EXHIBIT 10.1
February 15, 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
849,514 shares of the Company's Common Stock (the "Shares") for an
aggregate purchase price of $5,029,982, 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
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. As of February 14, 2000 neither Purchaser or its
affiliates hold any securities of the Company.
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 case 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 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
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waived other than by an instrument in writing signed by the party
against whom enforcement is sought.
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 February 15, 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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