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WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this "Agreement"), dated as of October 4,
1996, is entered into by and between INTEGRATED PROCESS EQUIPMENT CORP., a
Delaware corporation (the "Company") and INTEL CORPORATION, a Delaware
corporation (together with its successors and assigns, the "Purchaser").
RECITALS
A. The Company has agreed to sell to the Purchaser, and the Purchaser has
agreed to purchase warrants to purchase shares of capital stock of the Company,
subject to the terms and conditions of this Agreement.
B. The Purchaser and the Company previously have entered into that certain
Intel Corporation Equipment and Services Purchase Agreement No. C-04536,
effective as of April 1, 1996, as amended by that certain Amendment No. 1
thereto, dated as of September 26, 1996 (as so amended, the "Equipment
Agreement").
AGREEMENT
In consideration of the mutual covenants contained in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; CONSIDERATION; CLOSING.
1.1. Issuance of Warrants. Subject to the terms and conditions
hereof, on the date of each Closing (as defined in Section 1.3 below) the
Company shall issue to the Purchaser, and the Purchaser shall accept from the
Company, a Warrant in the form attached hereto as Exhibit A ("Warrant"), which
shall entitled the Purchaser to acquire, at an exercise price of $14.6625 per
share, a number of shares of the Common Stock, $0.01 par value, of the Company
as determined in accordance with the provisions of Section 1.4. The shares of
capital stock issued or issuable upon exercise of the Warrants, as well as any
shares of capital stock issued or issuable upon conversion of such capital
stock, shall be referred to collectively herein as the "Warrant Stock", and the
Warrants and the Warrant Stock shall be referred to collectively herein as the
"Securities."
1.2. Warrant Consideration. As consideration for the issuance of the
Warrants (the "Warrant Consideration"), the Purchaser has agreed to pull in its
total forecast equipment requirements from the Company, as set forth in that
certain Amendment No. 1 to the Equipment Agreement (the "Amendment") between the
Company and the Purchaser, dated as of September 26, 1996, and the Purchaser
shall issue Releases (as defined in the Equipment Agreement) with respect to the
equipment pursuant to the Amendment.
1.3. Closings. The first closing under this Agreement (the "First
Closing") shall take place on October 4, 1996, the second closing under this
Agreement (the "Second Closing") shall take place on December 31, 1996, and the
third closing under this Agreement (the
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"Third Closing") shall take place on March 31, 1997. The First Closing, Second
Closing and Third Closing shall be referred to herein, individually, as a
"Closing" and, collectively, as the "Closings." Each of the Closings shall be
held at the offices of Intel Corporation at 10:00 a.m., Pacific Time, or at such
other place, date and time as may be agreed upon by the parties. At each
Closing, the Company shall deliver to the Purchaser a Warrant and the parties
shall deliver to each other such other agreements, instruments and documents as
are required to be delivered pursuant hereto.
1.4. Number of Shares Covered by Warrants; Etc.
(a) Intel intends to issue Releases for the Company's equipment in
accordance with the pulled-in forecast equipment requirements from the Company
as set forth in the Equipment Agreement (the "Pulled-In Forecast"). As set forth
in the Equipment Agreement, the Company shall provide Intel with written
acknowledgment of and acceptance or rejection of any Release (as defined in the
Equipment Agreement) issued by Intel no later than five (5) business days
following the receipt thereof by the Company. For purposes of this Section 1.4,
"Value of Equipment Accepted" shall mean the purchase price of the Company's
equipment with respect to which Releases have been issued by Intel and accepted
by the Company, and "Value of Equipment Forecasted" shall mean the purchase
price of the Company's equipment set forth in the Pulled-In Forecast.
(b) At the First Closing, the Company shall issue to the Purchaser
an immediately exercisable Warrant to purchase 60,000 shares of Common Stock of
the Company, in consideration of the issuance of Releases for the equipment of
the Company for the period of September 1996 as set forth in the Equipment
Agreement, all of which Releases have been accepted by the Company.
(c) At the Second Closing, the Company shall issue to the Purchaser
an immediately exercisable Warrant to purchase a number of shares of Common
Stock of the Company equal to the number derived by the following formula:
90,000 multiplied by a fraction, the numerator of which is equal to the Value of
Equipment Accepted during the quarter ended December 31, 1996 and the
denominator of which is the Value of Equipment Forecasted for the quarter ended
December 31, 1996. Notwithstanding the foregoing, the fraction calculated in the
previous sentence in no event shall be less than one-half (1/2) or greater than
one (1).
