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EXHIBIT 10.48
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of this
5th day of May, 1999 by and among Silicon Valley Group, Inc., a Delaware
corporation (the "Company"), and Intel Corporation, a Delaware corporation (the
"Purchaser").
Recitals
A. The Company and the Purchaser have entered into that certain Series 1
Convertible Preferred Stock Purchase Agreement dated as of the date hereof (the
"Purchase Agreement") pursuant to which the Company shall sell to the Purchaser
15,000 shares of its Series 1 Convertible Preferred Stock (the "Series 1
Preferred").
B. The obligation of the Purchaser to purchase the Series 1 Preferred
under the Purchase Agreement is conditioned upon, among other things, the
execution and delivery of this Agreement.
Agreement
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
any successor agency.
"Exchange Act" shall mean the Securities and Exchange Act of
1934, as amended.
"Holder" shall mean each Purchaser and any transferee of
Registrable Securities who is entitled to registration rights hereunder.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 3 hereof (or any similar
legend).
"Registrable Securities" shall mean (i) shares of the Company's
Common Stock issued or issuable upon the conversion of the Series 1 Preferred;
(ii) shares of the Company's Common Stock or other securities issued or issuable
with respect to, or in exchange for or in replacement of the Series 1 Preferred
or the shares of the Company's Common Stock issued upon conversion of the Series
1 Preferred upon any stock split, stock dividend, recapitalization, or similar
event; provided, a security is not a Registrable Security after (a) it has been
registered and disposed of under the Securities Act, (b) it has been publicly
sold pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, or (c) it is capable of being disposed of without volume
limitations pursuant to Rule 144(k) (or any similar provision then in force)
under the Securities Act.
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The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 6 and 9 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, fees and
disbursements of a single counsel for all Holders participating in the
registration, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding all Selling
Expenses.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders as well as any fees and disbursements of any counsel to the Holders
other than counsel designated to represent all of the Holders in such
registration.
2. Restrictions on Transferability. The Restricted Securities shall not
be transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder to agree to take and
hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Series 1
Preferred, (ii) shares of the Company's Common Stock issued upon conversion of
the Series 1 Preferred, and (iii) any other securities issued in respect, or in
exchange for, or in replacement of, of the Series 1 Preferred or Common Stock
issued upon conversion of the Series 1 Preferred upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall be
stamped or otherwise imprinted with a legend in substantially the following form
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF SUCH REGISTRATION OR AN AVAILABLE
EXEMPTION THEREFROM. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF
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THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
provided, that no such certificate shall be required to bear the foregoing
legend (a) after the security evidenced thereby has been registered and disposed
of under the Securities Act, (b) after the security evidenced thereby has been
sold pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, or (c) to the extent so provided by the opinion of counsel or
"No action" letter contemplated by Section 4.
4. Opinion regarding Proposed Transfers. The Holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
of any Restricted Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the Holder thereof
shall provide to the Company either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act (provided, however, that no
opinion shall be required for sales under Rule 144 unless the Company's transfer
agent requires such an opinion), or (ii) a "No Action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the Holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms decribed in the opinion or "no action" letter
delivered by the Holder to the Company.
5. Deferral of Filing. If the Company shall furnish to Holders
requesting registration of Registrable Securities pursuant to Section 9 below a
certificate signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, the filing of a registration statement at such time would materially
interfere with a proposed acquisition, disposition or other corporate
transaction involving the Company, the Company shall have the right to defer the
filing of such registration statement for a period of not more than 90 days
after receipt of the request of the Holders under Section 9 below. If the
Company shall furnish to any Holder a certificate signed by the President or
Chief Executive Officer of the Company stating material nonpublic information
exists regarding the Company and that in the good faith judgment of the Board of
Directors of the Company disclosure of such information in an amended
registration statement or Exchange Act filing so as to allow such Holder to
continue to make sales under a registration statement filed pursuant to Section
9 hereof would materially interfere with a material acquisition, disposition or
other corporate transaction involving the Company, such Holder will, upon
receipt of such notice, discontinue the sale of the Registerable Secutities
covered by such registration statement, until receipt of a further notice from
the Company that sales may be resumed pursuant to the existing prospectus
contained in such registration statement and/or receipt of an amended prospectus
supplied by the
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Company, which notice and/or prospectus shall be supplied no later than 90 days
after receipt of the initial notice.
