Exhibit 4.5
Void after June 30, 2011 Warrant No. ________
[____________] to acquire [_________] share
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THIS WARRANT AND SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT. THIS WARRANT AND SUCH SHARES
MAY NOT BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO TRANSFER OF THIS WARRANT OR SUCH SHARES
SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS
SHALL HAVE BEEN COMPLIED WITH.
TEGAL CORPORATION
COMMON STOCK PURCHASE WARRANT
Tegal Corporation (the "Company"), having its principal office at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby certifies that, for
value received, _____________, or assigns, is entitled, subject to the terms set
forth below, to purchase from the Company at any time on or from time to time
after June __, 2003 and before ____ P.M., New York City time, on June __, 2011
or as extended in accordance with the terms hereof (the "Expiration Date"),
______________ fully paid and non-assessable shares of Common Stock of the
Company, at the initial Purchase Price per share (as defined below) of $0.50.
The number and character of such shares of Common Stock and the Purchase Price
per share are subject to adjustment as provided herein.
BACKGROUND. The Company agreed to issued warrants to purchase an
aggregate of up to 4,114,224 shares of Common Stock (subject to adjustment as
provided herein) in connection with the Company's private placement of up to 144
units ("Units") each Unit consisting of (i) 28,571 eight-year warrants (each a
"Warrant" and, collectively the "Warrants"), each Warrant entitling the Holder
thereof to purchase one share of Common Stock and (ii) $50,000 in 2% Secured
Convertible Debentures due on the Expiration Date (each a Debenture and
collectively, the "Debentures").
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
The term "Company" includes the Company and any corporation
which shall succeed to or assume the obligations of the Company hereunder. The
term "corporation" shall
include an association, joint stock company, business trust, limited liability
company or other similar organization.
The term "Common Stock" includes all stock of any class or
classes (however designated) of the Company, authorized upon the Original Issue
Date or thereafter, the Holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the Holders of which
shall ordinarily, in the absence of contingencies, be entitled to vote for the
election of a majority of directors of the Company (even though the right so to
vote has been suspended by the happening of such a contingency).
The term "Exchange Act" means the Securities Exchange Act of
1934 as the same shall be in effect at the time.
"Excluded Stock" shall mean shares of Common Stock issued by
the Corporation (i) reserved for employees or consultants (up to the available
incentive pool), (ii) to bona fide leasing companies, strategic partners, or
major lenders, (iii) as the purchase price in a bona fide acquisition or merger
(including reasonable fees paid in connection therewith) or (iv) upon issuance
conversion or exercise of the Debentures or Warrants.
"Fair Market Value" shall mean the fair market value of assets
or securities as reasonably determined by the Board of Directors of the
Corporation in good faith in accordance with generally accepted accounting
principles.
The term "Holder" means any record owner of Warrants or
Underlying Securities.
The term "Nasdaq" means the Nasdaq SmallCap Market, Nasdaq
Stock Market or other principal market on which the Common Stock is traded.
The "Original Issue Date" means June 30, 2003.
The term "Other Securities" refers to any stock (other than
Common Stock) and other securities of the Company or any other person (corporate
or otherwise) which the Holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Warrants, in lieu of
or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 6 or otherwise.
The term "Purchase Price per share" means $0.50 per share, as
adjusted from time to time in accordance with the terms hereof.
The terms "registered" and "registration" refer to a
registration effected by filing a registration statement in compliance with the
Securities Act, to permit the disposition of Common Stock (or Other Securities)
issued or issuable upon the exercise of Warrants, and any
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post-effective amendments and supplements filed or required to be filed to
permit any such disposition.
The term "Securities Act" means the Securities Act of 1933 as
the same shall be in effect at the time.
The term "Stockholder Approval" means the approval of the
stockholders of the Company for the issuance of all the Units as required by the
applicable rules of The Nasdaq Stock Market.
The term "Underlying Securities" means any Common Stock or Other
Securities issued or issuable upon exercise of Warrants.
The term "Warrant" means, as applicable, this Warrant or each
right as set forth in this Warrant to purchase one share of Common Stock, as
adjusted.
1. REGISTRATION, ETC. The Holder shall have the rights to
registration of Underlying Securities issuable upon exercise of the Warrants
that are set forth in the Registration Rights Agreement, dated the Original
Issue Date, between the Company and the Holder (the "Registration Rights
Agreement").