(d) At the Third Closing, the Company shall issue to the Purchaser
an immediately exercisable Warrant to purchase a number of shares of Common
Stock of the Company equal to the number derived by the following formula:
100,000 multiplied by a fraction, the numerator of which is equal to the Value
of Equipment Accepted during the quarter ended March 31, 1997 and the
denominator of which is the Value of Equipment Forecasted for the quarter ended
March 31, 1997. Notwithstanding the foregoing, the fraction calculated in the
previous sentence in no event shall be less than one-half (1/2) or greater than
one (1).
(e) Each of the Warrants shall expire three (3) years from its
respective date of issuance.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchaser, as of the date hereof, as of the date
of each Closing and as of the date of exercise of each of the Warrants, except
as set forth in the Schedule of Exceptions ("Schedule of Exceptions") attached
to this Agreement as Exhibit B (which Schedule of Exceptions shall be deemed to
be representations and warranties to the Purchaser, and may be updated by the
Company to the extent reasonably necessary to make the representations and
warranties set forth herein true and complete as of each Closing and as of the
exercise of each of the Warrants), as follows:
2.1. Organization, Good Standing and Qualification; Subsidiaries.
The Company is a corporation duly organized, validly existing and in good
standing under, and by virtue of, the laws of the State of Delaware and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as now conducted. The Company is qualified to do business
as a foreign corporation in each jurisdiction where failure to be so qualified
would have a material adverse effect on its financial condition, business,
prospects or operations. The Company does not presently own or control, directly
or indirectly, any interest in any other corporation, partnership, trust, joint
venture, association, or other entity.
2.2. Due Authorization; Consents. All corporate action on the part
of the Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of, and the performance of all obligations
of the Company under, this Agreement, the authorization, issuance and delivery
of the Warrant, and the authorization, issuance, reservation for issuance and
delivery of all of the Warrant Stock, has been taken or will be taken prior to
each Closing. This Agreement is a valid and binding obligation of the Company
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and
similar laws affecting creditors' rights generally and to general equitable
principles and as to the enforceability of the indemnification provisions of
this Agreement, to limitations of public policy and the effect of applicable
statutes and judicial decisions. All consents, approvals and authorizations of,
and registrations, qualifications and filings with, any federal or state
governmental agency, authority or body, or any third party, required in
connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby and thereby shall have
been obtained prior to and be effective as of each Closing.
2.3. Status of Non-Patent and Patent Proprietary Assets.
(a) Ownership. The Company has full title and ownership of, or
has license to, or can acquire on reasonable terms, all trademarks, service
marks, trade names, copyrights, moral rights, mask works, trade secrets,
confidential and proprietary information, compositions of matter, formulas,
designs, proprietary rights, know-how and processes (all of the foregoing
collectively hereinafter referred to as the "Non-Patent Proprietary Assets")
necessary to enable it to carry on its business as now conducted without any
conflict with or infringement of the rights of others. To the best of the
Company's knowledge after reasonable investigation (the "Company's Best
Knowledge"), the Company has full title and ownership of, or has license to, or
can acquire on reasonable terms, all patents and patent applications
(collectively hereinafter referred to as the "Patent Proprietary Assets")
necessary to enable it to carry on its business as now conducted without any
conflict with or infringement of the rights of others. To the
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Company's Best Knowledge, no governmental agency, authority or body or third
party has any ownership right, title, interest, claim in or lien on any of the
Company's Non-Patent Proprietary Assets or Patent Proprietary Assets and the
Company has taken, and in the future the Company will use its best efforts to
take, all steps reasonably necessary to preserve its legal rights in, and the
secrecy of, all its Non-Patent Proprietary Assets and Patent Proprietary Assets,
except those for which disclosure is required for legitimate business or legal
reasons.
(b) Licenses; Other Agreements. The Company has not granted,
and, to the Company's Best Knowledge, there are not outstanding, any options,
licenses or agreements of any kind relating to any Non-Patent Proprietary Assets
or Patent Proprietary Assets of the Company, nor is the Company bound by or a
party to any option, license or agreement of any kind with respect to any of its
Non-Patent Proprietary Assets or Patent Proprietary Assets. The Company is not
obligated to pay any royalties or other payments to third parties with respect
to the marketing, sale, distribution, manufacture, license or use of any
Non-Patent Proprietary Asset or Patent Proprietary Asset or any other property
or rights.
