by this Amendment,
together with the other writings referred to in the Notes or
delivered pursuant thereto which form a part thereof, contain
the entire agreement among the parties with respect to the
subject matter thereof and amend, restate and supersede all
prior and contemporaneous arrangements or understandings with
respect thereto.
6. Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in the Notes to `this Note,`
`hereunder,` `herein` or words of like import, and each
reference in the other documents entered into in connection
with the Notes, shall mean and be a reference to the Notes, as
amended hereby. Except as specifically amended above, the
Notes shall remain in full force and effect and are hereby
ratified and confirmed.
7. This Amendment shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the
laws of the Commonwealth of Massachusetts.
8. This Amendment may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall
constitute but one agreement.
IN WITNESS WHEREOF the parties hereto have executed this
Amendment on the date first above written.
COMPANY:
CERAMICS PROCESS SYSTEMS CORPORATION
By: /s/Grant C. Bennett
Title: Chief Executive Officer
NOTEHOLDERS:
AMPERSAND SPECIALTY MATERIALS VENTURES
LIMITED PARTNERSHIP
ASMV Management Company Limited
ASMV MCLP LLP, its General Partner
By: /s/Richard A. Charpie
Its: Managing General Partner
AMERICAN RESEARCH & DEVELOPMENT I, L.P.
By: ARD Master, L.P.
By: Phoenix Venture Partners, Inc., General Partner
By: /s/Francis J. Hughes, Jr.
Its: Vice President
AMERICAN RESEARCH & DEVELOPMENT III, L.P.
By: ARD Master, L.P.
By: Phoenix Venture Partners, Inc., General Partner
By: /s/Francis J. Hughes, Jr.
Its: Vice President
SCHEDULE I
Schedule of Noteholders
Name and Type Principal
of Noteholder Issue Date Amount of Note
June Notes:
Ampersand Specialty Materials
Ventures Limited Partnership
February 16, 1994 $ 65,000
American Research & Development I., L.P.
February 16, 1994 $ 27,360
American Research & Development III, L.P.
February 16, 1994 $ 32,640
January Note:
Ampersand Specialty Materials
Ventures Limited Partnership
July 20, 1994 $120,000
April Notes:
Ampersand Specialty Materials
Ventures Limited Partnership
October 26, 1994 $475,000
American Research & Development I., L.P.
October 26, 1994 $ 91,200
American Research & Development III, L.P.
October 26, 1994 $108,800
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of April 9, 1998 is entered into by and
among Ceramics Process Systems Corporation, a Delaware corporation (the
`Company`), and the holders of certain 10% Convertible Subordinated
Notes of the Company (the `Notes`) signatory hereto (the
`Noteholders`).
WHEREAS, the Company and the Noteholders have amended the Notes
on the date hereof; and
WHEREAS, the Company and the Noteholders desire to provide for
certain arrangements with respect to the registration of shares of
capital stock of the Company under the Securities Act of 1933.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
`Commission` means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
`Common Stock` means the common stock, $.01 par value per share,
of the Company.
`Exchange Act` means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations
of the Commission issued under such Act, as they each may, from time to
time, be in effect.
`Registration Statement` means a registration statement filed by
the Company with the Commission for a public offering and sale of
Common Stock (other than a registration statement on Form S-8 or Form
S-4, or their successors, or any other form for a similar limited
purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
`Registration Expenses` means the expenses described in
Section 4.
`Registrable Shares` means (i) the shares of Common Stock issued
or issuable upon conversion of the Notes and (ii) any other shares of
Common Stock issued in respect of such shares (because of stock splits,
stock dividends, reclassifications, recapitalizations, or similar
events); provided, however, that shares of Common Stock which are
Registrable Shares shall cease to be Registrable Shares (i) upon any
sale pursuant to a Registration Statement or Rule 144 under the
Securities Act or (ii) upon any sale in any manner to a person or
entity which, by virtue of Section 8 of this Agreement, is not entitled
to the rights provided by this Agreement. Wherever reference is made
in this Agreement to a request or consent of holders of a certain
percentage of Registrable Shares, the determination of such percentage
shall include shares of Common Stock issuable upon conversion of the
Notes even if such conversion has not yet been effected.