2. SALE OR EXERCISE WITHOUT REGISTRATION. If, at the time of any
exercise, transfer or surrender for exchange of a Warrant or of Underlying
Securities previously issued upon the exercise of Warrants, such Warrant or
Underlying Securities shall not be registered under the Securities Act, the
Company may require, as a condition of allowing such exercise, transfer or
exchange, that the Holder or transferee of such Warrant or Underlying
Securities, as the case may be, furnish to the Company an opinion of counsel,
reasonably satisfactory to the Company, to the effect that such exercise,
transfer or exchange may be made without registration under the Securities Act,
provided that the disposition thereof shall at all times be within the control
of such Holder or transferee, as the case may be, and provided further that
nothing contained in this Section 2 shall relieve the Company from complying
with any request for registration pursuant to the Registration Rights Agreement.
The first Holder of this Warrant, by acceptance hereof, represents to the
Company that it is acquiring the Warrants for investment and not with a view to
the distribution thereof.
3. EXERCISE OF WARRANT.
3.1. EXERCISE IN FULL. Subject to the provisions
hereof, this Warrant may be exercised in full by the Holder hereof by
surrender of this Warrant, with the form of subscription at the end
hereof duly executed by such ▇▇▇▇▇▇, to the Company at its principal
office accompanied by payment, in cash or by certified or official bank
check payable to the order of the Company, in the amount obtained by
multiplying the number of shares of Common Stock issuable upon exercise
of this Warrant by the Purchase Price per share, after giving effect to
all adjustments through the date of exercise.
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3.2. PARTIAL EXERCISE. Subject to the provisions
hereof, this Warrant may be exercised in part by surrender of this
Warrant in the manner and at the place provided in Section 3.1 except
that the amount payable by the Holder upon any partial exercise shall
be the amount obtained by multiplying (a) the number of shares of
Common Stock (without giving effect to any adjustment therein)
designated by the Holder in the subscription at the end hereof by (b)
the Purchase Price per share. Upon any such partial exercise, the
Company at its expense will forthwith issue and deliver to or upon the
order of the Holder hereof a new Warrant or Warrants of like tenor, in
the name of the Holder hereof or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment therein) to
the number of such shares called for on the face of this Warrant minus
the number of such shares designated by the Holder in the subscription
at the end hereof.
3.3. EXERCISE BY SURRENDER OF WARRANT OR SHARES OF
COMMON STOCK. In addition to the method of payment set forth in
Sections 3.1 and 3.2 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrants shall have the right at any
time and from time to time to exercise the Warrants in full or in part
by surrendering shares of Common Stock, this Warrant or other
securities issued by the Company in the manner and at the place
specified in Section 3.1 as payment of the aggregate Purchase Price per
share for the Warrants to be exercised. The number of Warrants or
shares of Common Stock to be surrendered in payment of the aggregate
Purchase Price for the Warrants to be exercised shall be determined by
multiplying the number of Warrants to be exercised by the Purchase
Price per share, and then dividing the product thereof by an amount
equal to the Market Price (as defined below) . The number of shares of
Common Stock or such other securities to be surrendered in payment of
the aggregate Purchase Price for the Warrants to be exercised shall be
determined in accordance with the preceding sentence as if the other
securities had been converted into Common Stock immediately prior to
exercise or, in the case the Company has issued other securities which
are not convertible into Common Stock, at the Market Price thereof.
3.4. DEFINITION OF MARKET PRICE. As used herein, the
phrase "Market Price" at any date shall be deemed to be (i) if the
principal trading market for such securities is an exchange, the
average of the last reported sale prices per share for the last five
previous trading days in which a sale was reported, as officially
reported on any consolidated tape, (ii) if the principal market for
such securities is the over-the-counter market, the average of the high
bid prices per share on such trading days as set forth by Nasdaq or,
(iii) if the security is not quoted on Nasdaq, the average of the high
bid prices per share on such trading days as set forth in the National
Quotation Bureau sheet listing such securities for such days.
Notwithstanding the foregoing, if there is no reported closing price or
high bid price, as the case may be, on any of the ten trading days
preceding the event requiring a determination of Market Price
hereunder, then the Market Price shall be determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it.
