Exhibit 10.1
STOCK PURCHASE AGREEMENT
Trikon Technologies, Inc.
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Ladies & Gentlemen:
The undersigned, _______________ (the "Investor"), hereby confirms its
agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of April
16, 2002 between Trikon Technologies, Inc., a California corporation (the
"Company"), and the Investor.
2. The Company is offering up to 2,000,000 shares (the "Shares") of common stock
of the Company, no par value (the "Common Stock"), subject to adjustment by the
Company's Board of Directors, to certain investors in a private placement (the
"Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor __________ Shares,
for a purchase price of $11.50 per Share, or an aggregate purchase price of
______________, pursuant to the Terms and Conditions for Purchase of Shares
attached hereto as Annex I and incorporated herein by reference as if fully set
forth herein. Unless otherwise requested by the Investor, certificates
representing the Shares purchased by the Investor will be registered in the
Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
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"INVESTOR"
By:
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Print Name:
Title:
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Address:
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email:_________________________________
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name:
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Telephone:
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Name in which shares should be registered
(if different):
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Tax ID No.:
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Address where shares should be sent (if different)
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AGREED AND ACCEPTED:
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TRIKON TECHNOLOGIES, INC.
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company is offering 2,000,000 shares of Common
Stock (the "Shares). The Company reserves the right to increase or decrease the
number of Shares it is offering.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
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2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions hereinafter set forth, the number of Shares set forth on
the signature page hereto at the purchase price set forth on such signature
page.
2.2 The Company is entering into this same form of Stock
Purchase Agreement with certain other investors (the "Other Investors")
effective as of the date hereof (the "Subscription Date") and expects to
complete sales of Shares to them. (The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements.")
3. Delivery of the Shares at Closing. The completion of the purchase
and sale of the Shares (the "Closing") shall occur (the "Closing Date") on the
third business day after the Subscription Date (or upon such earlier date as the
Company and the Investors shall agree), at the offices of the Company's counsel.
At the Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor. The Company's obligation to issue the Shares to the
Investor shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of a wire transfer of
funds in the full amount of the purchase price for the Shares being purchased
hereunder as set forth on the signature page hereto; (b) completion of the
purchases and sales under the Agreements with the Other Investors; and (c) the
accuracy of the representations and warranties made by the Investors and the
fulfillment of those undertakings of the Investors to be fulfilled prior to the
Closing. The Investor's obligation to purchase the Shares shall be subject to
the following conditions, any one or more of which may be waived by the
Investor: (a) receipt by the Investor of one or more stock certificates
representing the number of Shares set forth on the signature page hereto; (b)
receipt by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the
Investors ("Investors' Counsel"), of an opinion letter, dated as of the Closing
Date, from ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to the Company, in form, scope and
substance satisfactory to Investors' Counsel and in substantially the form
attached hereto as Exhibit A; (c) receipt by Investors' Counsel of an opinion
letter, dated as of the Closing Date, from ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, patent
counsel to the Company, in form, scope and substance satisfactory to Investors'
Counsel; (d) the accuracy of the representations and warranties made by the
Company as of the Closing Date and the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing; (e) on the Closing Date, no legal
action, suit or proceeding shall be pending or threatened which seeks to
restrain or prohibit the transactions contemplated by the Agreements; (f) the
Company shall have delivered to the Investor's Counsel its certificate, dated
the Closing Date, duly executed by its Chief Executive Officer to the effect set
forth in clause (d) above; (g) the Company shall have delivered to Investors'
Counsel its certificate, dated the Closing Date, duly executed by its Secretary,
certifying as to (i) the Company's Articles of Incorporation and (ii) the
Company's By-Laws, each as in effect as of the Closing Date, and (iii) all
resolutions, votes or minutes of the Company's Board of Directors in connection
with the Offering; (h) the Company shall have delivered to Investors' Counsel
certified copies of certificates evidencing the incorporation and goodstanding
of the Company and each Subsidiary (as defined in Section 4.1 below) in each
such entity's state or jurisdiction of incorporation or organization as of a
date within ten (10) days of the Closing Date; (i) receipt by Investors' Counsel
of such other documents or certificates relating to the Offering as Investors'
Counsel may reasonably request.
