Exhibit 10.1
EXECUTION COPY
EXCHANGE AND PURCHASE
AGREEMENT
This Exchange and Purchase Agreement
(this “ Agreement ”) is made and entered into as
of this 14 th day of December, 2006, by and
between
(the “ Holder ”), and Credence Systems
Corporation, a Delaware corporation (the “ Company
”).
RECITALS
WHEREAS, the Holder currently holds
$
principal amount of the Company’s 1.5% Convertible
Subordinated Notes due 2008 (the “ Outstanding Notes
”);
WHEREAS, the Holder desires to
exchange the Outstanding Notes for an equal principal amount of the
Company’s 3.5% Convertible Senior Subordinated Notes due 2010
(the “ Exchange Notes ”) on the terms and
conditions set forth in this Agreement (the “ Note
Exchange ”);
WHEREAS, the Company desires to
issue to the Holder $
principal amount of Exchange Notes in exchange for the Outstanding
Notes in the Note Exchange;
WHEREAS, the Company desires to
issue and sell to the Holder $
principal amount of the Company’s 3.5% Convertible Senior
Subordinated Notes due 2010, which shall have identical terms
(except for principal amount) as those set forth in the Exchange
Notes (the “ New Notes ,” and together with the
Exchange Notes, the “ 3.5% Notes ”) at a
purchase price of $950 per $1,000 principal amount of New
Notes;
WHEREAS, the Holder desires to
purchase $
principal amount of New Notes at a purchase price of $950 per
$1,000 principal amount of New Notes on the terms and conditions
set forth in this Agreement (the “ Sale of New Notes
” and together with the Note Exchange, the Transaction
”);
WHEREAS, the 3.5% Notes will be
issued pursuant to the Indenture, to be entered into by the Company
and the Trustee named therein (the “ Indenture
”), substantially in the form of Exhibit A
hereto;
WHEREAS, in connection with the
issuance of the 3.5% Notes the Company will agree to provide the
Holder registration rights pursuant to the Registration Rights
Agreement, to be entered into by the Company and the Holder, the
other holders of Outstanding Notes exchanging such notes for 3.5%
Notes and any other purchasers of the 3.5% Notes to be issued by
the Company, if any (the “Registration Rights
Agreement”), substantially in the form of Exhibit B
hereto;
NOW, THEREFORE, in consideration of
the premises and the agreements set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
Exchange
Section 1.1 Exchange and
Sale of the 3.5% Notes .
(a) Upon the terms and subject to
the conditions of this Agreement, at the Closing (as defined
herein), the Company shall issue and exchange to the Holder, and
the Holder agrees to accept from the Company, $
in aggregate principal amount of Exchange Notes, together with all
accrued and unpaid interest paid in cash on the Outstanding Notes
to, but excluding, the Closing Date, for $
aggregate principal amount of Outstanding Notes.
(b) Upon the terms and subject to
the conditions of this Agreement, at the Closing, the Company shall
sell to the Holder, and the Holder agrees to purchase from the
Company, the $
aggregate principal amount of New Notes at a purchase price of 95%
of the principal amount thereof (the Purchase Price
”).
Section 1.2 Closing .
The closing of the transactions contemplated by this Agreement (the
“ Closing ”) is anticipated to take place on the
third business day after the date hereof at the offices of the
Company, 1421 California Circle, Milpitas, California 95035, or on
such other date and at such other place as the parties may agree in
writing (the “ Closing Date ”). At the Closing,
(i) the Holder shall deliver or cause to be delivered to the
Company (A) all of such Holder’s right, title and
interest in and to all of the Outstanding Notes, and all
documentation related thereto, and whatever documents of conveyance
or transfer may be necessary or desirable to transfer to and
confirm in the Company all right, title and interest in and to the
Outstanding Notes and (B) the Purchase Price, and
(ii) the Company shall issue to the Holder the 3.5% Notes and
pay to the Holder in cash by wire transfer of immediately available
funds an amount equal to the accrued and unpaid interest on the
Holder’s Outstanding Notes to, but excluding, the day of the
Closing.
