REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
_______, 2003 by and among Tegal Corporation, a Delaware corporation (the
"COMPANY") and (ii) the investors listed on EXHIBIT A hereto (collectively the
"INVESTORS")
WHEREAS, the Company desires to sell to the Investors, and the
Investors desire to purchase up to $7,000,000 in principal amount of 2%
Convertible Secured Debentures (the "DEBENTURES") and up to 3,999,940 eight-year
warrants, each exercisable to purchase one share of Common Stock (the
"WARRANTS"), upon the terms and conditions set forth in that certain Unit
Subscription Agreement, dated of even date herewith, between the Company and the
Investors (the "UNIT SUBSCRIPTION AGREEMENT"); and
WHEREAS, the terms of the Unit Subscription Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder for
the Company and the Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
below:
"ADDITIONAL SHARES" shall mean any additional shares of Common
Stock which may be issued or become issuable from time to time upon the exercise
of a Warrant or the conversion of a Debenture, or a distribution with respect
to, or in exchange for, or in replacement of, a Warrant or Debenture, as a
result of anti-dilution provisions of a Warrant or Debenture, as a result of the
accrual of interest on a Debenture or otherwise.
"BOARD OF DIRECTORS" shall mean the board of directors of the
Company.
"COMMON STOCK" shall mean the common stock, $.01 par value per
share, of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and all of the rules and regulations promulgated thereunder.
"FIRST CLOSING" shall have the meaning ascribed to such term
in the Unit Subscription Agreement.
"MAJORITY HOLDERS" shall mean, at the relevant time of
reference thereto, those Investors holding more than fifty percent (50%) of the
Registrable Shares held by all of the Investors.
"REGISTRABLE SHARES" shall mean any shares of Common Stock
issued or issuable from time to time upon the exercise of a
Warrant or the conversion of a Debenture, or a distribution with respect to, or
in exchange for, or in replacement of, a Warrant or Debenture, including without
limitation Additional Shares and Second Closing Shares.
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act and any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"SECOND CLOSING" shall have the meaning ascribed to such term
in the Unit Subscription Agreement.
"SECOND CLOSING SHARES" shall mean any shares of Common Stock
issued or issuable from time to time upon the exercise of a Warrant or the
conversion of a Debenture, or a distribution with respect to, or in exchange
for, or in replacement of, a Warrant or Debenture, in each case originally
issued on the Second Closing Date.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
"TRIGGER DATE" shall mean the date of an event triggering an
anti-dilution adjustment (such as an adjustment to the Conversion Price pursuant
to the Debentures or the Purchase Price pursuant the Warrants).
2. EFFECTIVENESS. This Agreement shall become effective upon
the First Closing.
3. MANDATORY REGISTRATION. (a) No later than thirty (30) days after
the First Closing (the "FILING DEADLINE"), the Company will prepare and file
with the SEC a registration statement on Form S-3 (or, if Form S-3 is not then
available to the Company, on such form of registration statement that is then
available to effect a registration of all Registrable Shares) for the purpose of
registering under the Securities Act all of the Registrable Shares for resale
by, and for the account of, the Investors as selling stockholders thereunder
(the "REGISTRATION STATEMENT"). The Registration Statement shall permit the
Investors to offer and sell, on a delayed or continuous basis pursuant to Rule
415 under the Securities Act, any or all of the Registrable Shares. Such
Registration Statement also shall cover, to the extent allowable under the
Securities Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Shares.
(b) The Company agrees to use commercially reasonable efforts to cause
the Registration Statement to become effective as soon as practicable after
filing, but in no event later than one hundred twenty (120) days after filing
(the "MANDATORY EFFECTIVE DATE").
(c) No later than ten (10) days after the Second Closing Date and each
Trigger Date (each an "ADDITIONAL FILING DEADLINE"), the Company shall prepare
and file with the SEC one or more Registration Statements on Form S-3 (the "NEW
REGISTRATION STATEMENTS") or amend the Registration Statement filed pursuant to
clause (b) above, if such Registration Statement has not previously been
declared effective (or, if Form S-3 is not then available to the Company,
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on such form of registration statement as is then available to effect a
registration for resale of such Second Closing Shares or Additional Shares,
subject to the Investors' consent) covering the resale of the Second Closing
Shares or Additional Shares, as applicable, but only to the extent such Second
Closing Shares or Additional Shares are not at the time covered by an effective
Registration Statement. Unless otherwise specifically provided herein, the term
Registration Statement shall include without limitation any New Registration
Statement, as amended from time to time. Such Registration Statement also shall
cover, to the extent allowable under the Securities Act and the rules
promulgated thereunder (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Second Closing Shares and Additional
Shares. The Company agrees to use commercially reasonable efforts to cause the
Registration Statement, as amended from time to time, and each New Registration
Statement, as amended from time to time, to become effective as soon as
practicable after filing of each amendment and each New Registration Statement,
but in no event later than thirty (30) days after filing of each such amendment
and each New Registration Statement (each such date, an "ADDITIONAL MANDATORY
EFFECTIVE DATE").