4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Investor,
as follows:
4.1 Subsidiaries; Organization. The Company has no
subsidiaries (as defined by Rule 405 under the Securities Act of 1933, as
amended (the "Securities Act")) except as set forth in Exhibit 21 to its Annual
Report on Form 10-K for the fiscal year ended December 31, 2001 (the
"Subsidiaries"). The Company and each of its Subsidiaries is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization. The Company and each of its Subsidiaries has full
power and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and is registered or qualified to do business
and in good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries taken as a whole, and no
proceeding has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
4.2 Due Authorization. The Company has all requisite power and
authority to execute, deliver and perform its obligations under the Agreements,
and the Agreements have been duly authorized and validly executed and delivered
by the Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.3 Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company under
the Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict with
or constitute a violation of, or default (with or without the giving of notice
or the passage of time or both) under, (i) any material bond, debenture, note or
other evidence of indebtedness, or under any material lease, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company is a party or by which it or its properties are
bound, (ii) the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries, or (iii) any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration panel or
authority applicable to the Company, any of its Subsidiaries or their respective
properties, or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any of its Subsidiaries or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to which
any of the property or assets of the Company or any of its Subsidiaries is
subject. No consent, approval, authorization or other order of, or registration,
qualification or filing with, any regulatory body, administrative agency,
self-regulatory organization, stock exchange or market, or other governmental
body in the United States is required for the execution and delivery of the
Agreements and the valid issuance and sale of the Shares to be sold pursuant to
the Agreements, other than such as have been made or obtained, and except for
any securities filings required to be made under federal or state securities
laws.
4.4 Reporting Status. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the 12 months
preceding the date of this Agreement. The following documents complied in all
material respects with the SEC's requirements as of their respective filing
dates, and the information contained therein as of the date thereof did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under where they were made not misleading, except to
the extent that information contained in any such document has been revised or
superseded by a later filed SEC Document (as defined below):
(i) The Company's Proxy Statement for the 2001 Annual
Meeting of Stockholders (the "Proxy Statement");
(i) The Company's Annual Report on Form 10-K for the year
ended December 31, 2001 including the exhibits thereto
(the "Form 10-K"); and
(iii) all other documents, including the exhibits thereto,
filed by the Company with the SEC since December 31,
2001 pursuant to the reporting requirements of the
Exchange Act (together with the Proxy Statement and the
Form 10-K, the "SEC Documents").
The SEC Documents as of the date of their respective filings
with the SEC, did not contain an untrue statement of a material fact or omit 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.
4.5 Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 70,000,000 shares of capital stock, of
which 50,000,000 shares are designated Common Stock and 20,000,000 shares are
designated Preferred Stock. As of March 13, 2002, there were approximately
12,890,021 shares of Common Stock issued and outstanding, and no shares of
Preferred Stock issued and outstanding. As of March 13, 2002, an aggregate of
2,400,000 shares of Common Stock were reserved for issuance under the Company's
1991 Stock Option Plan and the 1998 Non-Employee Directors Stock Option Plan,
including 958,339 shares issuable upon exercise of outstanding stock options
issued by the Company to employees, consultants and directors of the Company,
and 92,593 shares of Common Stock reserved for issuance upon exercise of
warrants issued by the Company. No other shares or options, warrants or other
rights to acquire shares of capital stock of the Company or securities
convertible into capital stock of the Company are outstanding. All outstanding
shares of Common Stock are duly authorized, validly issued, fully paid and
nonassessable, free from any liens or any other encumbrances created by the
Company with respect to the issuance and delivery thereof and not subject to
preemptive rights. Other than as disclosed in the SEC Documents, except as set
forth above, there are no outstanding rights, options, warrants, preemptive
rights, rights of first refusal agreements, commitments or similar rights for
the purchase or acquisition from the Company or any of its Subsidiaries of any
securities of the Company or any of its Subsidiaries. The Shares to be sold
pursuant to the Agreements have been duly authorized, and when issued and paid
for in accordance with the terms of the Agreements will be duly and validly
issued, fully paid and nonassessable, free and clear of all pledges, liens,
encumbrances and other restrictions (other than those arising under federal or
state securities laws as a result of the private placement of the Shares to the
Investors). No preemptive right, co-sale right, right of first refusal or other
similar right exists with respect to the Shares or the issuance and sale
thereof. No further approval or authorization of any stockholder, the Board of
Directors of the Company or others is required for the issuance and sale of the
Shares. Except as set forth in the SEC Documents, no holder of any of the
securities of the Company has any rights ("demand," "piggyback" or otherwise) to
have such securities registered by reason of the intention to file, filing or
effectiveness of a Registration Statement (as defined in Section 7.1 hereof).
4.6 Legal Proceedings. There is no material legal or
governmental proceeding pending or, to the knowledge of the Company or any of
its Subsidiaries, threatened to which the Company or any of its Subsidiaries or
any of their respective officers or directors in their capacity as such officer
or director is or may be a party or of which the business or property of the
Company or any of its Subsidiaries is subject that is not disclosed in the SEC
Documents. There is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body (including, without limitation, the SEC)
pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened against or affecting the Company wherein an unfavorable decision,
ruling or finding could adversely affect the validity or enforceability of, or
the authority or ability of the Company to perform its obligations under the
Agreements.
