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EXHIBIT 10.1
March 28, 2000
Acqua Wellington North American Equities Fund Limited
c/o MeesPierson Fund Services (Bahamas) Ltd.
Xxxxxxxx Xxxxxxxx Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement of Acqua Wellington North American
Equities Fund Limited (the "Purchaser") and Tegal Corporation (the "Company")
regarding the purchase by the Purchaser from the Company of the Company's common
stock (the "Common Stock") on the date hereof. The parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser of
442,822 shares of the Company's Common Stock (the "Shares") for an
aggregate purchase price of $2,970,000, which purchase is being settled
by the parties on the date hereof.
2. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware. The Company has the
requisite corporate power and authority to enter into and perform this
Agreement and to issue and sell the Shares in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by the
Company and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action. A copy of the duly executed resolutions of the Board of
Directors of the Company is attached hereto as Exhibit "B". This
Agreement has been duly executed and delivered on behalf of the Company
by a duly authorized officer. A copy of a duly executed incumbency
certificate of the Company's duly authorized officers is attached hereto
as Exhibit "C". This Agreement (assuming its due execution and delivery
by the other party hereto) constitutes, or shall constitute when
executed and delivered, a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
3. The Shares to be issued under this Agreement have been duly
authorized by all necessary corporate action and, when paid for or
issued in accordance with the terms hereof, the Shares shall be validly
issued, fully paid and nonassessable.
4. The Company represents and warrants that (a) the Company has
filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 415 under
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the Securities Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-3, Commission File Number 333-94093
(such registration statement, as amended when it became effective on
January 10, 2000 under the Securities Act, shall be referred to
hereinafter as the "Registration Statement"); (b) the Company has filed
a prospectus supplement to the Registration Statement in connection with
this transaction; and (c) the Shares are registered under the
Registration Statement. Copies of the Registration Statement and the
Prospectus Supplement, each as filed (and declared effective, if
applicable) by the Securities and Exchange Commission, are annexed
hereto as Exhibits "D" and "E", respectively.
5. [Deleted Intentionally.]
6. The Company will continue to take all reasonable action
necessary to continue the listing or trading of its Common Stock on the
NASDAQ National Market or any relevant market or system, if applicable,
and will comply in all material respects with the Company's reporting,
listing (including, without limitation, the listing of the Shares
purchased by the Purchaser) or other obligations under the rules of the
NASDAQ National Market or any relevant market or system.
7. The Company has filed with the Commission all reports, forms,
registration statements, definitive proxy statements and documents
required to be filed with the SEC since March 31, 1997 (the "Commission
Filings"). The Company has delivered or made available to the Purchaser
true and complete copies of the Commission Filings. As of their
respective dates, each of the Commission Filings complied in all
material respects with the requirements of the Securities Exchange Act
of 1934 (the "Exchange Act") and the rules and regulations of the
Commission promulgated thereunder, and, as of their respective dates,
none of the Commission Filings referred to above contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Each of the consolidated balance sheets of the
Company included in or incorporated by reference into the Commission
Filings (including the related notes and schedules) presents fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of its date, and each of the consolidated statements of
income, retained earnings and cash flows of the Company included in or
incorporated by reference into the Commission Filings (including any
related notes and schedules) presents fairly the results of operations,
retained earnings or cash flows, as the case may be, of the Company and
its subsidiaries for the periods set forth therein (subject, in the case
of unaudited statements, to normal year-end audit adjustments), in each
case in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein.
8. The Company will promptly notify the Purchaser of (a) any stop
order or other suspension of the effectiveness of the Registration
Statement and (b) the happening of any event as a result of which the
prospectus included in the Registration Statement
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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, in light of the circumstances under which they were
made, not misleading.
9. Except as otherwise required by applicable law or requirements
of any stock exchange or NASDAQ, as applicable, the Company may not
issue a press release or otherwise make a public statement or
announcement with respect to the completion of the transaction
contemplated hereby without the prior consent of the Purchaser, which
shall not be unreasonably withheld.
10. The Company and the Purchaser will indemnify the other party as
provided in Exhibit "A" attached hereto. For purposes of said Exhibit A,
capitalized terms used therein without definition shall have the same
meanings therein as are ascribed to said terms in this Agreement.
11. This Agreement shall be governed and construed in accordance
with the substantive laws of the State of New York without giving effect
to the conflicts of law principles thereunder. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof. This Agreement may be
executed in two or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
12. The Purchaser has the requisite power and authority to enter
into and perform this Agreement and to purchase the Shares. The
execution, delivery and performance of this Agreement by Purchaser and
the consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action. This Agreement constitutes, or
shall constitute when executed and delivered, a valid and binding
obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
13. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
14. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Purchaser and no
provision hereof may be waived other than by an instrument in writing
signed by the party against whom enforcement is sought.