(c) No Infringement. To the Company's Best Knowledge, the
Company has not violated or infringed, and is not currently violating or
infringing, and the Company has not received any communications alleging that
the Company (or any of its employees or independent contractors) has violated or
infringed any Non-Patent Proprietary Asset of any other person or entity. To the
Company's Best Knowledge, the Company has not violated or infringed, and is not
currently violating or infringing, and the Company has not received any
communications alleging that the Company (or any of its employees or independent
contractors) has violated or infringed any Patent Proprietary Asset of any other
person or entity.
(d) No Breach by Employee. To the Company's Best Knowledge,
the Company is not aware that any employee or independent contractor of the
Company is obligated under any agreement (including licenses, covenants or
commitments of any nature), or subject to any judgment, decree or order of any
court or administrative agency or any other restriction, that would interfere
with the use of his or her best efforts to carry out his or her duties for the
Company or to promote the interests of the Company or that would conflict with
the Company's business as proposed to be conducted.
2.4. Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the Company's Best
Knowledge, threatened) against the Company, its activities, properties or assets
or, to the Company's Best Knowledge, against any officer, director or employee
of the Company in connection with such officer's, director's or employee's
relationship with, or actions taken on behalf of, the Company which might
result, individually or in the aggregate in any material adverse change in the
business, properties, assets, financial condition, affairs or prospects of the
Company. To the Company's Best Knowledge, there is no factual or legal basis for
any such Action.
2.5. Reports; Accuracy of Information. The Company has previously
delivered to the Purchaser true and complete copies of (i) the Company's annual
report on Form 10-K for the fiscal year ended June 30, 1996, as filed with the
Securities and Exchange Commission (the "SEC"), (ii) all other periodic reports
required to be filed by the Company with the SEC pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
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Act"), since June 30, 1995 and (iii) all proxy statements and annual and
quarterly reports furnished to the Company's shareholders since June 30, 1995.
As of their respective dates (or, if any such report or proxy statement shall
have been amended, as of the date of such amendment), such reports and proxy
statements (A) complied with all applicable provisions, rules and regulations of
federal securities laws and (B) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances in which such statements were made, not misleading. Since June 30,
1995, the Company has timely filed all reports and registration statements
required to be filed by the Company with the SEC under the rules and regulations
of the SEC.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Company as follows:
3.1. Authorization. This Agreement when executed and delivered by
the Purchaser constitutes a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization
and similar laws affecting creditors' rights generally and to general equitable
principles and as to the enforceability of the indemnification provisions of
this Agreement, to limitations of public policy and the effect of applicable
statutes and judicial decisions.
3.2. Investigation; Economic Risk. The Purchaser acknowledges that
it has had an opportunity to discuss the business, affairs and current prospects
of the Company with its officers. The Purchaser further acknowledges having had
access to information about the Company that it has requested. The Purchaser
acknowledges that it is able to fend for itself in the transactions contemplated
by this Agreement and has the ability to bear the economic risks of its
investment pursuant to this Agreement.
3.3. Purchase for Own Account. The Securities will be acquired for
the Purchaser's own account, not as a nominee or agent, and not with a view to
or in connection with the sale or distribution of any part thereof.
3.4. Exempt from Registration; Restricted Securities. The Purchaser
understands that the Warrants will not be registered under the Securities Act of
1933, as amended (the "Act"), on the ground that the sale provided for in this
Agreement is exempt from registration under of the Act, and that the reliance of
the Company on such exemption is predicated in part on the Purchaser's
representations set forth in this Agreement. The Purchaser understands that the
Securities are restricted securities within the meaning of Rule 144 under the
Act, and must be held indefinitely unless they are subsequently registered or an
exemption from such registration is available.
3.5. Restrictive Legends. It is understood that the Warrants and
each certificate representing the Warrant Stock and any other securities issued
in respect of the Warrant Stock upon any stock split, stock dividend,
recapitalization, merger or similar event (unless no longer required in the
opinion of counsel for the Company) shall be stamped or otherwise imprinted
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with a legend substantially in the following form (in addition to any legend
that may now or hereafter be required by applicable state law):
THE WARRANT/SECURITIES EVIDENCED OR CONSTITUTED HEREBY [AND THE
SHARES OF COMMON STOCK ISSUABLE HEREUNDER] HAVE BEEN AND WILL BE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY
NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
REGISTRATION UNDER THE ACT UNLESS EITHER (i) THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH
SUCH DISPOSITION OR (ii) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO
SECURITIES AND EXCHANGE COMMISSION RULE 144.