Section 1.3 Conditions to
Closing . (i) The obligation of the Holder hereunder to
consummate the transactions contemplated hereby at the Closing is
subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for
the Holder’s sole benefit and may be waived by the Holder at
any time in its sole discretion by providing the Company with prior
written notice thereof:
(a) The Company shall have executed
and delivered this Agreement to Holder;
(b) The Company and the Trustee
shall have executed and delivered the Indenture;
(c) The Company shall have executed
and delivered the 3.5% Notes in the aggregate principal amount set
forth in Section 1.1;
(d) The Company shall have executed
and delivered the Registration Rights Agreement to
Holder;
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(e) The Company shall have submitted
an additional share listing application for the shares of Common
Stock issuable upon conversion of the 3.5% Notes with the Nasdaq
Global Select Market and the shares of Common Stock issuable upon
conversion of the 3.5% Notes shall have been approved by the Nasdaq
Global Select Market for listing prior to the Closing;
(f) The Company shall have delivered
to the Holder and Piper Jaffray & Co. a certificate of the
Company, dated the Closing Date, executed by the secretary of the
Company certifying in such capacity and on behalf of the Company
(i) as to the incumbency and signature of the officer of the
Company who executed this Agreement and the 3.5% Notes; and
(ii) as to the adoption of resolutions of the board of
directors of the Company which are in full force and effect on the
Closing Date, authorizing (x) the execution and delivery of
this Agreement, the Indenture, the Registration Rights Agreement
and the 3.5% Notes; and (y) the performance of the obligations
of the Company hereunder and thereunder;
(g) The Company shall have delivered
to the Holder and Piper Jaffray & Co. a certificate of the
Chief Executive Officer or Chief Financial Officer of the Company,
dated the Closing Date, to the effect that the representations and
warranties of the Company in this Agreement are true and correct on
and as of the Closing Date with the same effect as if made on the
Closing Date and that the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(h) Simultaneously with the Closing,
the Company shall issue an aggregate principal amount of 3.5% Notes
that, together with notes issued to Other Holders (as defined
below) is not less than $122,500,000, of which at least $72,500,000
million aggregate principal amount shall be Exchange
Notes;
(i) Subsequent to the execution and
delivery of this Agreement and prior to the Closing Date, there
shall have been no suspension or material limitation of trading in
the Common Stock on The Nasdaq Global Select Market;
(j) The 3.5% Notes shall have been
approved for trading on The PORTAL Market of the National
Association of Securities Dealers, Inc., subject only to notice of
issuance at or prior to the time of purchase;
(k) The Company shall have obtained
a Committee on Uniform Securities Identification Procedures number
(CUSIP number) for the 3.5% Notes;
(l) The 3.5% Notes satisfy the
requirements set forth in Rule 144A(d)(3) under the Securities Act;
and
(m) The Company shall have delivered
to Holder and Piper Jaffray & Co. the opinion of
Morrison & Foerster LLP, dated as of the Closing Date, in
substantially the form of Exhibit C attached
hereto.
(ii) The obligation of the Company
hereunder to consummate the transactions contemplated hereby at the
Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these
conditions are for the Company’s sole
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benefit and may be waived by the Company at any
time in its sole discretion by providing the Holder with prior
written notice thereof:
(a) The Holder shall have executed
and delivered to the Company this Agreement;
(b) The Holder shall have executed
and delivered to the Company the Registration Rights Agreement;
and
(c) The Holder shall have delivered,
or caused to be delivered, to the Company the Outstanding Notes
being exchanged pursuant to this Agreement and the Purchase Price
in accordance with the written instructions of the
Company.
Section 1.4 Exchange of Sale
of Additional Notes . Simultaneously with the Closing, the
Company (i) shall enter into one or more agreements
substantially identical to this Agreement (the “ Other
Agreements ”) with one or more holders (the “
Other Holders ”) of Outstanding Notes to exchange
Exchange Notes with one or more Other Holders for Outstanding
Notes, subject to the terms of the Indenture, in an aggregate
principal amount that, together with the Exchange Notes issued
pursuant to this Agreement, is not less than $72,500,000, and
(ii) may issue New Notes pursuant to one or more Other
Agreements, subject to the terms of the Indenture, with one or more
Other Holders and/or any new Holders, so long as the purchase price
for any such New Notes is not less than $950 per $1,000 principal
amount of New Notes.