`Securities Act` means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time,
be in effect.
`Stockholders` means the Noteholders and any persons or entities
to whom the rights granted under this Agreement are transferred by any
Noteholders, their successors or assigns pursuant to Section 8 hereof.
2. Incidental Registration.
(a) Whenever the Company proposes to file a Registration
Statement at any time and from time to time, it will, prior to such
filing, give written notice to all Stockholders of its intention to do
so and, upon the written request of a Stockholder or Stockholders given
within 20 days after the Company provides such notice (which request
shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all
Registrable Shares which the Company has been requested by such
Stockholder or Stockholders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution
specified in the request of such Stockholder or Stockholders; provided
that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 2 without obligation to
any Stockholder.
(b) In connection with any registration under this Section 2
involving an underwriting, the Company shall not be required to include
any Registrable Shares in such registration unless the holders thereof
accept the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (provided that such terms must be
consistent with this Agreement). If in the opinion of the managing
underwriter it is appropriate because of marketing factors to limit the
number of Registrable Shares to be included in the offering, then the
Company shall be required to include in the registration only that
number of Registrable Shares, if any, which the managing underwriter
believes should be included therein. If the number of Registrable
Shares to be included in the offering in accordance with the foregoing
is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such registration shall
participate in the registration pro rata based upon their total
ownership of shares of Common Stock (giving effect to the conversion
into Common Stock of all securities convertible thereinto). If any
holder would thus be entitled to include more securities than such
holder requested to be registered, the excess shall be allocated among
other requesting holders pro rata in the manner described in the
preceding sentence.
3. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect
the registration of any of the Registrable Shares under the Securities
Act, the Company shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause
that Registration Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement
and the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective, in the case of
a firm commitment underwritten public offering, until each underwriter
has completed the distribution of all securities purchased by it and,
in the case of any other offering, until the earlier of the sale of all
Registrable Shares covered thereby or 120 days after the effective date
thereof;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as the selling
Stockholder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Shares owned by the
selling Stockholder; and
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the
selling Stockholders shall reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the
selling Stockholders to consummate the public sale or other disposition
in such states of the Registrable Shares owned by the selling
Stockholder; provided, however, that the Company shall not be required
in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to
the selling Stockholders and after having done so the prospectus is
amended to comply with the requirements of the Securities Act, the
Company shall promptly notify the selling Stockholders and, if
requested, the selling Stockholders shall immediately cease making
offers of Registrable Shares and return all prospectuses to the
Company. The Company shall promptly provide the selling Stockholders
with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making
offers of the Registrable Shares.
4. Allocation of Expenses. The Company will pay all Registration
Expenses of all registrations under this Agreement. For purposes of
this Section 4, the term `Registration Expenses` shall mean all
expenses incurred by the Company in complying with this Agreement,
including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and expenses of counsel
for the Company and the fees and expenses of one counsel selected by
the selling Stockholders to represent the selling Stockholders, state
Blue Sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses
of selling Stockholders` own counsel.
5. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless the seller of such Registrable Shares,
each underwriter of such Registrable Shares, and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages
or liabilities, joint or several, to which such seller, underwriter or
controlling person may become subject under the Securities Act, the
Exchange Act, state securities or Blue Sky laws or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement
to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Company will reimburse such seller, underwriter and
each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus
or final prospectus, or any such amendment or supplement, in reliance
upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling
person specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller
of Registrable Shares, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors and officers and each
underwriter (if any) and each person, if any, who controls the Company
or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint
or several, to which the Company, such directors and officers,
underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of
or are based upon any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to such
seller furnished in writing to the Company by or on behalf of such
seller specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of such Stockholders hereunder shall be
limited to an amount equal to the proceeds to each Stockholder of
Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 5
(the `Indemnified Party`) shall give notice to the party required to
provide indemnification (the `Indemnifying Party`) promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity 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 be unreasonably
withheld); and, provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5. The
Indemnified Party may participate in such defense at such party`s
expense; provided, however, that the Indemnifying Party shall pay such
expense if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any
other party represented by such counsel in such proceeding. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, 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 of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either
(i) any holder of Registrable Shares exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim
for indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not
be enforced in such case notwithstanding the fact that this Section 5
provides for indemnification in such case, or (ii) contribution under
the Securities Act may be required on the part of any such selling
Stockholder or any such controlling person in circumstances for which
indemnification is provided under this Section 5; then, in each such
case, the Company and such Stockholder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportions so that such
holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Shares offered by the
Registration Statement bears to the public offering price of all
securities offered by such Registration Statement, and the Company is
responsible for the remaining portion; provided, however, that, in any
such case, (A) no such holder will be required to contribute any amount
in excess of the proceeds to it of all Registrable Shares sold by it
pursuant to such Registration Statement, and (B) no person or entity
guilty of fraudulent misrepresentation, within the meaning of
Section 11(f) of the Securities Act, shall be entitled to contribution
from any person or entity who is not guilty of such fraudulent
misrepresentation.
6. Information by Holder. Each Stockholder including Registrable
Shares in any registration shall furnish to the Company such
information regarding such Stockholder and the distribution proposed by
such Stockholder as the Company may reasonably request in writing and
as shall be required in connection with any registration, qualification
or compliance referred to in this Agreement.
7. Termination. All of the Company`s obligations to register
Registrable Shares under this Agreement shall terminate on the fifth
anniversary of this Agreement.
8. Transfers of Rights. This Agreement, and the rights and
obligations of each Noteholder hereunder, may be assigned by such
Noteholder to any person or entity to which Notes are transferred by
such Noteholder, and such transferee shall be deemed a `Noteholder` for
purposes of this Agreement; provided that the transferee provides
written notice of such assignment to the Company.
9. General.
(a) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be
delivered by hand or mailed by first class certified or registered
mail, return receipt requested, postage prepaid:
If to the Company, at Ceramics Process Systems Corporation, 111
South Worcester Street, Chartley, Massachusetts 02712-0338, Attention:
President, or at such other address or addresses as may have been
furnished in writing by the Company to the Noteholders; or
If to a Stockholder, at his or its address set forth on Schedule
I hereto, or at such other address or addresses as may have been
furnished to the Company in writing by such Noteholder.
Notices provided in accordance with this Section 9(a) shall be
deemed delivered upon personal delivery or two business days after
deposit in the mail.
(b) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
(c) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), with the written consent of the Company and the
holders of at least 50% of the Registrable Shares. No waivers of or
exceptions to any term, condition or provision of this Agreement, in
any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such term, condition or provision.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but
all of which shall be one and the same document.
(e) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
Executed as of the date first written above.
COMPANY:
CERAMICS PROCESS SYSTEMS CORPORATION
By: /s/Grant C. Bennett
Title: Chief Executive Officer
NOTEHOLDERS:
AMPERSAND SPECIALTY MATERIALS VENTURES
LIMITED PARTNERSHIP
ASMV Management Company Limited
ASMV MCLP LLP, its General Partner
By: /s/Richard A. Charpie
Its: Managing General Partner
AMERICAN RESEARCH & DEVELOPMENT I, L.P.
By: ARD Master, L.P.
By: Phoenix Venture Partners, Inc., General Partner
By: /s/Francis J. Hughes, Jr.
Its: Vice President
AMERICAN RESEARCH & DEVELOPMENT III, L.P.
By: ARD Master, L.P.
By: Phoenix Venture Partners, Inc., General Partner
By: /s/Francis J. Hughes, Jr.
Its: Vice President
Schedule I
Noteholders
Ampersand Specialty Materials
Ventures Limited Partnership
55 William Street, Suite 240
Wellesley, MA 02181
American Research & Development I, L.P.
30 Federal Street
Boston, MA 02110
American Research & Development III, L.P.
30 Federal Street
Boston, MA 02110