EXHIBIT 10.22
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered into as
of November 15, 1996 by and between Plasma & Materials Technologies, Inc., a
California corporation (the "Company"), and Xxxxxxxxxxx X. Xxxxxx, an
individual (the "Investor"). This Agreement is entered into pursuant to that
certain Share Purchase Agreement dated as of July 17, 1996 (the "Share
Purchase Agreement") by and among the Company, Electrotech Limited,
Electrotech Equipments Limited, the Investor and certain other parties.
1. Definitions. For purposes of this Agreement:
(a) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing with the Securities and
Exchange Commission (the "SEC") a registration statement or similar
document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document; and
(b) The term "Registrable Securities" means the 4,853,334 shares of the
Company's Common Stock issued to the Investor pursuant to the Share
Purchase Agreement, and any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such Common Stock.
2. Request for Registration.
(a) If the Company shall receive at any time after the first anniversary
of this Agreement, a written request from the Investor that the Company
file a registration statement under the Securities Act covering the
registration of any Registrable Securities (provided that the aggregate
amount of such Registrable Securities would exceed the amount specified in
paragraph (e) of Rule 144 under the Securities Act), then the Company shall
file as soon as practicable, and in any event within 90 days of the receipt
of such request, a registration statement under the Securities Act covering
all Registrable Securities which the Investor so requests to be registered.
(b) The Company is obligated to effect only three such registrations
pursuant to this Section 2; provided, however, that the Company shall not
be obligated to effect any such registration if the Company has, within the
six months preceding the date of receipt of the request for such
registration, already effected one such registration.
(c) Notwithstanding the foregoing, if the Company shall furnish to the
Investor a certificate signed by the President or Chief Executive Officer
of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for such registration statement to be filed and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of not more
than an additional 120 days after receipt of the request of the Investor
referred to in Section 2(a) above; provided, however, that the Company may
not utilize this right more than once in any 12-month period.
3. Company Registration. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Investor) any of its
stock or other securities under the Securities Act in connection with the
public offering, on or after the first anniversary of this Agreement, of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock option, purchase or
similar benefit plan or an SEC Rule 145 transaction), the Company shall, at
such time, promptly give the Investor written notice of such registration.
Upon the written request of the Investor given within 30 days after the
effectiveness of such notice by the Company, the Company shall, subject to the
provisions of Section 8, cause to be registered under the Securities Act all
of the Registrable Securities that the Investor has requested to be
registered. In the event the Investor determines not to include any or all of
the Registrable Securities held by the Investor in any such registration, the
Investor shall continue to have the right to include such Registrable
Securities in any subsequent registration, pursuant to the terms of this
Section 3.
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4. Obligations of the Company. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Investor, keep such registration statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Investor such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as he may reasonably request
in order to facilitate the disposition of his Registrable Securities.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws
of such jurisdictions as shall be reasonably requested by the Investor,
provided that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. The
Investor shall also enter into and perform its obligations under such an
agreement.
(f) Notify the Investor at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included 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 the light of the
circumstances then existing.
(g) Furnish, at the request of the Investor, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Investor, and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Investor.
5. Furnish Information. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Agreement that the Investor
shall furnish to the Company such information regarding himself, the
Registrable Securities held by him, and the intended method of disposition of
such securities as shall be required to effect the registration of the
Registrable Securities.
6. Expenses of Demand Registrations. All expenses other than underwriting
discounts and commissions incurred by the Company in connection with
registrations, filings or qualifications pursuant to Section 2, including
(without limitation) all registration, filing and qualification fees,
printers' and accounting fees, and fees and disbursements of counsel for the
Company, shall be borne by the Company.
7. Expenses of Company Registration. The Company shall bear and pay all
expenses incurred by the Company in connection with any registration, filing
or qualification of Registrable Securities with respect to the registrations
pursuant to Section 3, including (without limitation) all registration, filing
and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for the Company, but excluding underwriting discounts
and commissions relating to Registrable Securities.