(d) The Company shall be required to keep the Registration Statement,
as amended, effective until such date that is the earlier of (i) two years after
the Second Closing, (ii) the date when all of the Registrable Shares registered
thereunder shall have been sold, or (iii) such time as all the Registrable
Shares held by the Investors can be sold pursuant to Rule 144(k) and without
compliance with the registration requirements of the Securities Act (such date
is referred to herein as the "MANDATORY REGISTRATION TERMINATION DATE").
Thereafter, the Company shall be entitled to withdraw the Registration Statement
and the Investors shall have no further right to offer or sell any of the
Registrable Shares pursuant to the Registration Statement (or any prospectus
relating thereto).
(e) The Company shall not grant any registration rights that are pari
passu with or senior to the registration rights of the Investors under this
Agreement.
(f) If a Registration Statement covering the Registrable Securities is
not filed with the SEC on or prior to the Filing Deadline or any Additional
Filing Deadline, the Company will make pro rata payments to each Investor, as
liquidated damages and not as a penalty, in an amount equal to 1.5% of the
aggregate amount invested by such Investor for each 30-day period or pro rata
for any portion thereof following the date by which such Registration Statement
should have been filed for which no Registration Statement is filed with respect
to Registrable Securities.
(g) If (A) a Registration Statement covering the Registrable Securities
is not declared effective by the SEC before the Mandatory Effective Date, or (B)
a Registration Statement, as amended, or New Registration Statement, as amended,
covering Additional Shares or Second Closing Shares is not declared effective by
the SEC within thirty (30) days following a Additional Mandatory Effective Date,
then the Company will make pro rata payments to each Investor, as liquidated
damages and not as a penalty, in an amount equal to 1.5% of the aggregate amount
invested by such Investor for each 30-day period or pro rata for any portion
thereof following the date by which such Registration Statement should have been
effective.
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(h) If the Investor shall be prohibited from selling Registrable Shares
under the Registration Statement as a result of a Suspension of more than
forty-five (45) days or Suspensions on more than two (2) occasions of not more
than an aggregate of ninety (90) days in any 12-month period, then for each day
on which a Suspension is in effect that exceeds the maximum allowed period for a
Suspension or Suspensions, but not including any day on which a Suspension is
lifted, the Company shall pay the Purchaser, as liquidated damages and not as a
penalty, an amount equal to 0.05% of the aggregate amount invested by such
Investor for each such day, and such payment shall be made no later than the
first business day of the calendar month next succeeding the month in which such
day occurs. For purposes of this Section 3(h), a Suspension shall be deemed
lifted on the day after notice that the Suspension has been lifted is delivered
to the Purchaser pursuant to this Agreement.
(i) Any payments made pursuant to Sections 3(f), (g) or (h) shall be in
partial compensation to the Investors, and shall not constitute the Investors'
exclusive remedy for such events. Such payments shall be made to each Investor
in cash monthly no later than the second business day of the calendar month next
succeeding each calendar month in which such obligation to make payments
accrues. Any such payments shall not constitute the Investor's exclusive remedy
for such events.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 hereof to file a Registration Statement with the SEC
and to use its reasonable efforts to cause the Registration Statement to become
effective as soon as practicable after filing, the Company shall, as
expeditiously as reasonably possible, subject to Section 9 hereof:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the Mandatory Registration Termination Date;
(b) Furnish to the selling Investors such reasonable number of
copies of the Registration Statement, prospectus and preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
(including, without limitation, prospectus amendments and supplements as are
prepared by the Company in accordance with Section 4(a) above) as the selling
Investors may reasonably request, in order to facilitate the public or other
disposition of such selling Investors' Registrable Shares;
(c) Use reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under such other
securities or Blue Sky laws of all states requiring such securities or Blue Sky
registration or qualification, 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; and
(d) Use reasonable efforts to cause all such Registrable Shares
registered hereunder to be listed on each securities exchange (including without
limitation any Nasdaq market) on which securities of the same class issued by
the Company are then listed.