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3.5. COMPANY TO REAFFIRM OBLIGATIONS. The Company
will, at the time of any exercise of this Warrant, upon the request of
the Holder hereof, acknowledge in writing its continuing obligation to
afford to such Holder any rights (including, without limitation, any
right to registration of the Underlying Securities) to which such
Holder shall continue to be entitled after such exercise in accordance
with the provisions of this Warrant, PROVIDED that if the Holder of
this Warrant shall fail to make any such request, such failure shall
not affect the continuing obligation of the Company to afford such
Holder any such rights.
3.6. CERTAIN EXERCISES. If an exercise of a Warrant
or Warrants is to be made in connection with a registered public
offering or sale of the Company, such exercise may, at the election of
the Holder, be conditioned on the consummation of the public offering
or sale of the Company, in which case such exercise shall not be deemed
effective until the consummation of such transaction.
4. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon
as practicable after the exercise of this Warrant in full or in part, and in any
event within three business days thereafter, the Company at its own expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully paid and non-assessable
shares of Common Stock or Other Securities to which such Holder shall be
entitled upon such exercise, plus, in lieu of any fractional share to which such
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then current Market Price of one full share, together with any other stock
or other securities and property (including cash, where applicable) to which
such Holder is entitled upon such exercise pursuant to Section 5 or otherwise.
5. ADJUSTMENT FOR DIVIDENDS IN OTHER STOCK, PROPERTY, ETC.;
RECLASSIFICATION, ETC. In case at any time or from time to time after the
Original Issue Date the holders of Common Stock (or, if applicable, Other
Securities) shall have received, or (on or after the record date fixed for the
determination of stockholders eligible to receive) shall have become entitled to
receive, without payment therefor
(i) other or additional stock or other securities or
property (other than cash) by way of dividend, or
(i) any cash paid or payable (including, without
limitation, by way of dividend), or
(ii) other or additional stock or other securities or
property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or
similar corporate rearrangement,
then, and in each such case the Holder of this Warrant, upon the exercise hereof
as provided in Section 3, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (ii) and (iii) of this Section 5(a)) which
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such Holder would hold on the date of such exercise if on the Original Issue
Date such Holder had been the Holder of record of the number of shares of Common
Stock called for on the face of this Warrant and had thereafter, during the
period from the Original Issue Date to and including the date of such exercise,
retained such shares and all such other or additional stock and other securities
and property (including cash in the cases referred to in subdivisions (ii) and
(iii) of this Section 5(a)) receivable by such Holder as aforesaid during such
period, giving effect to all adjustments called for during such period by
Sections 6 and 7 hereof. If the number of shares of Common Stock outstanding at
any time after the date hereof is decreased by a combination or reverse stock
split of the outstanding shares of Common Stock, the Purchase Price per share
shall be increased, and the number of shares of Common Stock purchasable under
this Warrant shall be decreased in proportion to such decrease in outstanding
shares of Common Stock.
6. REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case the
Company after the Original Issue Date shall (a) effect a reorganization, (b)
consolidate with or merge into any other person, or (c) transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, the Holder of this Warrant, upon the exercise hereof as provided in
Section 3 at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall be entitled to receive (and the Company shall be entitled to
deliver), in lieu of the Underlying Securities issuable upon such exercise prior
to such consummation or such effective date, the stock and other securities and
property (including cash) to which such Holder would have been entitled upon
such consummation or in connection with such dissolution, as the case may be, if
such Holder had so exercised this Warrant immediately prior thereto, all subject
to further adjustment thereafter as provided in Sections 5 and 7 hereof. The
Company shall not effect any such reorganization, consolidation, merger or sale,
unless prior to or simultaneously with the consummation thereof, the successor
corporation resulting from such consolidation or merger or the corporation
purchasing such assets or the appropriate corporation or entity shall assume, by
written instrument, the obligation to deliver to each Holder the shares of
stock, cash, other securities or assets to which, in accordance with the
foregoing provisions, each Holder may be entitled to and all other obligations
of the Company under this Warrant. In any such case, if necessary, the
provisions set forth in this Section 6 with respect to the rights thereafter of
the Holders shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any Other Securities or assets thereafter deliverable on
the exercise of the Warrants.