4.7 No Violations. Neither the Company nor any of its
Subsidiaries is in violation of its charter, bylaws, or other organizational
document, or in violation of any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority
applicable to the Company or any of its Subsidiaries, which violation,
individually or in the aggregate, would be reasonably likely to have a material
adverse effect on the business, operations, assets or prospects or financial
condition of the Company and its Subsidiaries taken as a whole, or in default
(and there exists no condition which, with or without the passage of time or
giving of notice or both, would constitute a default) in any material respect in
the performance of any bond, debenture, note or any other evidence of
indebtedness in any indenture, mortgage, deed of trust or any other material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or by which
the properties of the Company are bound, which would be reasonably likely to
have a material adverse effect upon the business, operations, assets or
prospects or financial condition of the Company and its Subsidiaries taken as a
whole.
4.8 Governmental Permits, Etc. The Company and its
Subsidiaries possess all necessary franchises, licenses, certificates and other
authorizations from any foreign, federal, state or local government or
governmental agency, department, or body that are currently necessary for the
operation of their respective business as currently conducted, except where the
failure to currently possess could not reasonably be expected to have a material
adverse effect upon the business, operations, assets or prospects or financial
condition of the Company and its Subsidiaries taken as a whole.
4.9 Intellectual Property. The Company and its Subsidiaries
own or possess sufficient rights to use all patents, patent rights, trademarks,
copyrights, licenses, inventions, trade secrets, trade names and know-how
(collectively, "Intellectual Property") that are necessary for the conduct of
their respective businesses as now conducted except where the failure to
currently own or possess would not have a material adverse effect on the
financial condition or business of the Company and its Subsidiaries taken as a
whole. Except as set forth in the SEC Documents, (i) neither the Company nor any
of its Subsidiaries has received any notice of, or has any knowledge of, any
infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries taken as a whole and
(ii) neither the Company nor any of its Subsidiaries has received any notice of
any infringement rights by a third party with respect to any Intellectual
Property that, individually or in the aggregate, would have a material adverse
effect upon the business, operations, assets or prospects or financial condition
of the Company and its Subsidiaries taken as whole.
4.10 Financial Statements. The consolidated financial
statements of the Company and its Subsidiaries and the related notes thereto
included in the SEC Documents present fairly, in accordance with the rules and
regulations of the SEC, the financial position of the Company as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified. Except as set forth in such financial statements, such
financial statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified.
4.11 No Material Adverse Change. Except as publicly disclosed
in the SEC Documents, press releases or in other "public disclosures" as such
term is defined in Section 101(e) of Regulation FD of the Exchange Act, since
December 31, 2001 there has not been (i) any material adverse change in the
financial condition, earnings or prospects of the Company or any of its
Subsidiaries nor has any material adverse event occurred to the Company or any
of its Subsidiaries (it being understood that the Company has incurred operating
losses), (ii) any obligation, direct or contingent, that is material to the
Company and its Subsidiaries taken as a whole, incurred by the Company or any of
its Subsidiaries, except obligations incurred in the ordinary course of
business, (iii) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company, or (iv) any loss or damage (whether or not
insured) to the physical property of the Company or any of its Subsidiaries
which has been sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company and its Subsidiaries taken as a whole. Except as publicly
disclosed in the SEC Documents, press releases or in other "public disclosures"
as such term is defined in Section 101(e) of Regulation FD of the Exchange Act,
since December 31, 2001, neither the Company nor any of its Subsidiaries has (i)
sold, assigned, transferred, abandoned, mortgaged, pledged or subjected to lien
any of its material properties, tangible or intangible, or rights under any
material contract, permit, license, franchise or other agreement or (ii) waived
or cancelled any indebtedness or other obligations owed to the Company or any of
its Subsidiaries.
4.12 NASDAQ Listing. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor to the Company's knowledge is the
National Association of Securities Dealers, Inc. ("NASD") currently
contemplating terminating such listing. The Company and the Common Stock meet
the criteria for continued listing and trading on the Nasdaq National Market.
4.13 Listing of the Shares. The Company shall comply with all
requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the Nasdaq
National Market. In furtherance thereof, the Company shall use its commercially
reasonable efforts to take such actions as may be necessary and as soon as
practicable and in no event later than 20 days after the Closing Date to file
with the Nasdaq National Market an application or other document required by the
Nasdaq National Market and pay all applicable fees for the listing of the Shares
with the Nasdaq National Market and shall provide evidence of such filing to the
Investors. The Company knows of no reason why the Shares will not be eligible
for listing on the Nasdaq National Market.
4.14 No Manipulation of Stock. The Company has not taken and
will not, in violation of applicable law, take, any action designed to or that
might reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the Shares.
4.15 S-3 Status. The Company meets the requirements for the
use of Form S-3 for the registration of the resale of the Shares by the
Investors and will use its best efforts to maintain S-3 status with the SEC
during the Registration Period (as defined in Section 7.1(c)).