5. FURNISH INFORMATION. (a) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall
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furnish to the Company such information regarding them and the securities held
by them as the Company shall reasonably request and as shall be required in
order to effect any registration by the Company pursuant to this Agreement.
(b) The Registration Statement will provide for a plan of
distribution with respect to the Registrable Shares substantially as follows:
The Registrable Shares may be sold from time to time by the Investors, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on one or more exchanges or in the over-the-counter market, or otherwise at
prices and at terms then prevailing or at prices related to the then-current
market price, or in negotiated transactions. The Registrable Shares may be sold
by one or more of the following: (a) a block trade in which the broker or dealer
so engaged will attempt to sell the shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to the resale registration statement; (c) an exchange
distribution in accordance with the rules of such exchange; (d) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
and (e) transactions between sellers and purchasers without a broker/dealer. In
addition, any securities covered by the Registration Statement which qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to the
Registration Statement. From time to time the selling Investors may engage in
short sales, short sales versus the box, puts and calls and other transactions
in securities of the issuer or derivatives thereof, and may sell and deliver the
shares in connection therewith. In effecting sales, brokers or dealers engaged
by the selling Investors may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from
selling Investors in amounts to be negotiated immediately prior to the sale.
6. EXPENSES OF REGISTRATION. All expenses incurred in connection with
the registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, and the reasonable
fees and disbursements of one counsel for the selling Investors selected by the
selling Investors, shall be borne by the Company.
7. INDEMNIFICATION. (a) To the extent permitted by law, the Company
will indemnify and hold harmless each selling Investor (including the partners
or officers, directors and stockholders of such Investor), and each person, if
any, who controls such selling Investor within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Securities Act, the Exchange Act, and
other federal or state securities laws, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, in any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
(ii) 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 or (iii) arise out of any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other
federal or
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state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any other federal or state securities law; and will
reimburse such selling Investor, or such officer, director or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 7(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 or delayed), nor shall
the Company be liable in any such case for any such loss, damage, liability or
action to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission made in connection with the Registration
Statement, any preliminary prospectus or final prospectus relating thereto or
any amendments or supplements to the Registration Statement or any such
preliminary prospectus or final prospectus, in reliance upon and in conformity
with written information furnished expressly for use in connection with the
Registration Statement or any such preliminary prospectus or final prospectus by
the selling Investors, any broker/dealer acting on their behalf or controlling
person with respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly 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, or any selling Investors, and all other selling Investors against any
losses, claims, damages or liabilities to which the Company or any such
director, officer, controlling person or such other selling Investor may become
subject to, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
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, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Investor expressly for use in connection with the
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person, or
other selling Investor in connection with investigating or defending any such
loss, claim, damage, liability or action, PROVIDED, HOWEVER, that the liability
of each selling Investor hereunder (when aggregated with amounts contributed, if
any, pursuant to Section 7(d)) shall be limited to the difference (the
"Difference") between the amount received by such Investor from the sale of the
Registrable Securities pursuant to the Registration Statement and the amount
paid by such Investor to the Company for such Registrable Securities pursuant to
the Unit Subscription Agreement, and PROVIDED FURTHER, HOWEVER, that the
indemnity agreement contained in this Section 7(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 those selling Investor(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld or delayed).
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(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the indemnifying parties
with the consent of the indemnified party which consent will not be unreasonably
withheld, conditioned or delayed. In the event that the indemnifying party
assumes any such defense, the indemnified party may participate in such defense
with its own counsel and at its own expense, PROVIDED, HOWEVER, that the counsel
for the indemnifying party shall act as lead counsel in all matters pertaining
to such defense or settlement of such claim and the indemnifying party shall
only pay for such indemnified party's reasonable legal fees and expenses for the
period prior to the date of its participation in such defense, and PROVIDED
FURTHER, HOWEVER, that the indemnified party (together with all indemnified
parties which may be represented without conflict by one counsel) shall have the
right to retain one separate counsel, with the fees and expenses to be paid by
the indemnifying party, if the representation of the indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between the indemnified party and any other
party represented by such counsel in such proceeding. Notwithstanding the
foregoing, the indemnifying party shall not be obligated to pay the fees of more
than one separate counsel. The failure to notify an indemnifying party of the
commencement of any such action will not relieve such indemnifying party of any
liability to the indemnified party under this Section 7 (except to the extent
that such failure materially and adversely affects the indemnifying party's
ability to defend such action), nor shall the omission so to notify an
indemnifying party relieve such indemnifying party of any liability which it may
have to any indemnified party otherwise other than under this Section 7. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation and otherwise in form and substance reasonably satisfactory to the
indemnified party.