7. OTHER ADJUSTMENTS.
7.1. GENERAL. Other than as set forth in Sections 5
and 6, if, after the receipt of Stockholder Approval, the Company shall
issue any Common Stock other than Excluded Stock for a consideration
per share (determined as set forth below) less than the Purchase Price
per share in effect immediately prior to the issuance of such Common
Stock (the "New Issuance"), the Purchase Price per share in effect
immediately prior to each issuance shall forthwith be reduced to a new
Purchase Price per share determined by dividing (x) the sum of (I) the
consideration received by the Company in
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such issue less (II) the Fair Market Value of any securities or other
assets transferred by the Company in units or otherwise together with
such Common Stock ("Additional Assets"), by (y) the number of shares of
Common Stock (not including shares issuable upon conversion or exercise
of Additional Assets) issued in the New Issuance (the "New Purchase
Price"), and the number of shares of Common Stock for which this
Warrant is exercisable shall be increased to a new number of shares
determined by multiplying the number of shares of Common Stock for
which this Warrant is exercisable prior to the New Issuance by a
fraction, the numerator of which is the Purchase Price per share in
effect prior to the New Issuance and the denominator is the New
Purchase Price per share.
7.2. CONVERTIBLE SECURITIES. (a) In case the Company
shall issue or sell any securities convertible into Common Stock of the
Company ("Convertible Securities") after the date hereof, there shall
be determined the price per share for which Common Stock is issuable
upon the conversion or exchange thereof, such determination to be made
by dividing (i) the total amount received or receivable by the Company
as consideration for the issue or sale of such Convertible Securities,
plus the then current aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by
(ii) the maximum number of shares of Common Stock of the Company
issuable upon the conversion or exchange of all of such Convertible
Securities.
(b) If the price per share so determined shall be less than the
applicable Purchase Price per share, then such issue or sale shall be
deemed to be an issue or sale for cash (as of the date of issue or sale
of such Convertible Securities) of such maximum number of shares of
Common Stock at the price per share so determined, provided that, if
such Convertible Securities shall by their terms provide for an
increase or increases or decrease or decreases, with the passage of
time, in the amount of additional consideration, if any, to the
Company, or in the rate of exchange, upon the conversion or exchange
thereof, the adjusted Purchase Price per share shall, forthwith upon
any such increase or decrease becoming effective, be readjusted to
reflect the same, and provided further, that upon the expiration of
such rights of conversion or exchange of such Convertible Securities,
if any thereof shall not have been exercised, the adjusted Purchase
Price per share shall forthwith be readjusted and thereafter be the
price which it would have been had an adjustment been made on the basis
that the only shares of Common Stock so issued or sold were issued or
sold upon the conversion or exchange of such Convertible Securities,
and that they were issued or sold for the consideration actually
received by the Company upon such conversion or exchange, plus the
consideration, if any, actually received by the Company for the issue
or sale of all of such Convertible Securities which shall have been
converted or exchanged.
7.3. RIGHTS AND OPTIONS. (a) In case the Company
shall grant any rights or options to subscribe for, purchase or
otherwise acquire Common Stock, other than Excluded Stock, there shall
be determined the price per share for which Common Stock is issuable
upon the exercise of such rights or options, such determination to be
made by dividing (i) the total amount, if any, received or receivable
by the Company as consideration for the granting of such rights or
options, plus the then current amount of additional consideration
payable to the Company upon the exercise of such rights or
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options, by (ii) the maximum number of shares of Common Stock of the
Company issuable upon the exercise of such rights or options.
(b) If the price per share so determined shall be less than the
applicable Purchase Price per share, then the granting of such rights
or options shall be deemed to be an issue or sale for cash (as of the
date of the granting of such rights or options) of such maximum number
of shares of Common Stock at the price per share so determined,
provided that, if such rights or options shall by their terms provide
for an increase or increases or decrease or decreases, with the passage
of time, in the amount of additional consideration payable to the
Company upon the exercise thereof, the adjusted Purchase Price per
share shall, forthwith upon any such increase or decrease becoming
effective, be readjusted to reflect the same, and provided, further,
that upon the expiration of such rights or options, if any thereof
shall not have been exercised, the adjusted Purchase Price per share
shall forthwith be readjusted and thereafter be the price which it
would have been had an adjustment been made on the basis that the only
shares of Common Stock so issued or sold were those issued or sold upon
the exercise of such rights or options and that they were issued or
sold for the consideration actually received by the Company upon such
exercise, plus the consideration, if any, actually received by the
Company for the granting of all such rights or options, whether or not
exercised.