The legend set forth above shall be removed by the Company from any
certificate evidencing Warrant Stock upon delivery to the Company of an opinion
by counsel, reasonably satisfactory to the Company, that a registration
statement under the Act is at that time in effect with respect to the legend
security or that such security can be freely transferred in a public sale
without such a registration statement being in effect and that such transfer
will not jeopardize the exemption or exemptions from registration pursuant to
which the Company issued the Warrant Stock.
4. REGISTRATION RIGHTS.
4.1. Definitions. As used in this Section 4:
(a) The terms "register", "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act and the declaration or ordering of the
effectiveness of such registration statement;
(b) The term "Registrable Securities" means: (i) any Common
Stock issued or to be issued pursuant to exercise of the Warrants and (ii) any
Common Stock or other securities issued as a dividend or other distribution with
respect to, or in exchange for, or in replacement of, the Common Stock described
in subsection (i) of this Section 4.1(b); provided, however, that any such
securities shall cease to be Registrable Securities with respect to a proposed
offer or sale thereof when such securities shall have been disposed of under SEC
Rule 144 or in accordance with the plan of distribution set forth in an
effective registration statement under the Act; and
(c) The term "Holder" means any holder of outstanding
Registrable Securities or any person to which the registration rights provided
for in this Section 4 shall have been properly assigned in accordance with
Section 4.10 hereof.
4.2. Form S-3 Shelf Registration. Promptly following each Closing,
the Company shall use its diligent best efforts to prepare a registration
statement on Form S-3 covering the Registrable Securities (or any amendment to
an already effective Registration Statement) and, within forty-five (45) days of
the date of each Closing, to file such registration and all related
qualifications and compliances (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate qualification
under the applicable
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blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Act and any other governmental
requirements or regulations) as may be requested by Holder so as to permit or
facilitate the sale and distribution of the Registrable Securities. The Company
agrees to use its diligent best efforts to cause each such registration
statement to be declared effective by the SEC as quickly as possible. The
Company agrees to maintain the effectiveness of such registration statement
until the Holder has completed the distribution of the Registrable Securities
described in such registration statement or until all of the Registrable
Securities could be sold by the Holder to the public in an offering without
registration pursuant to Rule 144 within a period of three consecutive months.
4.3. Failure to Register; Acceleration of Warrants. If (a) the
Company does not effect the registration of the Registrable Securities
contemplated by Section 4.2 within the 45-day period following the Closing or
(b) the Company does not maintain the effectiveness of such registration
statement during the period it is required to do so pursuant to Section 4.2,
then all of the Warrants shall be deemed issued and immediately exercisable with
respect to the full amount of the Warrant Stock (regardless of the Value of
Equipment Accepted or any other provisions of Section 1.4, although the
Purchaser shall continue to be obligated to pull in its total forecast equipment
requirements in accordance with the Equipment Agreement). The Company shall take
such action as is necessary or requested by the Holder to document the issuance
of such Warrants and, at the request of the Holder, the Company take such action
as shall be necessary to register the Registrable Securities as promptly as
practicable.
4.4. Blackout Periods. Notwithstanding any other provisions of this
Agreement, if the Company provides to the Holder a certificate signed by the
President or Chief Financial 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 the Holder to sell the
Registrable Securities under the Form S-3 registration during any sixty (60) day
period (the "Blackout Period") designated by the Company, then the Holder shall
not sell any shares of the Registrable Securities under the registration
statement during the Blackout Period; provided, however, that there shall be no
more than two (2) Blackout Periods during any calendar year and no more than
three (3) Blackout Periods during any consecutive two-year period; and,
provided, further, that if a Blackout Period is in effect at the time any
Warrant expires, then the expiration date of such Warrant shall be extended
until thirty (30) days after the end of the Blackout Period.
4.5. Expenses of Registration. All expenses incurred in connection
with any registration, qualification or compliance pursuant to Section 4.2,
including without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company, expenses
of any special audits incidental to or required by such registration shall be
borne by Company, except that the Company shall not be required to pay any
underwriters' discounts, commissions or stock transfer taxes relating to
Registrable Securities.