(d) If the indemnification provided in this Section 7 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 herein,
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 shall have resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations; provided that in no event shall any contribution by an Investor
under this Section 7(d), when aggregated with amounts paid, if any, pursuant to
Section 7(b), exceed the Difference. 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
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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.
(e) The obligations of the Company and Investors under this Section 7
shall survive the completion of any offering of Registrable Shares in a
Registration Statement under Section 3, and otherwise.
(f) Notwithstanding anything to the contrary herein, the indemnifying
party shall not be entitled to settle any claim, suit or proceeding without the
written consent of the indemnified party unless in connection with such
settlement the indemnified party receives an unconditional release with respect
to the subject matter of such claim, suit or proceeding.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit the Investors to sell the Registrable Shares to
the public without registration, the Company agrees to use reasonable efforts:
(i) to make and keep public information available, as those terms are understood
and defined in the General Instructions to Form S-3, or any successor or
substitute form, and in Rule 144, (ii) to file with the SEC in a timely manner
all reports and other documents required to be filed by an issuer of securities
registered under the Securities Act or the Exchange Act and (iii) undertake any
additional actions reasonably necessary to maintain the availability of the
Registration Statement or the use of Rule 144.
9. SELLING PROCEDURES. Any sale of Registrable Shares pursuant to the
registration statement filed in accordance with Section 3 hereof shall be
subject to the following conditions and procedures:
(a) Updating the Prospectus.
(i) If the Company informs the selling Investor
that the Registration Statement or final prospectus then on file with the SEC is
not current or otherwise does not comply with the Securities Act, the Company
shall use its best efforts to provide to the selling Investor a current
prospectus that complies with the Securities Act as soon as practicable, but in
no event later than three (3) business days after delivery of such notice. The
Company's obligation to update the Registration Statement or final prospectus
under this Section 9(a)(i) shall not be subject to the limitations of Section
9(a)(ii) or (c) below.
(ii) If the Company requires more than three (3)
business days to update the prospectus under Section 9(a)(i) above, the Company
shall have the right to delay the preparation of a current prospectus that
complies with the Securities Act without explanation to such Investor, subject
to the limitations set forth in Section 9(c) below, for a period of not more
than forty-five (45) days (or two periods which total not more than ninety (90)
days in the aggregate) during any twelve-month period.
(b) GENERAL. Notwithstanding the foregoing, upon receipt of
any notice from the Company of (i) any request by the SEC or any other federal
or state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to the Registration
Statement or related prospectus or for additional information relating to the
Registration Statement, (ii) the issuance by the SEC or any other federal or
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state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose, (iii) the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (iv) the happening of any event
which makes any statement made in the Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in the Registration Statement or prospectus so that, in the case of the
Registration Statement, it will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
prospectus, it will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (v)
that, in the judgment of the Company's Board of Directors, it is advisable to
suspend use of the prospectus for a discrete period of time due to pending
corporate developments, public filings with the Commission or that there exists
material nonpublic information about the Company that the Board of Directors,
acting in good faith, determines not to disclose in a registration statement,
then the Company may suspend use of the prospectus, in which case the Company
shall promptly so notify each Investor and each Investor shall not dispose of
Registrable Shares covered by the Registration Statement or prospectus until
copies of a supplemented or amended prospectus are distributed to the Investors
or until the Investors are advised in writing by the Company that the use of the
applicable prospectus may be resumed; PROVIDED, however, that, notwithstanding
the foregoing, the Company may suspend use of the prospectus pursuant to
Sections 9(a)(ii), 9(b)(iv) and 9(b)(v), and an Investor may be prohibited from
selling or otherwise disposing of the Registrable Shares covered by the
Registration Statement or prospectus, on NOT MORE than two occasions (each a
"SUSPENSION") in total during any twelve-month period and for NO MORE than
ninety (90) days in the aggregate during any such twelve-month period. The
Company shall use its best efforts to ensure the use of the prospectus may be
resumed as soon as practicable. The Company shall use its best efforts to obtain
the withdrawal of any order suspending the effectiveness of the Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the securities for sale in any jurisdiction, at
the earliest practicable moment. The Company shall, upon the occurrence of any
event contemplated by clause (iv), prepare a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Shares being sold thereunder, such prospectus will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the Investors shall also be for the benefit of and enforceable by any
subsequent holder of any Registrable Securities who has executed a copy of this
Agreement or otherwise indicated its agreement to be bound hereby. Without
limitation on
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the Investors' rights to transfer Registrable Securities, the Company
acknowledges that any Investor may, at any time, transfer any of the Registrable
Securities which they may own, beneficially or of record, to (a) their
affiliates, or (b) their partner(s), investor(s), security holder(s) or
beneficial holder(s) pursuant to their organization documents or other
agreements, and that, upon the consummation of any such transfer, the provisions
of this Agreement shall be binding upon and inure to the benefit of each
transferee of such Registrable Securities.