7.4. OTHER SECURITIES. If any event occurs as to
which the provisions of this Warrant are strictly applicable and the
application thereof would not fairly protect the rights of the Holders
in accordance with the essential intent and principles of such
provisions, then the Company shall make such adjustments in the
application of such provisions, in accordance with such essential
intent and principles, as the Board of Directors, in good faith,
determines to be reasonably necessary to protect such rights as
aforesaid. In case at any time or from time to time the Company shall
take any action in respect of its Common Stock, other than any action
described in Sections 5, 6 and 7, then, unless such action will not
have a materially adverse effect upon the rights of the Holders, the
number of shares of Common Stock or other stock for which this Warrant
is exercisable and the Purchase Price per share shall be adjusted in
such manner as the Board of Directors, in good faith, determines to be
equitable in the circumstances. In furtherance and not in limitation of
the foregoing, if any event occurs of the type contemplated by Section
7 but not expressly provided for by such Section (including, without
limitation, the granting of stock appreciation rights, phantom stock
rights or other rights with equity features), then the Company's Board
of Directors shall make an appropriate adjustment in the Purchase Price
per share and the number of shares of Common Stock or Other Securities
issuable upon the exercise of a Warrant so as to protect the rights of
the Holders of such Warrants. No adjustment made pursuant to this
Section 7.4 shall increase the Purchase Price per share or decrease the
number of shares of Common Stock or Other Securities issuable upon
exercise of the Warrants.
8. FURTHER ASSURANCES. The Company will take all such action
as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and non-assessable shares of stock upon the exercise of
all Warrants from time to time outstanding.
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9. ACCOUNTANTS' CERTIFICATE AS TO ADJUSTMENTS. In each case of
any adjustment or readjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of the Warrants, the Company at its
expense will promptly cause the Company's regularly retained auditor to compute
such adjustment or readjustment in accordance with the terms of the Warrants and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based, and the
number of shares of Common Stock outstanding or deemed to be outstanding. The
Company will forthwith mail a copy of each such certificate to each Holder.
10. NOTICES OF RECORD DATE, ETC. In the event of
(a) any taking by the Company of a record of its
stockholders for the purpose of determining the stockholders
thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or for
the purpose of determining stockholders who are entitled to vote
in connection with any proposed capital reorganization of the
Company, any reclassification or recapitalization of the capital
stock of the Company or any transfer of all or substantially all
the assets of the Company to or consolidation or merger of the
Company with or into any other person, or
(b) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company, or
(c) any proposed issue or grant by the Company of any
shares of stock of any class or any other securities, or any
right or option to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities (other
than the issue of Common Stock on the exercise of the Warrants),
then and in each such event the Company will mail or cause to be
mailed to each Holder of a Warrant a notice specifying (i) the
date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution,
liquidation or winding-up is to take place, and the time, if
any, as of which the Holders of record of Underlying Securities
shall be entitled to exchange their shares of Underlying
Securities for securities or other property deliverable upon
such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or
other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed
issue or grant and the persons or class of persons to whom such
proposed issue or grant and the persons or class of persons to
whom such proposed issue or grant is to be offered or made. Such
notice shall be mailed at least 20 days prior to the date
therein specified.
11. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF
WARRANTS. The Company will at all times reserve and keep available, solely for
issuance and delivery upon the
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exercise of the Warrants, all shares of Common Stock (or Other Securities) from
time to time issuable upon the exercise of the Warrants.
12. LISTING ON SECURITIES EXCHANGES; REGISTRATION; ISSUANCE OF
CERTAIN SECURITIES.
12.1. In furtherance and not in limitation of any other
provision of this Warrant, if the Company at any time shall list any Common
Stock on any national securities exchange and shall register such Common Stock
under the Exchange Act, the Company will, at its expense, simultaneously list on
such exchange or Nasdaq, upon official notice of issuance upon the exercise of
the Warrants, and maintain such listing of all shares of Common Stock from time
to time issuable upon the exercise of the Warrants; and the Company will so list
on any national securities exchange or Nasdaq, will so register and will
maintain such listing of, any Other Securities if and at the time that any
securities of like class or similar type shall be listed on such national
securities exchange or Nasdaq by the Company.