4.6. Provision of Documentation and Information. The Company shall:
(a) furnish such number of prospectuses and other documents
incident to the Form S-3 registration statement as the Holder from time to time
may reasonably request;
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(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statements as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
(c) notify the Holder, at any time when a prospectus relating
thereto covered by such registration statement is required to be delivered under
the 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;
(d) as promptly as practicable upon the occurrence of any
event contemplated by clause (c) above (other than during a Blackout Period),
prepare a supplement or post-effective amendment to the registration statement,
or file any other required documents so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold hereunder, the prospectus
will not contain an untrue statement of a material fact or an omission to state
a material fact to be required to be stated in a registration statement or
prospectus or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(e) furnish, at the request of the Holder, on the date that
the registration statement with respect to such securities becomes effective, an
opinion, date as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance customarily given in
connection with such registrations.
4.7. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
each Holder of Registrable Securities with respect to which registration,
qualification or compliance has been effected pursuant to this Section 4, each
of its officers and directors, and each person controlling such Holder, against
all claims, losses, damages, costs, expenses and liabilities of any nature
whatsoever (or actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other documents
(including any related registration, statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
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
any violation by the Company of the Act or any state securities law or of any
rule or regulation promulgated under the Act or any state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers and directors, and
each person controlling such Holder, for any legal and other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, cost, expense, liability or action, except that the Company will not be
liable in any such case to the extent that any such claim, loss, damage, cost,
expense, liability or action arises out of or is based on any untrue statement
or omission based upon written information furnished to the Company in an
instrument duly
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executed by any Holder and stated to be specifically for use therein, and except
that the foregoing indemnity agreement is subject to the condition that, insofar
as it relates to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the
registration statement becomes effective or in the amended prospectus filed with
the SEC pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any Holder if a copy of the Final
Prospectus was furnished to the person or entity asserting the claim, loss,
damage, cost, expense, liability or action at or prior to the time such action
is required by the Act.
(b) Indemnification by the Holders. Each Holder will, if
Registrable Securities held by or issuable to such Holder are included in the
securities to which such registration, qualification or compliance is being
effected, indemnify the Company, each of its directors and officers, each person
who controls the Company within the meaning of the Act, and each other Holder,
each of such other Holder's officers and directors and each person controlling
such other Holder, against all claims, losses, damages, costs, expenses and
liabilities of any nature whatsoever (or actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other documents (including any related registration statement, notification
or the like) incident to any such registration, qualification or compliance, or
based on any 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 any violation by such Holder of the Act or any state securities
law or of any rule or regulation promulgated under the Act or any state
securities law applicable to such Holder and relating to action or inaction
required of such Holder in connection with any such registration, qualification
or compliance, and will reimburse the Company, such other Holders, such
directors, officers or persons for any legal or other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, cost, expense, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company in an instrument
duly executed by such Holder and stated to be specifically for use therein,
except that the foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any such untrue statement (or alleged untrue statement)
or omission (or alleged omission) made in the preliminary prospectus but
eliminated or remedied in the Final Prospectus, such indemnity agreement shall
not inure to the benefit of the Company or any Holder if a copy of the Final
Prospectus was furnished to the person or entity asserting the claim, loss,
damage, cost, expense, liability or action at or prior to the time such action
is required by the Act. In no event shall the indemnity under this Section
4.7(b) exceed the gross proceeds from the offering received by such Holder.
(c) Procedures for Indemnification. Each party entitled to
indemnification under this Section 4.7 (the "Indemnified Party"), shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not
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unreasonably be withheld), and the Indemnified Party may participate in such
defense. Failure of the Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
4.7, unless the failure or delay in giving notice has a material adverse impact
on the ability of the Indemnifying Party to defend against such claim. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof, the giving of a release from all liability in respect to such
claim or litigation. If any such Indemnified Party shall have been advised by
counsel chosen by it that there may be one or more legal defenses available to
such Indemnified Party that are different from or additional to those available
to the Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party and will
reimburse such Indemnified Party and any person controlling such Indemnified
Party for the reasonable fees and expenses of any counsel retained by the
Indemnified Party, it being understood that the Indemnifying Party shall not, in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys for such Indemnified Party or controlling person, which firm shall be
designated in writing by the Indemnified Party to the Indemnifying Party.
4.8. Information by Holder. The Holders of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Holders and the distribution proposed by such Holders as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this Section
4.
