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.
AMTECH SYSTEMS, INC.
W________
WARRANT TO PURCHASE COMMON STOCK
SECURITIES SUBJECT TO WARRANT TO PURCHASE COMMON STOCK. Subject to the
terms and conditions hereinafter set forth, ________ (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 July 1, 1997 (the
"Commencement Date") until 5:00 p.m., Miami, Florida Time, on July 1, 2002 (the
"Expiration Date"), at which time this Warrant to Purchase Common Stock (the
"Warrant") shall expire and become void, an aggregate of ______ 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 $3.00 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 Florida 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.
2.1 If, at any time after March 15, 1998 and prior to the Expiration
Date, other than a time when the Securities (as hereinafter defined) are covered
for sale or resale by an effective and current registration statement, the
Holders of a majority of the Warrants and the shares of Common Stock issued upon
exercise of the Warrants (collectively, the "Securities") shall give notice to
the Company requesting that the Company file with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Registration
Statement") relating to the shares of Common Stock issuable upon the exercise of
the Warrants, the Company shall promptly give written notice of such proposed
Registration Statement to the Holders of such Securities, and to any subsequent
permissible transferee of any of the Securities (at the address of such persons
appearing on the books of the Company or its transfer agent) which notice shall
offer to include the shares of Common Stock in the requested Registration
<PAGE>
Statement. The Company shall, within six months from receipt of the acceptance
of such offer, file and use its best efforts to cause to become effective under
the Securities Act of 1933, as amended (the "Securities Act"), the Registration
Statement covering such of the shares of Common Stock as the Company has been
requested to register for disposition by the Holders thereof, to the extent
required to permit the public sale or other public disposition thereof by the
Holders. The Company shall use its best efforts to cause the Registration
Statement to remain effective until the earlier of (i) such date as all of the
shares of Common Stock have been sold or (ii) until in the opinion of counsel
for the Company, such shares may be sold without registration under the
Securities Act, or (iii) until the Warrants expire.
2.2 In addition, if at any time during the five (5) years after the
Commencement Date, the Company shall prepare and file one or more registration
statements under the Securities Act, with respect to a public offering of equity
securities of the Company, or of any such securities of the Company held by its
security holders, the Company will include in any such registration statement
such information as is required, and such number of shares of Common Stock held
by the Holders thereof or their respective designees or transferees as may be
requested by them, to permit a public offering of the shares of Common Stock so
requested; provided, however, that if, in the written opinion of the Company's
managing underwriter, if any, for such offering, the inclusion of the shares of
Common Stock requested to be registered, when added to the securities being
registered by the Company or the selling security holder(s), would exceed the
maximum amount of the Company's securities that can be marketed without
otherwise materially and adversely affecting the entire offering, then the
Company may exclude from such offering that portion of the shares of Common
Stock requested to be so registered, so that the total number of securities to
be registered is within the maximum number of shares that, in the opinion of the
managing underwriter, may be marketed without otherwise materially and adversely
affecting the entire offering. The Company shall bear all fees and expenses
incurred by it in connection with the preparation and filing of such
registration statement. In the event of such a proposed registration, the
Company shall furnish the then Holders with not less than thirty (30) days'
written notice prior to the proposed date of filing of such registration
statement. The holders of shares of Common Stock shall exercise the rights
provided for in this Subsection 2.2 by giving written notice to the Company,
within twenty (20) days of receipt of the Company's notice of its intention to
file a registration statement.
2.3 The Company shall bear all expenses incurred in the preparation
and filing of such registration statements or post-effective amendment (and
related state registrations, to the extent permitted by applicable law) and the
furnishing of copies of the preliminary and final prospectus thereof to the
Holder, other than expenses of the Holder's counsel, and other than underwriting
discounts and sales commissions incurred by the then holders with respect to the
sale of such securities.
2.4 Notwithstanding anything contained herein to the contrary, if on
the Expiration Date a registration statement requested under Section 2.1 hereof
covering any portion of shares issuable upon the exercise of the Warrants has
not been declared effective by the Commission, the Expiration Date shall be
extended to the date that is 90 days following the date of effectiveness of such
registration statement.
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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<PAGE>
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.
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.
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.
d. If 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.
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.
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.
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.
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
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<PAGE>
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. In the event of 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
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<PAGE>
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
BC Capital Corp., 201 South Biscayne Boulevard, Suite 2950, Miami, Florida
33131. 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.
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<PAGE>
IN WITNESS WHEREOF, the Company has executed this Warrant as of the ____
day of __________.
AMTECH SYSTEMS, INC.,
an Arizona corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ELECTION TO PURCHASE
TO: AMTECH SYSTEMS, INC.
The undersigned hereby irrevocably elects to exercise Warrants represented
by this Purchase Warrant to Purchase Common Stock to purchase _______________
shares of Common Stock issuable upon the exercise of such Warrants and requests
that certificates for such shares and Warrants be issued in the name of:
-----------------------------------------------------------
(Please insert social security or other identifying number)
-----------------------------------------------------------
(Please print name and address)
Dated: ,
---------------- ------- ----------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
6