4.16 Insurance. The Company and each of its Subsidiaries
maintains and will continue to maintain insurance against loss or damage by fire
or other casualty and such other insurance, including, but not limited to,
product liability insurance, in such amounts and covering such risks as is
reasonably adequate consistent with industry practice for the conduct of their
respective businesses and the value of their respective properties.
4.17 Tax Matters. The Company and each of its Subsidiaries has
filed all material federal, state, local and foreign income and franchise and
other tax returns required to be filed by any jurisdiction to which it is
subject and has paid all taxes due in accordance therewith, and no tax
deficiency has been determined adversely to the Company or any of its
Subsidiaries which has had (nor does the Company or any of its Subsidiaries have
any knowledge of any tax deficiency which, if determined adversely to the
Company or any of its Subsidiaries, would reasonably be expected to have) a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
4.18 Investment Company. The Company is not an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the SEC thereunder.
4.19 No Registration. Assuming the accuracy of the
representations and warranties made by, and compliance with the covenants of,
the Investors in Section 5 hereof, no registration of the Shares under the
Securities Act is required in connection with the offer and sale of the Shares
by the Company to the Investors as contemplated by the Agreements.
4.20 Internal Accounting Controls. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient, in
the judgment of the Company's board of directors, to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of consolidated financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
4.21 Form D. The Company agrees to file one or more Forms D
with respect to the Shares on a timely basis as required under Regulation D
under the Securities Act to claim the exemption provided by Rule 506 of
Regulation D and to provide a copy thereof to the Investors and their counsel
promptly after such filing.
4.22 Certain Future Financings and Related Actions.
(a) The Company will not sell, offer to sell,
solicit offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Securities Act) that is or could be integrated with the sale of
the Shares in a manner that would require the registration of the Shares under
the Securities Act.
(b) The Company shall not offer, sell,
contract to sell or issue (or engage any person to assist the Company in taking
any such action) any equity securities or securities convertible into,
exchangeable for or otherwise entitling the holder to acquire, any Common Stock
at a price below the market price of the Common Stock during the period from the
date of this Agreement to the effective date of the Registration Statement;
provided, however, that nothing in this Section 4.22(b) shall prohibit the
Company from issuing securities (v) to employees, directors, officers, advisors
or consultants of the Company or any of its Subsidiaries; (w) upon exercise of
conversion, exchange, purchase or similar rights issued, granted or given by the
Company and outstanding as of the date of this Agreement; (x) pursuant to a
public offering underwritten on a firm commitment basis registered under the
Securities Act; (y) for the purpose of funding the acquisition of securities or
assets of any entity in a single transaction or a series of related
transactions; or (z) pursuant to a strategic partnership or alliance agreement,
loan agreement, equipment lease or similar commercial agreement (including
licensing and similar arrangements).
4.23 Use of Proceeds. The Company will use the net proceeds
from the sale of the Shares for working capital and general corporate purposes,
including, without limitation, expenditures associated with expanding the
Company's research and development effort and augmenting the Company's customer
service and support capabilities.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants
with, the Company that: (i) the Investor is an "accredited investor" as defined
in Regulation D under the Securities Act and the Investor has the knowledge,
sophistication and experience necessary to make, and is qualified to make
decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company and investments in comparable companies, and
has requested, received, reviewed and considered all information it deemed
relevant in making an informed decision to purchase the Shares; (ii) the
Investor is acquiring the number of Shares set forth on the signature page
hereto for its own account for investment only and with no present intention of
distributing any of such Shares in violation of the Securities Act nor does the
Investor have any arrangement or understanding with any other persons regarding
the distribution of such Shares; (iii) the Investor will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (iv) the
Investor has filled in all requested information on the signature page hereto
for use in preparation of the Registration Statement and the answers thereto are
true and correct as of the date hereof and will be true and correct as of the
Closing Date; (v) the Investor will notify the Company promptly of any change in
any of such information until such time as the Investor has sold all of its
Shares or until the Company is no longer required to keep the Registration
Statement effective; and (vi) the Investor has, in connection with its decision
to purchase the number of Shares set forth on the signature page hereto, relied
only upon the SEC Documents, other publicly available information and the
representations and warranties of the Company contained herein. The Investor
understands that its acquisition of the Shares has not been registered under the
Securities Act or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor's investment intent as
expressed herein.
5.2 The Investor acknowledges that the Company has represented
that no action has been or will be taken in any jurisdiction outside the United
States by the Company that would permit an offering of the Shares, or possession
or distribution of offering materials in connection with the issue of the
Shares, in any jurisdiction outside the United States where action for that
purpose is required. If the Investor is located or domiciled outside the United
States it agrees to comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Shares or
has in its possession or distributes any offering material, in all cases at its
own expense.