4.9. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the SEC which may permit the sale
of Warrant Stock or Registrable Securities to the public without registration,
the Company agrees to:
(a) at all times make and keep public information available,
as those terms are understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
(c) furnish to the Purchaser, so long as the Purchaser owns
any Warrant Stock or Registrable Securities, forthwith upon written request, a
written statement by the Company that it has complied with the reporting
requirements of the Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing the Purchaser of
any rule or regulation of the SEC permitting the selling of any such securities
without registration.
4.10. Transfer of Registration Rights. The registration rights
granted by the Company under this Section 4 may be assigned by any Holder to any
permitted transferee or permitted assignee of the Warrant, Warrant Stock or
Registrable Securities, provided that any transfer or assignment of the Warrant
is approved in advance in writing by the Company, and
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provided further, that such transfer may otherwise be and is effected in
accordance with applicable federal and state securities laws and provided
further that the Company is given written notice of such transfer at the time of
or within a reasonable time after such transfer, stating the name and address of
the transferee or assignee and identifying the securities with respect to which
such registration rights are being assigned.
5. CONDITIONS TO CLOSINGS. The Purchaser's obligation to purchase the
Warrants at each Closing is subject to the fulfillment to the satisfaction of
the Purchaser on or prior to each Closing of the following conditions:
5.1. Representations and Warranties. The representations and
warranties made by the Company in Section 2 hereof shall be true when made, and
shall be true as of each Closing with the same force and effect as if they had
been made on and as of such date, subject to changes contemplated by this
Agreement.
5.2. Performance. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before each Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3. Securities Laws. The offer and sale of the Warrants to the
Purchaser pursuant to this Agreement shall be exempt from the registration
requirements of the Act and the registration and/or qualification requirements
of all applicable state securities laws.
5.4. Consents and Waivers. The Company shall have obtained any and
all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
5.5. Compliance Certificate. At each Closing, the Company shall have
delivered to the Purchaser a certificate, dated as of the date of such Closing
and signed by the Company's President or Chief Financial Officer, certifying
that the conditions specified in Sections 5.1, 5.2, 5.3 and 5.4 have been
fulfilled.
5.6. Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the each Closing hereby and
all documents and instruments incident to such transactions shall be
satisfactory in substance and form to the Purchaser, and the Purchaser shall
have received all such counterpart originals or certified or other copies of
such documents as it may reasonably request.
6. GENERAL PROVISIONS.
6.1. Governing Law. This Agreement shall be governed in all respects
by the laws of the state of Delaware without regard to provisions of such laws
concerning conflicts or choice of law.
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6.2. Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any party hereto
and the closing of the transactions contemplated hereby.
6.3. Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6.4. Entire Agreement. This Agreement and the exhibits hereto
constitute the entire understanding and agreement between the parties with
regard to the subjects hereof and thereof; provided, however, that nothing in
this Agreement shall be deemed to terminate or supersede the provisions of any
confidentiality and nondisclosure agreements executed by the parties hereto
prior to the date hereof, which agreements shall continue in full force and
effect until terminated in accordance with their respective terms.
6.5. Notices. Except as otherwise provided, all notices and other
communications required or permitted hereunder shall be in writing and shall be
mailed by first class mail, postage prepaid, addressed (a) if to the Purchaser,
to 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Mail Stop XX0-000, Xxxxx Xxxxx, Xxxxxxxxxx
00000-0000, Attn: Treasurer, and (b) if to the Company, to Integrated Process
Equipment Corporation, 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Chief
Financial Officer, or (c) to such other address as the receiving party shall
have furnished to the other in writing.
6.6. Amendments and Waivers. Any term of this Agreement may be
amended, and the observance of any term of the Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser
and only to the extent specifically set forth in such writing.
6.7. Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party hereto upon any breach or default
of the other party hereto under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of any similar breach of default
thereafter occurring. All remedies, either under this Agreement or by law or
otherwise afforded to the Company or the Purchaser shall be cumulative and not
alternative.
6.8. Legal Fees. In the event of any action at law, suit in equity
or arbitration proceeding in relation to this Agreement or any securities of
Company issued or to be issued to the Purchaser, the prevailing party shall be
paid by the other party a reasonable sum for attorney's fees and expenses for
such prevailing party.
6.9. Finder's Fees. Each party (a) represents and warrants to the
other party hereto that it has retained no finder or broker in connection with
the transactions contemplated by this Agreement, and (b) hereby agrees to
indemnify and to hold harmless the other party hereto from and against any
liability for any commission or compensation in the nature of a finder's fee of
any broker or other person or firm (and the costs and expenses of defending
against such liability or asserted liability) for which the indemnifying party
or any of its employees or representatives are responsible.
