REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of January, 1997,
by and between CERPROBE CORPORATION, a Delaware corporation ("Cerprobe"), and
WILLIAM E. MAYER AND CAROL MAYER, husband and wife (jointly and severally,
"Shareholder").
RECITALS
A. The Common Stock (as hereinafter defined) of Cerprobe is quoted on
The Nasdaq National Market System.
B. Cerprobe, EMI Acquisition, Inc., a Delaware corporation and a
wholly-owned subsidiary of Cerprobe ("Acquisition"), Silicon Valley Test &
Repair, Inc., a California corporation ("Company"), and Shareholder are parties
to that certain Agreement of Merger and Plan of Reorganization, dated the date
hereof, providing for, among other things, the merger (the "Merger") of Company
into Acquisition (the "Agreement of Merger").
C. Article III of the Agreement of Merger provides that upon the Merger
occurring, Shareholder is to receive certain shares of the Common Stock of
Cerprobe. Article IV of the Agreement of Merger provides that Shareholder may
receive additional shares of the Common Stock of Cerprobe if certain conditions
are satisfied. The shares of Common Stock of Cerprobe that Shareholder receives
pursuant to Article III of the Agreement of Merger, and the shares of Common
Stock of Cerprobe that Shareholder may receive pursuant to Article IV of the
Agreement of Merger are collectively referred to as the "Shares."
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Piggyback Registrations.
(a) If Cerprobe undertakes to file with the United States
Securities and Exchange Commission (the "SEC") a registration statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), covering the sale of shares of the common stock, par value
$.05 per share, of Cerprobe (the "Common Stock") for the account of any holder
of Common Stock other than: (i) Shareholder; or (ii) for the account of
Cerprobe, and other than a registration: (aa) on Form S-4; (bb) in connection
with a Rule 145 transaction; (cc) on Form S-8; or (dd) any other appropriate
form or any successor or other comparable form, then on each such occasion
Cerprobe shall give
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Shareholder at least fifteen (15) days prior written notice of the initial
filing of the Registration Statement (the "Filing Notice").
If Shareholder desires to have any of the Shares registered in the
Registration Statement, then Shareholder shall notify Cerprobe in writing of
Shareholder's desire and deliver such written notice to Cerprobe within ten (10)
days of receiving the Filing Notice from Cerprobe. If Shareholder timely
notifies Cerprobe of Shareholder's desire to register the Shares for sale, then
Cerprobe, with the consent and the approval of the underwriters selected by
Cerprobe to assist Cerprobe in the offering covered by the Registration
Statement (such consent and approval to be in the sole discretion of such
underwriters), shall include in that Registration Statement, on the same terms
and conditions (except as otherwise provided in this Agreement) as the other
Common Stock to be offered for sale pursuant to the Registration Statement
(except as otherwise provided in this Agreement), the following number of the
Shares, or such smaller number of the Shares as Shareholder shall elect to have
registered:
B
A x ---
C
Where A equals the total number of Shares acquired by Shareholder pursuant to
the Agreement of Merger that are held of record by Shareholder on the date of
the Filing Notice; and
Where B equals the number of shares of Common Stock being registered for the
person, firm or entity (other than Cerprobe) for whom the largest percentage of
shares of Common Stock held by him, her or it is being registered; and
Where C equals the total number of shares of Common Stock held by such person,
firm or entity.
(b) Notwithstanding any other provisions of this Section 1, if
the underwriters selected by Cerprobe advise Cerprobe that, in the sole
discretion of such underwriters, marketing factors require a limitation on the
number of shares to be underwritten, then Cerprobe may exclude all or any
portion of the shares of Common Stock or Shareholder's Shares to be registered
by the holders thereof (other than by Cerprobe) or limit the number of such
shares or Shareholder's Shares to be included. Any such reduction shall, to the
extent reasonably practicable, be allocated among such holders, including
Shareholder, pro rata on the basis of the number of shares requested for
inclusion in the Registration Statement.
(c) All brokerage fees, discounts and commissions in respect
of the registration of the Shares or any portion thereof under this Agreement
and applicable transfer taxes payable upon the sale of the Shares so registered,
in connection with the registration of the Shares or any portion thereof under
this Agreement shall be paid and borne by Cerprobe to the extent paid and borne
by Cerprobe for any other shareholder (other than Cerprobe) selling Common Stock
under the Registration Statement, otherwise such fees, discounts and commissions
shall be paid and
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borne by Shareholder. Any counsel fees or disbursements for counsel for
Shareholder and any out-of-pocket expenses otherwise incurred by Shareholder
shall be paid and borne by Shareholder.
(d) If any piggyback registration of Cerprobe's Common Stock
in which Shareholder elects to participate under this Agreement is to be an
underwritten offering, the selection of underwriters, investment banker(s) and
manager(s) for the offering shall be solely at the discretion of the Board of
Directors of Cerprobe.
2. Lock-up Agreements. If any portion of Shareholder's Shares is
registered in the Registration Statement (the "Registration"), then Shareholder
shall not, unless the underwriters selected by Cerprobe otherwise agree in
writing, effect any public sale or distribution of any other equity securities
of Cerprobe, or any securities convertible into or exchangeable or exercisable
for those securities, during the period commencing on the filing date of the
Registration Statement with the SEC, and ending one hundred eighty (180) days
after the effective date of any such Registration, or such longer period as the
other selling shareholders (other than Cerprobe) may agree.