5.3 The Investor hereby covenants with the Company not to make
any sale of the Shares without complying with the provisions of this Agreement,
including Section 7.2 hereof and, without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied, if applicable,
and the Investor acknowledges that the certificates evidencing the Shares will
be imprinted with a legend that prohibits their transfer except in accordance
therewith. The Investor acknowledges that there may occasionally be times when
the Company, based on the advice of its counsel, determines that, subject to the
limitations of Section 7.2, it must suspend the use of the Prospectus forming a
part of the Registration Statement until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the SEC or until the Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and
covenants with, the Company that (i) the Investor has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement and (ii) this
Agreement constitutes a valid and binding obligation of the Investor enforceable
against the Investor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification and contribution agreements
of the Investors herein may be legally unenforceable.
5.5 The Investor will not, prior to the effectiveness of the
Registration Statement, sell, offer to sell, solicit offers to buy, dispose of,
loan, pledge or grant any right with respect to (collectively, a "Disposition"),
the Common Stock of the Company in violation of the Securities Act, nor will
Investor engage in any hedging or other transaction which is designed to or
could reasonably be expected to lead to or result in a Disposition of Common
Stock of the Company by the Investor or any other person or entity in violation
of the Securities Act. Such prohibited hedging or other transactions would
include without limitation effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including without limitation any put or call option) with
respect to the Common Stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or
any other materials presented to the Investor in connection with the purchase
and sale of the Shares constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Shares.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to the Investor of the Shares being purchased and the payment therefor.
7. Registration of the Shares; Compliance with the Securities Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information
from the Investors, use commercially reasonable efforts to prepare and file with
the SEC, as soon as reasonably practicable but in any event within 30 days after
the Closing Date, a registration statement (the "Registration Statement") on
Form S-3 to enable the resale of the Registrable Shares (as defined below) by
the Investors on a delayed or continuous basis under Rule 415 of the Securities
Act. "Registrable Shares" means (a) all shares of Common Stock purchased in the
Offering and (b) Penalty Shares (as defined below), if any;
(b) use commercially reasonable efforts,
subject to receipt of necessary information from the Investors, to cause the
Registration Statement to become effective as soon as reasonably practicable but
in any event within 120 days after the Closing Date (with respect to this
Section 7.1(b), the term "commercially reasonable efforts" shall mean that the
Company shall submit to the SEC, within two business days after the Company
learns that no review of the Registration Statement will be made by the staff of
the SEC or that the staff has no further comments on the Registration Statement,
as the case may be, a request for acceleration of effectiveness of the
Registration Statement to a time and date not later than 48 hours after the
submission of such request);
(c) use commercially reasonable efforts to
prepare and file with the SEC such amendments and supplements to the
Registration Statement and the Prospectus used in connection therewith and take
all such other actions as may be necessary to keep the Registration Statement
current and effective for a period (the "Registration Period") not exceeding,
with respect to each Investor's Registrable Shares, the earlier of (i) the
second anniversary of the Closing Date, (ii) the date on which the Investor may
sell all Shares then held by the Investor without restriction by the volume
limitations of Rule 144(e) of the Securities Act, and (iii) such time as all
Registrable Shares held by such Investor have been sold (A) pursuant to a
registration statement, (B) to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, and/or (C) in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale.
(d) promptly furnish to the Investor with
respect to the Shares registered under the Registration Statement such number of
copies of the Registration Statement, Prospectuses and Preliminary Prospectuses
in conformity with the requirements of the Securities Act and such other
documents as the Investor may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares by the Investor;
(e) promptly take such action as may be
necessary to qualify, or obtain, an exemption for the Registrable Shares under
such of the state securities laws of United States jurisdictions as shall be
necessary to qualify, or obtain an exemption for, the sale of the Registrable
Shares in states specified in writing by the Investor; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented;
(f) bear all expenses in connection with the
procedures in paragraph (a) through (e) of this Section 7.1 and the registration
of the Shares pursuant to the Registration Statement, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made with the
NASD); (ii) fees and expenses of compliance with federal securities and state
"blue sky" or securities laws; (iii) expenses of printing (including printing
certificates for the Registrable Securities and Prospectuses), messenger and
delivery services and telephone; (iv) all application and filing fees in
connection with listing the Registrable Securities on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(v) all fees and disbursements of counsel of the Company and independent
certified public accountants of the Company (including the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance); provided, however, that each Investor shall be responsible for
paying the underwriting commissions or brokerage fees, and taxes of any kind
(including, without limitation, transfer taxes) applicable to any disposition,
sale or transfer of such Investor's Registrable Securities. The Company shall,
in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, rating agency fees and the
fees and expenses of any person, including special experts, retained by the
Company;
(g) advise the Investors, within two business
days by e-mail, fax or other type of communication, and, if requested by such
person, confirm such advice in writing: (i) after it shall receive notice or
obtain knowledge of the issuance of any stop order by the SEC delaying or
suspending the effectiveness of the Registration Statement or of the initiation
or threat of any proceeding for that purpose, or any other order issued by any
state securities commission or other regulatory authority suspending the
qualification or exemption from qualification of such Registrable Securities
under state securities or "blue sky" laws; and it will promptly use its best
efforts to prevent the issuance of any stop order or other order or to obtain
its withdrawal at the earliest possible moment if such stop order or other order
should be issued; and (ii) when the Prospectus or any Prospectus Supplement or
post-effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment thereto, when the same has become
effective.;
(h) otherwise use commercially reasonable
efforts to comply with all applicable rules and regulations of the SEC;
(i) use commercially reasonable efforts to
cause all Registrable Shares to be listed on each securities exchange or market,
if any, on which equity securities issued by the Company are then listed; and
(j) use commercially reasonable efforts to
take all other steps necessary to effect the registration of the Registrable
Shares contemplated hereby and to enable the Investors to sell the Shares under
Rule 144.