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6.10. Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
6.11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.12. Severability. Should any provision of this Agreement be
determined to be illegal or unenforceable, such determination shall not affect
the remaining provisions of this Agreement.
6.13. Confidentiality. The parties acknowledge that each party (a
"Disclosing Party") may, from time to time, disclose to the other party (a
"Receiving Party") confidential or proprietary information of the Disclosing
Party. The Receiving Party agrees to keep such information in confidence, to
disclose such information to its employees only on a need to know basis, and not
to disclose such information to any third party without the prior written
permission of the Disclosing Party. Only information which is in tangible form
and marked with a "confidential" or "proprietary" or similar legend, or if
disclosed orally or visually, which is identified as confidential at the time of
disclosure and is summarized in writing within thirty (30) days of its initial
disclosure shall be subject to the nondisclosure obligations set forth herein.
The Receiving Party shall be under no obligation with respect to any portion of
such information which is: (a) published or otherwise made available to the
public other than by breach of this Agreement by the Receiving Party; or (b)
rightfully received by the Receiving Party from a third party without disclosure
limitations; or (c) independently developed by the Receiving Party; or (d) known
to the Receiving Party prior to its first receipt of same from the Disclosing
Party; or (e) hereinafter disclosed by the Disclosing Party to a third party
without restriction on disclosure; or (f) disclosed by the Receiving Party with
the written consent of the Disclosing Party; or (g) disclosed by the Receiving
Party more than five years after the receipt of such information. Such
information may be disclosed by the Receiving Party if, in the reasonable
opinion of the Receiving Party, such disclosure is required by applicable law or
regulation, provided that the Receiving Party shall, a reasonable time before
making any such disclosure, consult with the Disclosing Party regarding such
disclosure and seek confidential treatment for such portions of those agreements
as may be requested by the Disclosing Party, so long as the Disclosing Party's
confidentiality requests are consistent with applicable regulations.
6.14. Public Announcements. The Company shall not use the
Purchaser's name or refer to the Purchaser directly or indirectly in connection
with the Purchaser's relationship with the Company in any advertisement, news
release or professional or trade publication, or in any other manner, unless
otherwise required by law or with the Purchaser's prior written consent, which
consent will generally not be granted. The parties agree that there will be no
press release or other public statement issued by either party relating to this
Agreement or the transactions contemplated hereby unless required by law. If the
Company determines that it is required by law to file this Agreement or the
Warrants with the SEC, it shall, a reasonable time before making any such
filing, consult with the Purchaser regarding such filing and seek confidential
treatment for such portions of those agreements as may be requested by the
Purchaser, so long as Purchaser's confidentiality requests are consistent with
applicable regulations. Notwithstanding
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the foregoing, the Purchaser acknowledges that it has reviewed and approved the
press release of the Company issued on October 3, 1996.
6.15 Acknowledgments. The Company and the Purchaser acknowledge and
agree that this Agreement replaces and supersedes that certain Binding Letter of
Intent, dated September 27, 1996, between the Company and the Purchaser, and
specifically acknowledge that the exercise price of the Warrant hereunder is
different from the exercise price set forth in the Binding Letter of Intent. The
Company and the Purchaser also acknowledge that two units of model 372M of the
Company's equipment ordered by the Purchaser in September 1996 were not
delivered by the Company to the Purchaser until October 1996. These two units of
model 372M shall not be counted toward the 15 units of model 372M in the
Pulled-In Forecast for the October-December 1996 quarter but shall be counted
for the September 1996 quarter. This delay in delivery to the October-December
1996 quarter shall not affect the Pulled-In Forecast for the October-December
1996 quarter, which remains as 15 units of model 372M and 3 units of model
676MP.
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The parties have executed this Agreement to be effective as of the date first
set forth above.
INTEL CORPORATION INTEGRATED PROCESS
EQUIPMENT CORP.
/s/ Xxxxxx Xxxxxxx
------------------------------------ --------------------------------------
Signature Signature
/s/ Xxxxxx Xxxxxxx
------------------------------------ --------------------------------------
Printed Name Printed Name
Treasurer
------------------------------------ --------------------------------------
Title Title
LIST OF EXHIBITS
Exhibit A Form of Warrant
Exhibit B Schedule of Exceptions
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