11. ENTIRE AGREEMENT. This Agreement (including the exhibits hereto)
constitutes and contains the entire agreement and understanding of the parties
with respect to the subject matter hereof, and it also supersedes any and all
prior negotiations, correspondence, agreements or understandings with respect to
the subject matter hereof.
12. MISCELLANEOUS.
(a) AMENDMENTS. This Agreement may not be amended, modified or
terminated, and no rights or provisions may be waived, except with the written
consent of the Majority Holders and the Company.
(b) GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
Each party hereby irrevocably consents and submits to the jurisdiction of any
New York State or United States Federal Court sitting in the State of New York,
County of New York, over any action or proceeding arising out of or relating to
this Agreement and irrevocably consents to the service of any and all process in
any such action or proceeding by registered mail addressed to such party at its
address specified herein (or as otherwise noticed to the other party). Each
party further waives any objection to venue in New York and any objection to an
action or proceeding in such state and county on the basis of FORUM NON
CONVENIENS. Each party also waives any right to trial by jury.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors or assigns. This Agreement shall also be
binding upon and inure to the benefit of any transferee of any of the
Registrable Shares. Notwithstanding anything in this Agreement to the contrary,
if at any time any Investor shall cease to own any Registrable Shares, all of
such Investor's rights under this Agreement shall immediately terminate.
(d) NOTICES
(i) Any notices, reports or other correspondence
(hereinafter collectively referred to as "CORRESPONDENCE") required or permitted
to be given hereunder shall be sent by mail, courier (overnight or same day) or
fax or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder (except that notices of Suspensions or stop
orders must be made by fax). The date of giving any notice shall be the date of
its actual receipt.
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(ii) All correspondence to the Company shall be addressed
as follows:
Tegal Corporation
0000 Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Fax number: (000) 000-0000
E-mail: xxxxxxx@xxxxx.xxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Taitt Sato, Esq.
Fax number: (000) 000-0000
Email: xxxxx.xxxx@xx.xxx
(iii) All correspondence to any Investor shall be sent to the
most recent address furnished by the Investor to the Company.
(iv) Any Investor may change the address to which
correspondence to it is to be addressed by notification as provided for herein.
(e) INJUNCTIVE RELIEF. The parties acknowledge and agree that
in the event of any breach of this Agreement, remedies at law may be inadequate,
and each of the parties hereto shall be entitled to seek specific performance of
the obligations of the other parties hereto and such appropriate injunctive
relief as may be granted by a court of competent jurisdiction.
(f) ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce or interpret any of the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(g) SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable under applicable law,
such provision shall be replaced with a provision that accomplishes, to the
extent possible, the original business purpose of such provision in a valid and
enforceable manner, and the balance of the Agreement shall be interpreted as if
such provision were so modified and shall be enforceable in accordance with its
terms.
(h) AGGREGATION OF SHARES. Registrable Shares held or acquired
by affiliated entities or persons shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in a number
of counterparts, any of which together shall for all purposes constitute one
Agreement, binding on all the parties hereto notwithstanding that all such
parties have not signed the same counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
TEGAL CORPORATION
By:
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Name:
Title:
INVESTOR
[ ]
By:
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Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
EXHIBIT A
SCHEDULE OF INVESTORS
Xxxx Xxxxxxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
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[Address]
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[Address]
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[Address]