(k) The Company further agrees that, in the
event that the Registration Statement has not (i) been filed with the SEC within
30 days after the Closing Date or (ii) been declared effective by the SEC within
120 days after the Closing Date, unless the failure to become effective is due
to the fault of one or more Investors (each such event referred to in clauses
(i) and (ii), a "Registration Default"), for all or part of each 30-day period
(a "Penalty Period") during which the Registration Default remains uncured, the
Company shall issue or pay, as applicable, to each Investor 1% for each Penalty
Period of the aggregate purchase price paid by the Investor for its Shares,
payable in validly issued, fully paid and nonassessable shares of Common Stock
(valued at the average of the closing price of the Common Stock for the three
trading days ending on the last trading day of such Penalty Period) (the
"Penalty Shares") or cash, at the option of the Company; provided, that if the
issuance of Penalty Shares by the Company would result in the Company being
required under NASDAQ rules or other applicable rules to obtain the approval of
the Company's stockholders, then the Company shall pay cash rather than issue
such Penalty Shares to the extent needed to avoid such stockholder approval. The
Company shall deliver said shares or cash payment to the Investor by the fifth
business day after the end of each such Penalty Period. Notwithstanding anything
to the contrary in Section 7.3 or any other provision of this Agreement, the
issuance of the Penalty Shares or cash as provided in this Section 7.1(k) shall
be the Investor's sole and exclusive remedy in the event of any Registration
Default; provided, however, that if the foregoing remedy is deemed unenforceable
by a court of competent jurisdiction then the Investor shall have all other
remedies available at law or in equity.
7.2 Transfer of Shares; Suspension.
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(a) The Investor agrees that it will not
effect any Disposition of the Shares or its right to purchase the Shares that
would constitute a sale within the meaning of the Securities Act except as
contemplated in the Registration Statement referred to in Section 7.1 and as
described below or otherwise in accordance with the Securities Act, and that it
will promptly notify the Company of any changes in the information set forth in
the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c)
below applies, the Company shall, at all times during the Registration Period,
promptly (i) prepare and file from time to time with the SEC a post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that such Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and so that, as thereafter delivered to
purchasers of the Shares being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit 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; (ii) provide the
Investor copies of any documents filed pursuant to Section 7.2(b)(i); and (iii)
inform each Investor that the Company has complied with its obligations in
Section 7.2(b)(i) (or that, if the Company has filed a post-effective amendment
to the Registration Statement which has not yet been declared effective, the
Company will notify the Investor to that effect, will use its commercially
reasonable efforts to secure the effectiveness of such post-effective amendment
as promptly as possible and will promptly notify the Investor pursuant to
Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the
event (i) of any request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information; (ii) of the issuance by the SEC or any other federal
or state governmental authority of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose; (iii) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or (iv) of any event or
circumstance which necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall deliver a notice in writing to
the Investor (the "Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, the Investor will refrain from selling any
Registrable Shares pursuant to the Registration Statement (a "Suspension") until
the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such Prospectus. In the event of any Suspension, the Company
will use its commercially reasonable efforts, consistent with the best interests
of the Company and its stockholders, to cause the use of the Prospectus so
suspended to be resumed as soon as reasonably practicable after the delivery of
a Suspension Notice to the Investor. In addition to and without limiting any
other remedies (including, without limitation, at law or at equity) available to
the Investor, the Investor shall be entitled to specific performance in the
event that the Company fails to comply with the provisions of this Section
7.2(c).