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Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the
Purchaser, will constitute an Agreement between the Company and the Purchaser.
Very truly yours,
TEGAL CORPORATION
By:
-------------------------------------
Name:
Title:
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH AMERICAN
EQUITIES FUND LIMITED
By:
---------------------------------
Name:
Title:
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EXHIBIT 'A'
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of
1933, as amended (the "Securities Act"); or Section 20(a) of the
Securities Exchange Act, as amended (the "Exchange Act"); from and
against any losses, claims, damages, liabilities, costs and expenses
(including, without limitation, reasonable costs of defense and
investigation and all attorneys' fees and expenses) to which the
Purchaser and each person, if any, who controls the Purchaser may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated
by reference, in the Registration Statement relating to Shares being
sold to the Purchaser (including the prospectus dated January 10, 2000,
the prospectus supplement dated March 28, 2000 (the "Prospectus
Supplement") which are a part of the Registration Statement), or any
amendment or supplement to the Registration Statement, or (ii) the
omission or alleged omission to state in that Registration Statement or
any document incorporated by reference in the Registration Statement, a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities, costs and expenses are caused by any such
untrue statement or omission or alleged untrue statement or omission of
material fact so made in reliance upon and in conformity with
information furnished in writing to the Company by the Purchaser or on
the Purchaser's behalf expressly for inclusion therein (an
"Indemnifiable Matter").
The indemnifying party will reimburse the indemnified party and each
such controlling person promptly upon demand for any legal or other
costs or expenses reasonably incurred by the indemnified party or the
controlling person in investigating, defending against, or preparing to
defend against any claim relating to the applicable Indemnifiable
Matter.
(b) INDEMNIFICATION BY PURCHASER Purchaser agrees to indemnify and hold
harmless the Company, its officers, directors and agents and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to the
Purchaser, but only with respect to information relating to the
Purchaser furnished in writing by the Purchaser or with the Purchaser's
authorization on the Purchaser's behalf expressly for use in any
registration statement or prospectus relating to the Shares, or any
amendment or supplement thereto.
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(c) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of a
claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraph (a), the person
will notify the indemnifying party in writing of the claim or
commencement of the action, suit or proceeding, but failure to notify
the indemnifying party will not relieve the indemnifying party from
liability under Paragraph (a), except to the extent the indemnifying
party has been materially prejudiced by the failure to give notice. The
indemnifying party will be entitled to participate in the defense of any
claim, action, suit or proceeding as to which indemnification is being
sought, or the indemnifying party may (but will not be required to)
assume the defense against the claim, action, suit or proceeding with
legal counsel chosen by the indemnifying party. After an indemnifying
party notifies an indemnified party that the indemnifying party wishes
to assume the defense of a claim, action, suit or proceeding the
indemnifying party will not be liable for any legal or other expenses
incurred by the indemnified party in connection with the defense against
the claim, action, suit or proceeding, except that if, in the opinion of
legal counsel to the indemnifying party, one or more of the indemnified
parties should be separately represented in connection with a claim,
action, suit or proceeding the indemnifying party will pay the
reasonable fees and expenses of one separate counsel for the indemnified
parties. Each indemnified party, as a condition precedent to receiving
indemnification as provided in Paragraph (a), will, at the cost and
expense of the indemnifying party, cooperate in all reasonable respects
with the indemnifying party in the defense of the claim, action, suit or
proceeding as to which indemnification is sought. No indemnifying party
will be liable for any settlement of any claim, action, suit or
proceeding effected without its prior written consent. No indemnifying
party will, without the prior written consent of the indemnified party,
effect any settlement of a pending or threatened claim, action or
proceeding with respect which an indemnified party is, or is informed
that it may be, made a party and for which it would be entitled to
indemnification, unless the settlement includes an unconditional release
of the indemnified party from all liability and claims which are the
subject matter of the pending or threatened action other than financial
obligations for which the indemnified party will be indemnified
hereunder.
(d) CONTRIBUTION. If for any reason the indemnification provided for in this
Agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost
or expense referred to in Paragraph (a), each indemnifying party will,
in lieu of indemnifying the indemnified party, contribute to the amount
paid or payable by the indemnified party, as a result of the loss,
claim, damage, liability, cost or expense (i) in the proportion which is
appropriate to reflect the relative benefits received by the
indemnifying party, on the one hand, and by the indemnified party, on
the other hand, from the sale of stock which is the subject of the
claim, action, suit or proceeding which resulted in the loss, claim,
liability, cost or expense or (ii) if that allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits of the sale of stock, but also the relative
fault of the indemnifying party and the indemnified party with respect
to the statements or omissions which are the subject of the claim,
action, suit or proceeding that resulted in the loss,
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claim, damage, liability, cost or expense as well as any other relevant
equitable considerations.
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