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8. Underwriting Requirements. In connection with any offering involving an
underwriting of shares being issued by the Company, the Company shall not be
required under Section 3 to include any of the Investor's securities in such
underwriting unless the Investor accepts the terms of the underwriting as
agreed upon between the Company and the underwriters selected by the Company,
and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters reasonably believe
compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters believe will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling shareholders according to the total
amount of securities entitled to be included therein owned by each selling
shareholder or in such other proportions as shall mutually be agreed to by
such selling shareholders), provided that any shares being sold by the
Investor in exercising a demand registration right granted in Section 2, or by
any other shareholder exercising a demand registration right similar to that
granted in Section 2, shall not be excluded from such offering.
9. Delay of Registration. The Investor shall not have any right to obtain or
seek an injunction restraining or otherwise delaying any registration as the
result of any controversy that might arise with respect to the interpretation
or implementation of this Agreement.
10. Indemnification. In the event any Registrable Securities are included in
a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless the Investor, any underwriter (as defined in the Securities Act)
for the Investor and each person, if any, who controls such Investor or
underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act") against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "violation"):
(i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any Rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and, within 30 days
after the Company receives a written request containing a description in
reasonable detail of the expenses incurred, the Company will advance to the
Investor and each underwriter or controlling person any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, whether prior
to or after final disposition of any claim or action (unless there has been
a final determination that such Investor, underwriter or controlling person
is not entitled to be indemnified for such expenses); provided, that at the
time of such advance, such Investor, underwriter or controlling person
shall agree to repay the amounts advanced if it is ultimately determined
that he or she is not entitled to be indemnified pursuant to the terms of
this Agreement; provided, however, that the indemnity agreement contained
in this Section 10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a violation which occurs in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by any such Investor, underwriter or
controlling person.
(b) To the extent permitted by law, the Investor will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, and any underwriter,
against any losses,
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claims, damages or liabilities (joint or several) to which the Company or
any such director, officer, controlling person, or underwriter may become
subject, under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any violation,
in each case to the extent (and only to the extent) that such violation
occurs in reliance upon and in conformity with written information
furnished by the Investor expressly for use in connection with such
registration; and the Investor will reimburse as incurred any legal or
other expenses reasonably incurred by the Company or any such director,
officer, controlling person or underwriter in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 10(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the Investor, which consent shall not be unreasonably withheld; provided,
that, in no event shall any indemnity under this Section 10(b) exceed the
net proceeds from the offering received by the Investor.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under
this Section 10.
(d) The obligations of the Company and the Investor under this Section 10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
(e) If the indemnification provided for in this Section 10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim,
damage or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
11. Termination of Registration Rights. The Company's obligations pursuant
to this Agreement shall terminate when the Investor can sell all of the
Registrable Securities pursuant to Rule 144 under the Securities Act during
any 90-day period.
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13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
14. Entire Agreement. This Agreement is intended by the parties hereto as a
final expression of their agreement and intended to be a complete and
exclusive statement of the parties hereto in respect of the subject matter
contained herein.
15. Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effective
when given upon personal delivery to the party to be notified or, if sent by
telex or telecopier, upon receipt of the correct answer back, or three
business days after deposit with the United States Post Office, by registered
or certified mail, or upon delivery by Federal Express, DHL or similar
courier, in each case postage and delivery charges prepaid and addressed to
the party to be notified at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate by
ten days' advance written notice to the other parties.
IN WITNESS WHEREOF, the Company, each of the Investors and the Founder have
caused this Agreement to be signed by an officer or partner thereunto duly
authorized, all as of the date first written above.
PLASMA & MATERIALS TECHNOLOGIES,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xx. Xxxxxx X. Xxxxxxxx
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Title: President and Chief
Executive Officer
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Address: 0000 Xxxxxxx Xxxxxx
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Xxxxxxxxxx, XX 00000
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/s/ Xxxxxxxxxxx X. Xxxxxx
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XXXXXXXXXXX X. XXXXXX
Address: Elberton Manov
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Elberton, Bristol UK
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