(d) Notwithstanding the foregoing paragraphs
of this Section 7.2, the Investor shall not be prohibited from selling
Registrable Shares under the Registration Statement as a result of Suspensions
on more than two occasions (for two separate suspension events) of not more than
45 days each in any twelve month period. If the Investor is prohibited from
selling Registrable Shares under the Registration Statement as a result of
Suspensions on more than two occasions in any twelve-month period or for more
than 45 days on any one occasion, it shall be deemed a Registration Default, and
the Company shall issue Penalty Shares or cash, as the case may be, in
accordance with the provisions of Section 7.1(k) based on the aggregate purchase
price of the Registrable Shares that have not been previously sold by the
Investor.
(e) Provided that a Suspension is not then in
effect, the Investor may sell Registrable Shares under the Registration
Statement, provided that it arranges for delivery of a current Prospectus to the
transferee of such Shares. Upon receipt of a request therefor, the Company has
agreed to provide, at its own expense, an adequate number of current
Prospectuses (including documents incorporated by reference therein) to the
Investor and to supply copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Registrable
Shares by the Investor under the Registration Statement, the Investor must also
deliver to the Company's transfer agent, with a copy to the Company, a
Certificate of Subsequent Sale substantially in the form attached hereto as
Exhibit B, so that the Registrable Shares may be properly transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the Investor
and any person controlling such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include (1) any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein not misleading and (2) any
untrue statement or alleged untrue statement, or any omission or alleged
omission to state in the Prospectus a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold
harmless each Selling Stockholder from and against any losses, claims, damages,
liabilities or expenses to which such Selling Stockholder may become subject
(under the Securities Act or otherwise) insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of, or are based upon (i) any untrue statement of a material fact contained in
the Registration Statement or Prospectus, (ii) any failure by the Company to
fulfill any undertaking included in the Registration Statement, (iii) any breach
of any representation, warranty or covenant made by the Company in this
Agreement and (iv) any violation or alleged violation of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities, and the Company will promptly reimburse such Selling
Stockholder for any reasonable legal or other expenses incurred in
investigating, defending or preparing to defend, settling, compromising or
paying any such action, proceeding or claim, provided, however, that the Company
shall not be liable in any such case to the extent that such loss, claim,
damage, liability or expense arises solely out of, or is based solely upon, an
untrue statement made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder specifically for use in preparation of the Registration Statement or
the failure of such Selling Stockholder to comply with its covenants and
agreements contained in Sections 5.3 or 7.2 hereof respecting sale of the Shares
or any statement or omission in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Investor at least three business
days prior to the pertinent sale or sales by the Investor. Notwithstanding the
foregoing, the Company shall not be liable to any Selling Stockholder for any
consequential damages, including lost profits, solely with respect to losses,
claims, damages, liabilities or expenses to which such Selling Stockholder may
become subject arising out of, or based upon, any breach of any representation,
warranty or covenant made by the Company in this Agreement.
(b) The Investor agrees (severally and not
jointly with any other Investor) to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages, liabilities or expenses to which the Company (or any such officer,
director or controlling person) may become subject (under the Securities Act or
otherwise), insofar as such losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) arise solely out of, or are based
solely upon, (i) any failure to comply with the covenants and agreements
contained in Section 5.3 or 7.2 hereof respecting sale of the Shares, (ii) any
untrue statement of a material fact contained in the Registration Statement if
such untrue statement was made in reliance upon and in conformity with written
information furnished by the Investor specifically for use in preparation of the
Registration Statement (provided, however, that no Investor shall be liable in
any such case for any untrue statement in any Registration Statement or
Prospectus if such statement has been corrected in writing by such Investor and
delivered to the Company at least three business days prior to the pertinent
sale or sales by the Investor) or (iii) any violation or alleged violation by
the Investor of the Securities Act, the Exchange Act, any other law, including,
without limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities, and the
Investor will reimburse the Company (or such officer, director or controlling
person), as the case may be, for any legal or other expenses reasonably incurred
in investigating, defending or preparing to defend, settling, compromising or
paying any such action, proceeding or claim. Notwithstanding the foregoing, (x)
the Investor's aggregate liability pursuant to this subsection (b) and
subsection (d) shall be limited to the net amount received by the Investor from
the sale of the Shares and (y) the Investor shall not be liable to the Company
for any consequential damages, including lost profits, solely with respect to
losses, claims, damages, liabilities or expenses to which the Company (or any
officer, director or controlling person as set forth above) may become subject
(under the Securities Act or otherwise), arising out of, or based upon, any
failure to comply with the covenants and agreements contained in Section 5.3 or
7.2 hereof respecting sale of the Shares.
