EXHIBIT 10FF
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of
March 9, 2004, by and between MICRO COMPONENT TECHNOLOGY,
INC., a Minnesota corporation (the “Company”), and
Laurus Master Fund, Ltd. (the “Purchaser”).
This Agreement is made pursuant to
the Securities Purchase Agreement, dated as of the date hereof, by
and between the Purchaser and the Company (the “Securities
Purchase Agreement”), and pursuant to the Note referred to
therein.
The Company and the Purchaser hereby
agree as follows:
Definitions. Capitalized terms used and not otherwise
defined herein that are defined in the Securities Purchase
Agreement shall have the meanings given such terms in the
Securities Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
shares of the Company’s common stock, par value $0.01 per
share.
“Effectiveness Date”
means the 90th day following the date hereof.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing Date” means,
with respect to the Registration Statement required to be filed
hereunder, a date no later than thirty (30) days following the date
upon which the principal amount of the Term Loan to the Company in
original principal amount of $2,000,000 has been funded to the
Company.
“Holder” or
“Holders” means the Purchaser or any of its affiliates
or transferees to the extent any of them hold Registrable
Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Note” has the meaning
set forth in the Securities Purchase Agreement.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
10FF-1
“Prospectus” means the
prospectus included in the Registration Statement (including,
without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration
Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
“Registrable Securities”
means the shares of Common Stock issued upon the conversion of the
Note.
“Registration Statement”
means each registration statement required to be filed hereunder,
including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference
in such registration statement.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
“Rule 415” means Rule
415 promulgated by the Commission pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
“Rule 424” means Rule
424 promulgated by the Commission pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
“Securities Act” means
the Securities Act of 1933, as amended, and any successor
statute.
“Securities Purchase
Agreement” means the agreement between the parties hereto
calling for the issuance by the Company of up to $2,000,000 of
convertible Notes.
“Trading Market” means
any of the NASD OTC Bulletin Board, NASDAQ SmallCap Market, the
Nasdaq National Market, the American Stock Exchange or the New York
Stock Exchange.
Registration.
On or prior to the Filing Date the Company shall
prepare and file with the Commission a Registration Statement
covering the Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-3 (except if the Company is not then
eligible to register for resale the Registrable Securities on Form
S-3, in which case such registration shall be on another
appropriate form in accordance herewith). The Company shall
cause the Registration Statement to become effective and remain
effective as provided herein. The Company shall use its
reasonable commercial efforts to cause the Registration Statement
to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event no later than
the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep the Registration Statement continuously
effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities have been sold
or (ii) all Registrable Securities may be sold
immediately
10FF-2
without registration under the Securities Act
and without volume restrictions pursuant to Rule 144(k), as
determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the
Company’s transfer agent and the affected Holders (the
“Effectiveness Period”).
If: (i) the Registration Statement is not filed
on or prior to the Filing Date; (ii) the Registration Statement is
not declared effective by the Commission by the Effectiveness Date;
(iii) after the Registration Statement is filed with and declared
effective by the Commission, the Registration Statement ceases to
be effective (by suspension or otherwise) as to all Registrable
Securities to which it is required to relate at any time prior to
the expiration of the Effectiveness Period (without being succeeded
immediately by an additional registration statement filed and
declared effective) for a period of time which shall exceed 30 days
in the aggregate per year or more than 20 consecutive calendar days
(defined as a period of 365 days commencing on the date the
Registration Statement is declared effective); or (iv) the Common
Stock is not listed or quoted, or is suspended from trading on any
Trading Market for a period of three (3) consecutive Trading Days
(provided the Company shall not have been able to cure such trading
suspension within 30 days of the notice thereof or list the Common
Stock on another Trading Market); (any such failure or breach being
referred to as an “Event,” and for purposes of clause
(i) or (ii) the date on which such Event occurs, or for purposes of
clause (iii) the date which such 30 day or 20 consecutive day
period (as the case may be) is exceeded, or for purposes of clause
(iv) the date on which such three (3) Trading Day period is
exceeded, being referred to as “Event Date”), then
until the applicable Event is cured, the Company shall pay to each
Holder an amount in cash, as liquidated damages and not as a
penalty, equal to 1.0% for each thirty (30) day period (prorated
for partial periods) on a daily basis of the original principal
amount of the Note. While such Event continues, such
liquidated damages shall be paid not less often than each thirty
(30) days. Any unpaid liquidated damages as of the date when
an Event has been cured by the Company shall be paid within three
(3) days following the date on which such Event has been cured by
the Company.
