Exhibit 10.15
THE
WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN PART, UNLESS ANY
SUCH TRANSACTION IS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER
SAID ACT IS AVAILABLE, AND THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL TO SUCH EFFECT, WHICH OPINION IS REASONABLY SATISFACTORY TO
THE COMPANY.
Warrant
No. W05-01
AMTECH SYSTEMS, INC.
PLACEMENT AGENT WARRANT
TO PURCHASE COMMON STOCK
Securities Subject to Warrant to Purchase Common Stock
. Subject to the terms and conditions hereinafter set forth,
Catalyst Financial LLC (the “Holder”), is entitled to
purchase from Amtech Systems, Inc., an Arizona corporation (the
“Company”), at any time and from time to time during
the period from April 22, 2005 (the “Commencement
Date”) until 5:00 p.m., Danbury, Connecticut Time, on April
21, 2010 (the “Expiration Date”), at which time this
Warrant to Purchase Common Stock (the “Warrant”) shall
expire and become void, an aggregate of 60,000 shares of the
Company’s common stock, par value $.01 per share (the
“Common Stock”), which number of shares of Common Stock
is subject to adjustment from time to time, as described below,
upon payment therefore of the exercise price of $4.67 per share of
Common Stock in lawful funds of the United States of America, such
amounts (the “Basic Exercise Price”) being subject to
adjustment in the circumstances set forth herein below. This
applicable Basic Exercise Price, until such adjustment is made and
thereafter as adjusted from time to time, is called the
“Exercise Price.”
1.
Exercise of Warrant . This Warrant may be exercised in
whole or in part at any time from and after the Commencement Date
and on or before the Expiration Date, provided however, if such
Expiration Date is a day on which Federal or State chartered
banking institutions located in the State of Connecticut are
authorized by law to close, then the Expiration Date shall be
deemed to be the next succeeding day which shall not be such a day,
by presentation and surrender to the Company at its principal
office, or at the office of any transfer agent for the Warrants
(“Transfer Agent”), designated by the Company, of this
Warrant accompanied by the form of election to purchase on the last
page hereof signed by the Holder and upon payment of the Exercise
Price for the Common Stock purchased thereby, by cashier’s
check or by wire transfer of immediately available funds. If
this Warrant is exercised in part only, the Company or Transfer
Agent shall, promptly after presentation of this Warrant upon such
exercise, execute and deliver a new Warrant, dated the date hereof,
evidencing the rights of the Holder to purchase the balance of the
Common Stock purchasable hereunder upon the same terms and
conditions herein set forth.
This
Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the Common Stock
shall be treated for all purposes as the holder of such shares of
record as of the close of business on such date. As promptly
as practicable, the Company shall issue and deliver to the person
or persons entitled to receive the same a certificate or
certificates for the number of shares of Common Stock issuable upon
such exercise, together with cash in lieu of any fraction of a
share as provided below.
2.
Registration Rights . Holder shall have the
registration rights with respect to the Common Stock as set forth
on Exhibit A.
3.
Reservation of Common Stock . The Company covenants
that, during the period this Warrant is exercisable, the Company
will reserve from its authorized and unissued Common Stock a
sufficient number of shares of Common Stock to provide for the
issuance of the shares of Common Stock upon the exercise of this
Warrant. This Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute
and issue the necessary certificates for shares of Common Stock
upon the exercise of this Warrant.
4.
No Shareholder Rights . This Warrant, as such, shall
not entitle the Holder to any rights of a shareholder of the
Company, until the Holder has exercised this Warrant in accordance
with Section 1 hereof.
5.
Adjustment of Exercise Price and Number of Shares
.
5.1 The
number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time, and the
Company agrees to provide notice upon the happening of certain
events, as follows:
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a. If
the Company is recapitalized through the subdivision or combination
of its outstanding shares of Common Stock into a larger or smaller
number of shares of Common Stock, the number of shares of Common
Stock for which this Warrant may be exercised shall be increased or
reduced, as of the record date for such recapitalization, in the
same proportion as the increase or decrease in the outstanding
shares of Common Stock, and the Exercise Price shall be adjusted so
that the aggregate amount payable for the purchase of all of the
shares of Common Stock issuable hereunder immediately after the
record date for such recapitalization shall equal the aggregate
amount so payable immediately before such record date.
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b. If
the Company declares a dividend on its Common Stock payable in
shares of its Common Stock or securities convertible into shares of
its Common Stock, the number of shares of Common Stock for which
this Warrant may be exercised shall be increased as of the record
date for determining which holders of Common Stock shall be
entitled to receive such dividend, in proportion to the increase in
the number of outstanding shares of Common Stock (and shares of
Common Stock issuable upon conversion of all such securities
convertible into shares of Common Stock) as a result of such
dividend, and the Exercise Price shall be adjusted so that the
aggregate amount payable for the purchase of all the shares of
Common Stock issuable hereunder immediately after the record date
for such dividend shall equal the aggregate amount so payable
immediately before such record date.