(c) Promptly after receipt by any indemnified
person of a notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.3, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, but the omission to
so notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party under this Section 7.3 (except to the extent
that such omission materially and adversely affects the indemnifying party's
ability to defend such action) or from any liability otherwise than under this
Section 7.3. Subject to the provisions hereinafter stated, in case any such
action shall be brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that it shall elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such indemnified person of
its election to assume the defense thereof, such indemnifying person shall not
be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof,
provided further, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate, in the opinion of counsel to the
indemnified person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense of
such indemnifying person; provided, however, that no indemnifying person shall
be responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) for all indemnified parties. In no
event shall any indemnifying person be liable in respect of any amounts paid in
settlement of any action unless the indemnifying person shall have approved the
terms of such settlement; provided that such consent shall not be unreasonably
withheld. No indemnifying person shall, without the prior written consent of the
indemnified person, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified person is or could have been a
party and indemnification could have been sought hereunder by such indemnified
person, unless such settlement includes an unconditional release of such
indemnified person from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in
this Section 7.3 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Investor on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, in the case of an untrue statement, whether
the untrue statement relates to information supplied by the Company on the one
hand or an Investor on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement. The Company and the Investors agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Investors were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Investor shall be required to contribute any amount in excess
of the net amount received by the Investor from the sale of the Shares. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Investors'
obligations in this subsection to contribute are several in proportion to their
sales of Shares to which such loss relates and not joint.
(e) The parties to this Agreement hereby
acknowledge that they are sophisticated business persons who were represented by
counsel during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7.3, and are fully informed
regarding said provisions.
7.4 Rule 144. For a period of two years following the
date hereof, the Company agrees with each holder of Registrable Shares to:
comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company; and
file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time it is subject to such reporting requirements).
7.5 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon Dispositions of the
Registrable Shares by the Investor shall cease and terminate as to any
particular number of the Registrable Shares and the restrictive legend shall be
removed when such Registrable Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance with
the intended method of disposition set forth in the Registration Statement
covering such Registrable Shares or at such time as an opinion of counsel
reasonably satisfactory to the Company shall have been rendered to the effect
that such conditions are not necessary in order to comply with the Securities
Act (provided that such opinion shall not be required if the Company shall be
furnished with written documentation reasonably satisfactory to it that such
Registrable Shares are being transferred in a customary transaction exempt from
registration under Rule 144 under the Securities Act).
8. Notices. Except as specifically permitted by Section 7.1(g), all
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
Trikon Technologies, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Tel: ▇▇▇-▇▇▇-▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as
may have been furnished to the Company in writing.
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
9. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
11. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of law.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements relating to such subject matter are
expressly cancelled.
14. Finders Fees. Neither the Company nor the Investor nor any
affiliate thereof has incurred any obligation which will result in the
obligation of the other party to pay any finder's fee or commission in
connection with this transaction, except for fees payable by the Company to
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
16. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of the Company and
the Investors, including without limitation and without the need for an express
assignment, affiliates of the Investors. With respect to transfers that are not
made pursuant to the Registration Statement, the rights and obligations of an
Investor under this Agreement shall be automatically assigned by such Investor
to any transferee of all or any portion of such Investor's Registrable Shares
who is a Permitted Transferee (as defined below); provided, however, that within
two business days prior to the transfer, (i) the Company is provided notice of
the transfer including the name and address of the transferee and the number of
Registrable Shares transferred; and (ii) that such transferee agrees in writing
to be bound by the terms of this Agreement. (For purposes of this "Agreement, a
"Permitted Transferee" shall mean any Person who (a) is an "accredited
investor," as that term is defined in Rule 501(a) of Regulation D under the
Securities Act and (b) is a transferee of at least 20,000 Registrable Shares as
permitted under the securities laws of the United States). Upon any transfer
permitted by this Section 16, the Company shall be obligated to such transferee
to perform all of its covenants under this Agreement as if such transferee were
an Investor.
17. Expenses. Each of the Company and the Investors shall bear its own
expenses in connection with the preparation and negotiation of the Agreement,
except that the Company shall be repsonsible for payment the fees and expenses
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. incurred in connection
with the preparation and negotiation of this Agreement.
Schedule of Investors
The principal differences between the Stock Purchase Agreements
executed by the Company and the Form of Stock Purchase Agreement attached hereto
as Exhibit 10.1 are that the executed Stock Purchase Agreements contained the
name of each investor, the number of shares of common stock purchased by each
such investor and the aggregate purchase price. All such information is set
forth below:
Name of Investor Number of Shares Purchased Total Purchase Price
---------------- -------------------------- --------------------
Alpha Capital AG 60,870 $700,000
Amaranth L.L.C 150,000 $1,725,000
▇▇▇▇ Emerging Growth Fund 150,000 $1,725,000
Radyr Investments Ltd. 75,000 $862,500
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LP 300,000 $3,450,000
SDS Merchant Fund, L.P. 70,000 $805,000
Spinner Global Technology Fund, Ltd. 49,000 $563,500
▇▇▇▇▇▇▇▇▇▇▇ Limited Partnership 43,478 $500,000
Vertical International Limited 120,000 1,380,000
Vertical Venture Investments, LLC 75,000 $862,500