Registration Procedures. If and whenever the Company is required
by the provisions hereof to effect the registration of any
Registrable Securities under the Securities Act, the Company will,
as expeditiously as possible:
prepare and file with the Commission the
Registration Statement with respect to such Registrable Securities,
respond as promptly as possible to any comments received from the
Commission, and use its best efforts to cause the Registration
Statement to become and remain effective for the Effectiveness
Period with respect thereto, and promptly provide to the Purchaser
copies of all filings and Commission letters of comment relating
thereto;
prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to
comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by the
Registration Statement and to keep such Registration Statement
effective until the expiration of the Effectiveness
Period;
furnish to the Purchaser such number of copies
of the Registration Statement and the Prospectus included therein
(including each preliminary Prospectus) as the Purchaser reasonably
may request to facilitate the public sale or disposition of the
Registrable Securities covered by the Registration
Statement;
use its commercially reasonable efforts to
register or qualify the Purchaser’s Registrable Securities
covered by the Registration Statement under the securities or
“blue sky” laws of such jurisdictions within the United
States as the Purchaser may reasonably request, provided, however,
that the Company shall not for any such purpose be required to
qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
list the Registrable Securities covered by the
Registration Statement with any securities exchange on which the
Common Stock of the Company is then listed;
immediately notify the Purchaser at any time
when a Prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event of which
the Company has knowledge as a result of which the Prospectus
contained in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances
then existing; and
make available for inspection by the Purchaser
and any attorney, accountant or other agent retained by the
Purchaser, all publicly available, non-confidential financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company’s officers, directors and
employees to supply all publicly
10FF-3
available, non-confidential information
reasonably requested by the attorney, accountant or agent of the
Purchaser.
Registration Expenses. All expenses relating to the
Company’s compliance with Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with
state securities or “blue sky” laws, fees of the NASD,
transfer taxes, fees of transfer agents and registrars, fees of,
and disbursements incurred by, one counsel for the Holders (to the
extent such counsel is required due to Company’s failure to
meet any of its obligations hereunder), are called
“Registration Expenses”. All selling commissions
applicable to the sale of Registrable Securities, including any
fees and disbursements of any special counsel to the Holders beyond
those included in Registration Expenses, are called “Selling
Expenses.” The Company shall only be
responsible for all Registration Expenses.
Indemnification.
In the event of a registration of any
Registrable Securities under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless the
Purchaser, and its officers, directors and each other person, if
any, who controls the Purchaser within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which the Purchaser, or such persons may
become subject under the Securities Act 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 Securities were
registered under the Securities Act pursuant to this Agreement, any
preliminary Prospectus or final Prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the
Purchaser, and each such person for any reasonable legal or other
expenses incurred by them 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 if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by or on behalf of the
Purchaser or any such person in writing specifically for use in any
such document.
In the event of a registration of the
Registrable Securities under the Securities Act pursuant to this
Agreement, the Purchaser will indemnify and hold harmless the
Company, and its officers, directors and each other person, if any,
who controls the Company within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or
several, to which the Company or such persons may become subject
under the Securities Act 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 which was furnished in
writing by the Purchaser to the Company expressly for use in (and
such information is contained in) the Registration Statement under
which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary
Prospectus or final Prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and each
such person for any reasonable legal or other expenses incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that the
Purchaser will be liable in any such case if and only to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document.
Notwithstanding