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c. If
the Company effects a general distribution to holders of its Common
Stock, other than as part of the Company’s dissolution or
liquidation or the winding up of its affairs, of any shares of its
capital stock, any evidence of indebtedness or any of its assets
(other than cash, shares of Common Stock or securities convertible
into shares of Common Stock), the Company shall give written notice
to the Holder of any such general distribution at least fifteen
(15) days prior to the proposed record date in order to permit the
Holder to exercise this Warrant on or before the record date.
There shall be no adjustment in the number of shares of Common
Stock for which this Warrant may be exercised, or in the Exercise
Price, by virtue of any such general distribution, except as
otherwise provided herein.
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d. If
after the date hereof the Company offers rights or warrants (other
than the Warrant) to all holders of its Common Stock which entitle
them to subscribe to or purchase additional shares of Common Stock
or securities convertible into shares of Common Stock, the Company
shall give written notice of any such proposed offering to the
Holder at least fifteen (15) days prior to the proposed record date
in order to permit the Holder to exercise this Warrant on or before
such record date.
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e. In
the event an adjustment in the Exercise Price or the number of
shares of Common Stock issuable hereunder is made under subsection
a. or b. above, and such an event does not occur, then any
adjustments in the Exercise Price or number of shares of Common
Stock issuable upon exercise of this Warrant that were made in
accordance with such subsection a. or b. shall be re-adjusted to
the Exercise Price and number of shares of Common Stock as were in
effect immediately prior to the record date for such an
event.
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f. The
number of shares of Common Stock deemed outstanding at any given
time shall include the number of shares of Common Stock
outstanding, as adjusted as provided herein, but shall not include
shares owned or held by or for the account of the Company, and the
disposition of any shares so owned or held will be considered an
issuance or sale of Common Stock hereunder.
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g. No
adjustment of the Exercise Price shall be made if the amount of
such adjustment would be less than one cent per share of Common
Stock, but in such case any adjustment that otherwise would be
required to be made shall be carried forward and shall be made at
the time and together with the next subsequent adjustment that,
together with any adjustment or adjustments so carried forward,
shall amount to not less than one cent per share of Common
Stock.
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5.2 In
the event of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par
value, or from no par value to par value, or from par value to no
par value, or as a result of a subdivision or combination) or in
the event of any consolidation or merger of the Company with
another entity at any time prior to the expiration of this Warrant,
the Holder shall have the right to exercise this Warrant.
Upon such exercise, the Holder shall have the right to receive the
same kind and number of shares of capital stock and other
securities, cash or other property as would have been distributed
to the Holder upon such reorganization, reclassification,
consolidation or merger. The Holder shall pay upon such
exercise the Exercise Price that otherwise would have been payable
pursuant to the terms of this Warrant. If any such
reorganization, reclassification, consolidation or merger results
in a cash distribution in excess of the then applicable Exercise
Price, the Holder may, at the Holder’s option, exercise this
Warrant without making payment of the Exercise Price, and in such
case the Company shall, upon distribution to the Holder, consider
the Exercise Price to have been paid in full, and in making
settlement to the Holder, shall deduct an amount equal to the
Exercise Price from the amount payable to the Holder. Unless
the Warrant is exercised pursuant to this Section 5.2 or otherwise
and there has been any such reorganization, merger or
consolidation, the corporation formed by such consolidation or
merger or the corporation which shall have acquired the assets of
the Company shall execute and deliver a supplement hereto to the
foregoing effect, which supplement shall also provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided in the Warrant.
5.3 If
the Company shall, at any time before the expiration of this
Warrant, dissolve, liquidate or wind up its affairs, the Holder
shall have the right to exercise this Warrant. Upon such
exercise the Holder shall have the right to receive, in lieu of the
shares of Common Stock of the Company that the Holder otherwise
would have been entitled to receive, the same kind and amount of
assets as would have been issued, distributed or paid to the Holder
upon any such dissolution, liquidation or winding up with respect
to such stock receivable upon exercise of this Warrant on the date
for determining those entitled to receive any such
distribution. If any such dissolution, liquidation or winding
up results in any cash distribution in excess of the Exercise Price
provided by this Warrant, the Holder may, at the Holder’s
option, exercise this Warrant without making payment of the
Exercise Price and, in such case, the Company shall, upon
distribution to the Holder, consider the Exercise Price to have
been paid in full and, in making settlement to the Holder, shall
deduct an amount equal to the Exercise Price from the amount
payable to the Holder.
5.4 Upon
each adjustment of the Exercise Price pursuant to Section 5 hereof,
the Holder shall thereafter (until another such adjustment) be
entitled to purchase, at the adjusted Exercise Price in effect on
the date this Warrant is exercised, the number of shares of Common
Stock, calculated to the nearest whole number of shares, determined
by (a) multiplying the number of shares of Common Stock purchasable
hereunder immediately prior to the adjustment of the Exercise Price
by the Exercise Price in effect immediately prior to such
adjustment, and (b) dividing the product so obtained by the
adjusted Exercise Price in effect on the date of such
exercise. The provisions of Section 8 shall apply, however,
so that no fractional share of Common Stock or fractional Warrant
shall be issued upon exercise of this Warrant.