6. Company Registration.
(a) Notice of Registration. If the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than (i) a registration relating solely to employee benefit plans,
or (ii) a registration on any registration form which does not permit secondary
resales or does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities (including a registration statement solely for the
purpose of registering securities to be issued in a merger or like transaction,
including a Commission Rule 145 transaction), the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within ten (10) days after receipt of such written notice from
the Company, by any Holder or Holders. Notwithstanding any other provision of
this Section 6, if the Company or the managing underwriter advises the Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the number of shares of Registrable Securities that may
be included in the registration and underwriting shall be allocated among all
Holders requesting inclusion in the registration in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement, provided however, that
the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all shares held by officers, directors
and employees of the Company which are not Registrable Securities are first
entirely excluded from the Underwriting.
7. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 6 and 9 hereof shall be borne by the Company. All Selling Expenses
relating to securities registered by the Holders shall be borne by the Holders
of such securities.
8. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. In addition, at its expense the Company will:
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(a) Keep such registration, qualification or compliance effective
for a period of 180 days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs;
(b) Furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request;
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(d) Use reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(e) Cause all such Registrable Securities registered to be listed
on each securities exchange or system on which similar securities issued by the
Company are then listed; and
(f) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriters of such offering.
9. Registration on Form S-3. In addition to the rights set forth in
Section 6 hereof, if a Holder or Holders request that the Company file a
registration statement on Form S-3 (or any successor thereto) for a public
offering of shares of Registrable Securities the reasonably anticipated
aggregate price to the public of which would exceed $5,000,000, and the Company
is a registrant entitled to use Form S-3 to register securities for such an
offering, the Company shall use its commercially reasonable efforts to cause
such shares to be registered for the offering on such form (or any successor
thereto). The Company shall not be obligated to take any action to effect any
registration statement pursuant to this Section 9 after the Company effected
three (3) such registration statements, and such registrations have been
declared or ordered effective. Further, the Company shall not be required to
file more than one (1) such registration statement during any twelve (12) month
period.
10. Lockup Agreement. In consideration for the Company agreeing to its
obligations under this Agreement, each Holder of Registrable Securities agrees,
in connection with any public offering of the Company's securities pursuant to
Section 6 upon request of the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included
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in the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 90
days) from the effective date of such offering as the underwriters may specify
provided that all officers and directors of the Company shall have agreed to
similar restrictions on disposition of shares held by them. Each Holder agrees
that the Company may instruct its transfer agent to place stop transfer
notations in its records to enforce the provisions of this Section 10.
11. Indemnification.
(a) The Company will indemnify each Holder, each of its officers
and directors and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, 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
document, or any amendment or supplement thereto, 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, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or the Exchange Act 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, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with information
furnished to the Company by such Holder or underwriter and stated to be
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (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 document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements
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therein not misleading, and will reimburse the Company, such Holders, such
directors, officers, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, 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 information furnished to the Company by such Holder and stated
to be specifically for use therein; provided, however, that the obligations of
such Holders hereunder shall be limited to an amount equal to the net proceeds
to each such Holder of Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 11
(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 be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that (i) the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice and (ii) the
Indemnifying Party shall not assume the defense of matters as to which there is
a conflict of interest or separate and different defenses, but shall instead
pay, in all such instances, all reasonable legal fees and expenses incurred by
counsel (including local counsel) for the Indemnified Party. 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 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.
12. Information by Holder. Any Holder of Registrable Securities included
in any registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may request
and as shall be required in connection with any registration, qualification or
compliance referred to in this Agreement.
13. Transfer of Registration Rights. The right to cause the Company to
register securities granted to the Holders hereunder may be assigned to a
transferee or assignee who acquires at least 5,000 shares (as adjusted for stock
splits or similar events after the date hereof) of Series 1 Preferred (or Common
Stock issued on conversion of Series 1 Preferred), provided that the Company is
given written notice of such assignment prior to such assignment.
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14. Governing Law. This Agreement and the legal relations among the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
15. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the subject matter
hereof. 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.
16. Notices etc.. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon delivery to the party to be notified in person or by courier service,
addressed (a) if to the Purchaser, to the Purchaser's address set forth on the
signature page hereto, or at such other address as the Purchaser shall have
furnished to the Company in writing, or (b) if to any other holder of any
Registrable Securities, to such address as such holder shall have furnished the
Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last holder of such Securities who
has so furnished an address to the Company, or (c) if to the Company, to its
address set forth on the signature page of this Agreement the attention of the
Chief Financial Officer or at such other address as the Company shall have
furnished to the Holders, with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000
Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx.
17. 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.
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IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the date set forth above.
"COMPANY"
SILCON VALLEY GROUP, INC.
By:
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Xxxxxxx X. Xxxxxxxxx
Vice President, Finance
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address: 000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
"PURCHASER"
INTEL CORPORATION
By:
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Xxxxxx Xxxxxxx
Vice President and Secretary
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address: 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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