ARTICLE II
Representations and Warranties of
the Holder
The Holder hereby makes the
following representations and warranties, each of which is true and
correct on the date hereof and shall survive the Closing Date and
the transactions contemplated hereby to the extent set forth
herein.
Section 2.1 Existence and
Power .
(a) The Holder is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and has the power, authority and
capacity to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions
contemplated hereby.
(b) The execution of this Agreement
by the Holder and the consummation by the Holder of the
transactions contemplated hereby do not and will not constitute or
result in a breach, violation, conflict or default under any note,
bond, mortgage, deed, indenture, lien, instrument, contract,
agreement, lease or license to which the Holder is a party, whether
written or oral, express or implied, or any statute, law,
ordinance, decree, order, injunction, rule, directive, judgment or
regulation of any court, administrative or regulatory body,
governmental authority, arbitrator, mediator or similar body on the
part of the Holder or on the part of any other party thereto or
cause the acceleration or termination of any obligation or right of
the Holder, except for such breaches, conflicts, defaults, rights
or violations which would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
ability of the Holder to perform its obligations
hereunder.
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Section 2.2 Valid and
Enforceable Agreement; Authorization . This Agreement has been
duly executed and delivered by the Holder and constitutes a legal,
valid and binding obligation of the Holder, enforceable against the
Holder in accordance with its terms, except that such enforcement
may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to
enforcement of creditors’ rights generally, and
(b) general principles of equity.
Section 2.3 Title to
Outstanding Notes . The Holder is the sole beneficial owner of
and has good and valid title to the Outstanding Notes being
exchanged by such Holder hereby, free and clear of any mortgage,
lien, pledge, charge, security interest, encumbrance, title
retention agreement, option, equity or other adverse claim thereto.
The Holder has not, in whole or in part, (i) assigned,
transferred, hypothecated, pledged or otherwise disposed of the
Outstanding Notes or its rights in such Outstanding Notes being
exchanged or redeemed by such Holder hereby, or (ii) given any
person or entity any transfer order, power of attorney or other
authority of any nature whatsoever with respect to such Outstanding
Notes.
Section 2.4 Investment
Decision . The Holder is either (i) a “qualified
institutional buyer” within the meaning of Rule 144A under
the Securities Act of 1933, as amended (the “ Securities
Act ”) or (ii) an “accredited investor”
within the meaning of Rule 501 of Regulation D under the Securities
Act, and in either case was not organized for the purpose of
acquiring the 3.5% Notes or the shares of the Company’s
common stock (the “ Common Stock ”), $0.001 par
value per share, into which the 3.5% Notes may be converted (the
“ Underlying Common Stock ”). The Holder (or its
authorized representative) is familiar with the Company’s
objectives and business plan, has had the opportunity to review the
Company’s filings with the Securities and Exchange Commission
(the “ SEC ”), including, without limitation,
the Company’s Annual Report on Form 10-K filed on
January 17, 2006, the Company’s Quarterly Reports on
Form 10-Q filed on each of March 10, 2006, June 9,
2006 and September 11, 2006, the Company’s Definitive
Proxy Statement filed on February 24, 2006, and the
Company’s Current Reports on Form 8-K filed on March 2,
2006, March 21, 2006, March 25,
2006, May 25, 2006, August 9,
2006, August 24, 2006, September 11,
2006, November 13, 2006, December 7, 2006 and
December 8, 2006 and the Company’s Amended Current
Report on Form 8-K/A filed on December 8, 2006 (all of such
filings with the SEC referred to, collectively, as the “
SEC Documents ”). The Holder has reviewed copies of
each of the Indenture and the Registration Rights Agreement,
including copies of each of the Indenture and Registration Rights
Agreement marked to show the differences between such documents and
the respective indenture and registration rights agreement related
to the Outstanding Notes, and has had an opportunity to ask
questions of the Company and to obtain from representatives of the
Company such information as is necessary to determine the changes
reflected in each such document, including the changes to the terms
of the 3.5% Notes compared with the Outstanding Notes. The Holder
has had such opportunity to ask questions of the Company and its
representative and to obtain from representatives of the Company
such information as is necessary to permit it