12.2. The Company shall not issue any (a) Convertible
Securities or similar securities that contain a provision that provides for any
change or determination of the applicable conversion price, conversion rate, or
exercise price (or a similar provision which might have a similar effect) based
on the Fair Market Value or any other determination of the market price or value
of the Company's securities or any other market based or contingent standard,
(b) any preferred stock, debt instruments or similar securities or investment
instruments providing for (i) preferences or other payments substantially in
excess of the original investment by purchasers thereof or (ii) dividends,
interest or similar payments other than dividends, interest or similar payments
computed on an annual basis and not in excess, directly or indirectly, of a rate
equal to twice the interest rate on 10 year US Treasury Notes or (c) prior to
the receipt of the Stockholder Approval, any Common Stock, Convertible
Securities, options or other rights for consideration less than the Purchase
Price or take any other action which would have the effect of triggering an
adjustment in the Purchase Price as provided in Section 7 above.
13. EXCHANGE OF WARRANTS. Subject to the provisions of Section
2 hereof, upon surrender for exchange of any Warrant, properly endorsed, to the
Company, as soon as practicable (and in any event within three business days)
the Company at its own expense will issue and deliver to or upon the order of
the Holder thereof a new Warrant or Warrants of like tenor, in the name of such
Holder or as such Holder (upon payment by such Holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face or faces of the Warrant
or Warrants so surrendered.
14. REPLACEMENT OF WARRANTS. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, upon
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
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15. WARRANT AGENT. The Company may, by written notice to each
Holder of a Warrant, appoint an agent having an office in New York, New York,
for the purpose of issuing Common Stock (or Other Securities) upon the exercise
of the Warrants pursuant to Section 3, exchanging Warrants pursuant to Section
13, and replacing Warrants pursuant to Section 14, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall
be made at such office by such agent.
16. REMEDIES. The Company stipulates that the remedies at law
of the Holder of this Warrant in the event of any default or threatened default
by the Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
17. NEGOTIABILITY, ETC. Subject to Section 2 above, this
Warrant is issued upon the following terms, to all of which each Holder or owner
hereof by the taking hereof consents and agrees:
(a) subject to the provisions hereof, title to this
Warrant may be transferred by endorsement (by the Holder hereof
executing the form of assignment at the end hereof) and delivery
in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery;
(b) subject to the foregoing, any person in
possession of this Warrant properly endorsed is authorized to
represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery
hereof to a bona fide purchaser hereof for value; each prior
taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of each such bona fide purchaser
and each such bona fide purchaser shall acquire absolute title
hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of
the Company, the Company may treat the registered Holder hereof
as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary.
18. NOTICES, ETC. All notices and other communications from
the Company to the Holder of this Warrant shall be mailed by first class
registered or certified mail, postage prepaid, at such address as may have been
furnished to the Company in writing by such Holder, or, until an address is so
furnished, to and at the address of the last Holder of this Warrant who has so
furnished an address to the Company.
19. MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant is being delivered in the State of New
York and shall be construed and enforced in accordance with and
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governed by the laws of such State. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
20. ASSIGNABILITY. Subject to Section 2 hereof, this Warrant
is fully assignable at any time.
Dated: June __, 2003
TEGAL CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: TEGAL CORPORATION
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, shares of Common Stock of Tegal Corporation,
and herewith makes payment of $ * therefor, and requests that the certificates
for such shares be issued in the name of, and delivered to, , whose address is
Dated:
---------------------------------------------------
(Signature must conform in all respects to name
of Holder as specified on the face of the Warrant)
---------------------------------------------------
(Address)
* Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
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FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto _________________________ the right represented by the within Warrant to
purchase _________ of Common Stock of Tegal Corporation to which the within
Warrant relates, and appoints ______________________________ Attorney to
transfer such right on the books of Tegal Corporation with full power of
substitution in the premises. The Warrant being transferred hereby is one of the
Warrants issued by Tegal Corporation as of June __, 2003 to purchase an
aggregate of _________ shares of Common Stock.
Dated:
-------------------------------------------
(Signature must conform in all respects to
name of ▇▇▇▇▇▇ as specified on the face of
the Warrant)
-------------------------------------------
(Address)
------------------------------------
Signature guaranteed by a Bank
or Trust Company having its
principal office in New York City
or by a Member Firm of the New York
or American Stock Exchange
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