5.5 The
Company may retain a firm of independent public accountants of
recognized standing (who may be any such firm regularly employed by
the Company) to make any computation required under this Section 5,
and a certificate signed by such firm shall be conclusive evidence
of the correctness of any computation made under this Section
5.
6.
Notice to Holder . So long as this Warrant shall be
outstanding (a) if the Company shall pay any dividends or make any
distribution upon the Common Stock otherwise than in cash or (b) if
the Company shall offer generally to the holders of Common Stock
the right to subscribe to or purchase any shares of any class of
capital stock or securities convertible into capital stock or any
similar rights or (c) if there shall be any capital reorganization
of the Company in which the Company is not the surviving entity,
recapitalization of the capital stock of the Company, consolidation
or merger of the Company with or into another corporation, sale,
lease or other transfer of all or substantially all of the property
and assets of the Company, or voluntary or involuntary dissolution,
liquidation or winding up of the Company, then in such event, the
Company shall cause to be mailed by registered or certified mail to
the Holder, at least thirty (30) days prior to the relevant date
described below (or such shorter period as is reasonably possible
if thirty (30) days is not reasonably possible), a notice
containing a description of the proposed action and stating the
date or expected date on which a record of the Company’s
shareholders is to be taken for the purpose of any such dividend,
distribution of rights, or such reorganization, recapitalization,
consolidation, merger, sale, lease or transfer, dissolution,
liquidation or winding up is to take place and the date or expected
date, if any is to be fixed, as of which the holders of Common
Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
event.
7.
Certificate of Adjustment . Whenever the Exercise
Price or number or type of securities issuable upon exercise of
this Warrant is adjusted, as herein provided, the Company shall
promptly deliver to the Holder of this Warrant a certificate of an
officer of the Company setting forth the nature of such adjustment
and a brief statement of the facts requiring such
adjustment.
8.
No Fractional Shares . No fractional shares of Common
Stock will be issued in connection with any subscription
hereunder. In lieu of any fractional shares which would
otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one
share of Common Stock on the date of exercise, as determined in
good faith by the Company’s Board of Directors.
9.
Transfer or Loss of Warrant .
9.1 Prior
to any proposed transfer of the Securities, unless there is in
effect a registration statement under the Securities Act, covering
the proposed transfer, the Holder thereof shall give written notice
to the Company of such Holder’s intention to effect such
transfer. Each such notice shall describe the
manner and circumstances of the
proposed transfer in sufficient detail, and shall, if the Company
so requests, be accompanied by an unqualified written opinion of
legal counsel who shall be reasonably satisfactory to the Company
addressed to the Company and reasonably satisfactory in form and
substance to the Company’s counsel, to the effect that the
proposed transfer of the Securities may be effected without
registration under the Securities Act, whereupon the Holder of the
Securities shall be entitled to transfer the Securities in
accordance with the terms of the notice delivered by the Holder to
the Company. Each certificate evidencing the Securities
transferred as above provided shall not bear such restrictive
legends if in the opinion of counsel for the Company such legends
are not required in order to establish compliance with any
provisions of the Securities Act.
9.2 Upon
receipt by the Company of evidence satisfactory to it of loss,
theft, destruction or mutilation of this Warrant and, in the case
of loss, theft or destruction, of reasonably satisfactory
indemnification, or, in the case of mutilation, upon surrender of
this Warrant, the Company will execute and deliver, or instruct the
Transfer Agent to execute and deliver, a new Warrant of like tenor
and date and any such lost, stolen or destroyed Warrant thereupon
shall become void.
10.
Notices . Notices and other communications to be given
to the Holder shall be deemed sufficiently given if delivered by
hand, or five (5) days after mailing by registered or certified
mail, postage prepaid, to the Holder at c/o Catalyst Financial LLC,
100 Mill Plain Road, Danbury, Connecticut. Notices or other
communications to the Company shall be deemed to have been
sufficiently given if delivered by hand or five (5) days after
mailing if mailed by registered or certified mail postage prepaid,
to the Company at 131 S. Clark Drive, Tempe, AZ 85281. A
party may change the address to which notice shall be given by
notice pursuant to this Section 10.
11.
Entire Agreement and Modification . The Company and
the Holder of this Warrant hereby represent and warrant that this
Warrant is intended to and does contain and embody all of the
understandings and agreements, both written and oral, of the
parties hereto with respect to the subject matter of this Warrant,
and that there exists no oral agreement or understanding, express
or implied, whereby the absolute, final and unconditional character
and nature of this Warrant shall be in any way invalidated,
impaired or affected. A modification or waiver of any of the
terms, conditions or provisions of this Warrant shall be effective
only if made in writing and executed with the same formality of
this Warrant.
12.
Governing Law . This Warrant shall be governed by and
construed in accordance with the laws of the State of Arizona,
without application of the principles of conflicts of
laws.
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the 22
day of April 2005.
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AMTECH SYSTEMS,
INC.,
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an Arizona corporation
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By:
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/s/ J.S. Whang
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Name:
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J.S. Whang
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Title:
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President and Chief Executive
Officer
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ELECTION TO PURCHASE
TO: AMTECH
SYSTEMS, INC.
The
undersigned hereby irrevocably elects to exercise Warrants
represented by this Placement Agen