3. Registration Procedures. Whenever Shareholder has requested that the
Shares, or any portion thereof, subject to this Agreement be registered pursuant
to this Agreement, Cerprobe will use its reasonable efforts to effect the
registration and the sale of such Shares in accordance with the intended method
of disposition thereof, and pursuant thereto Cerprobe will:
(a) prepare and file with the SEC a Registration Statement
with respect to such Shares and use its reasonable efforts to cause the
Registration Statement to become effective; provided, however, Cerprobe shall
have the sole right and discretion to withdraw or terminate any Registration;
(b) furnish to Shareholder such reasonable number of copies of
the Registration Statement, each amendment and supplement thereto, the
prospectus included in such Registration Statement (including each preliminary
prospectus) in order to facilitate the disposition of such Shares owned by
Shareholder; and
(c) provide or continue to provide a transfer agent and
registrar for such Shares not later than the effective date of the Registration
Statement.
4. Registration Expenses. Except as otherwise set forth in this
Agreement, all expenses incident to Cerprobe's performance of or compliance with
this Agreement, including all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for Cerprobe and all
independent certified public accountants of Cerprobe, underwriters (excluding
brokerage fees, discounts and commissions) and other persons retained by
Cerprobe will be borne by Cerprobe.
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5. Agreement to Cooperate. With respect to any Registration in which
Shareholder elects to participate, Shareholder agrees to cooperate fully with
Cerprobe in effecting the registration and qualification of the shares of Common
Stock and Shareholder's Shares and of such distribution of the shares of Common
Stock and Shareholder's Shares.
6. Participation in Underwritten Registrations. Shareholder may
participate in any Registration pursuant to this Agreement which is underwritten
only if Shareholder (a) agrees to sell his Shares being registered on the basis
provided in any underwriting arrangements approved by the Board of Directors of
Cerprobe, and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
7. Termination of Company Obligations. Cerprobe's obligations under
this Agreement to register the Shares or any portion thereof shall terminate
upon the earlier of (i) receipt by Cerprobe of an opinion from its counsel that
registration is not required under the 1933 Act in order for Shareholder to
publicly sell any of the Shares; (ii) receipt by Shareholder from the SEC of a
"no-action" letter to the effect that the staff of the SEC will not recommend
that the SEC institute action against Shareholder in connection with the
proposed sale of the Shares, or any portion thereof; or (iii) January 15, 2000.
8. Miscellaneous.
(a) Successors and Assigns. All covenants and agreements in
this Agreement made by or on behalf of Cerprobe shall inure to the benefit of
Shareholder, his heirs, estate and personal representatives, but shall not inure
to or benefit any assignee of Shareholder or any successor in interest of
Shareholder to any shares of the Common Stock, except as permitted in this
Section 8(a), without the prior written consent of Cerprobe exercised in its
sole discretion.
(b) Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered in
person, or three (3) business days after being placed in the hands of a courier
service (e.g., DHL or Federal Express) prepaid or faxed provided that a
confirming copy is delivered forthwith as herein provided, addressed as follows:
If to Shareholder:
------------------
William E. Mayer
6519 Old Meadow Court
San Jose, California 95135
FAX: 408-270-6957
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With copies to:
Richard G. Burt, Esq.
Ten Almaden Blvd., 11th Floor
San Jose, California 95113
FAX: 408-286-7342
Martin A. Snitow, Esq.
5300 Stevens Creek Blvd., Suite 300
San Jose, California 95129-1091
FAX: 408-985-7595
If to Cerprobe:
Cerprobe Corporation
600 South Rockford Drive
Tempe, Arizona 85281
Attention: C. Zane Close
FAX: 602-967-4636
With a copy to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, P.A.
One E. Camelback Road, Suite 1100
Phoenix, Arizona 85012-1656
Attention: John B. Furman, Esq.
FAX: 602-263-2900
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section.
(c) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the registration of the Shares and
shall be binding upon and inure to the benefit of the parties hereto and, except
as provided above, their respective legal representatives, successors and
permitted assigns. Any amendments, or alternative or supplementary provisions to
this Agreement must be made in writing and duly executed by an authorized
representative or agent of each of the parties hereto.
(d) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
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(e) Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of any other
provision of this Agreement or the remaining portion of the applicable
provision.
(f) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONTROLLED AS TO VALIDITY, ENFORCEMENT, INTERPRETATION, CONSTRUCTION, EFFECT AND
IN ALL OTHER RESPECTS BY THE INTERNAL LAWS OF THE STATE OF ARIZONA APPLICABLE TO
CONTRACTS MADE IN THAT STATE.
(g) Construction. The parties hereto acknowledge and agree
that each party has participated in the drafting of this Agreement and that this
document has been reviewed by the respective legal counsel for the parties
hereto and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Agreement. No inference in favor of, or against,
any party shall be drawn from the fact that one party has drafted any portion
hereof.
(h) Attorneys' Fees. If any action is brought to enforce this
Agreement or to collect damages as a result of a breach of any its provisions,
the prevailing party shall also be entitled to collect its reasonable attorneys'
fees and costs incurred in such action, which costs can include the reasonable
costs of investigation, expert witnesses and the costs in enforcing or
collecting any judgment rendered, all as determined and awarded by the Court.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SHAREHOLDER: CERPROBE CORPORATION
- ---------------------------- By:
William E. Mayer ---------------------------------------
Name:
-------------------------------------
Its:
-------------------------------------
- ---------------------------
Carol Mayer
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