1
EXHIBIT 4.3
INTEVAC, INC.
6 1/2 % CONVERTIBLE SUBORDINATED NOTES DUE 2004
REGISTRATION AGREEMENT
New York, New York
February 15, 1997
SALOMON BROTHERS INC
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & COMPANY LLC
c/o Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Intevac, Inc., a California corporation (the "Company"), proposes to
issue and sell (such issuance and sale, the "Initial Placement") to you (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement dated
February 20, 1997 (the "Purchase Agreement"), $50,000,000 principal amount
(plus an additional $7,500,000 principal amount to cover over-allotments, if
any) of its 6 1/2% Convertible Subordinated Notes due 2004 (the "Securities").
The Securities will be convertible into shares of Common Stock, no par value
(the "Common Stock"), of the Company at the conversion price set forth in the
Final Memorandum. As an inducement to you to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, the Company
agrees with you, (i) for your benefit and (ii) for the benefit of the holders
from time to time of the Securities or the Common Stock issuable upon
conversion of the Securities (including you) (each of the foregoing, a "Holder"
and together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
2
"Business Day" means any day that is neither a Saturday or a
Sunday nor a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Damages Accrual Period" has the meaning set forth in Section
2(c) hereof.
"Damages Payment Date" has the meaning set forth in Section
2(c) hereof.
"Event" has the meaning set forth in Section 2(c) hereof.
"Event Date" has the meaning set forth in Section 2(c) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities,
dated as of February 15, 1997, between the Company and State Street Bank and
Trust Company of California, N.A., as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Liquidated Damages" has the meaning set forth in Section 2(c)
hereof.
"Majority Holders" means the Holders of a majority of the then
outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; provided, that Holders of Common Stock issued upon
conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Common Stock was converted.
"Managing Underwriters" means the Underwriter or Underwriters
that shall administer an Underwritten Offering.
"Notice Holder" has the meaning set forth in Section 2(b)
hereof.
-2-
3
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or Common Stock issuable upon
conversion thereof, covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including post-effective
amendments.
"Record Date" has the meaning set forth in Section 2(c)
hereof.
"Record Holder" has the meaning set forth in Section 2(c)
hereof.
"Registrable Securities" shall mean the Securities and shares
of Common Stock issued upon conversion thereof, excluding any such securities
that, and any such securities the predecessors of which, were previously sold
pursuant to a registration statement of the Company filed under the Act or
pursuant to Rule 144 promulgated under the Act.
"Securities" has the meaning set forth in the preamble hereto.
"Selling Confirmation" means, with respect to a Notice Holder
and a Selling Notice given by such Notice Holder, a written notice given by the
Company to such Notice Holder instructing and notifying such Notice Holder that
the Shelf Registration Statement and Prospectus may be used during the
applicable Selling Period to effect the transactions described in such Selling
Notice, that the Company is then-currently in compliance with Section 3(b) and
that the Company reaffirms the consent granted pursuant to Section 3(f).
"Selling Notice" has the meaning set forth in Section 2(b)
hereof.
"Selling Period" means, with respect to a Notice Holder and a
Selling Notice given by such Notice Holder, a period of forty- five calendar
days commencing on the date such Notice Holder receives a Selling Confirmation
in respect of the transactions described in such Selling Notice; provided, that
the Company may defer existing Selling Periods in accordance with Section
3(c)(2).
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(a) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 hereof
(including additional registration statements filed pursuant to Section 3(d))
which covers some or all of the Securities and the Common Stock issuable upon
conversion thereof, as applicable, on an appropriate form under Rule 415
promulgated under the Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including
-3-
4
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" means the trustee with respect to the Securities
under the Indenture.
"Underwriter" means any underwriter of Securities or Common
Stock issuable upon conversion thereof in connection with an offering thereof
under a Shelf Registration Statement.
"Underwritten Offering" means an offering in which the
Securities or Common Stock are sold to an Underwriter or with the assistance of
an Underwriter for reoffering to the public.
2. Shelf Registration; Suspension of Use of Prospectus;
Liquidated Damages.
(a) The Company shall prepare and file with the
Commission, as soon as practicable but in any event on or prior to the date
sixty (60) days following the Closing Date, a Shelf Registration Statement
under the Act registering the resale from time to time by Holders thereof of
all of the Registrable Securities. The Shelf Registration Statement shall
permit resales of Registered Securities by Holders in the manner or manners
designated by them (including, without limitation, one or more Underwritten
Offerings) from time to time, which shall be set forth in such Shelf
Registration Statement. The Company shall cause the Shelf Registration
Statement to be declared effective under the Act as soon as practicable but in
any event on or prior to the date ninety (90) days following the Closing Date
and to keep the Shelf Registration Statement continuously effective under the
Act until the earlier of (i) the third anniversary of the last date of original
issuance of the Securities (ii) the date on which the Securities or Common
Stock issuable upon conversion thereof may be sold by non-affiliates of the
Company pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the Commission and (iii) such date as of which all the
Securities or the Common Stock issuable upon conversion thereof have been sold
pursuant to the Shelf Registration Statement (the period ending at such earlier
date, the "Shelf Registration Period").
(b) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell its Registrable Securities pursuant to the Shelf
Registration Statement and the Prospectus, it will do so only in accordance
with this Section 2(b). Each Holder of Registrable Securities agrees to give
written notice to the Company at least four Business Days prior to any intended
resale of Registrable Securities under the Shelf Registration Statement, which
notice shall specify the date on which such Holder intends to begin such
distribution and such information with respect to such Holder and the intended
distribution as may be reasonably required to amend the Shelf Registration
Statement or supplement the Prospectus with respect to such intended
distribution (each Holder providing the notice described in this sentence and
with respect to which the related Selling Period is continuing or has been
deferred, a "Notice Holder"; each such notice, a "Selling Notice"). As soon as
practicable after the date a Selling
-4-
5
Notice is received by the Company, and in any event within three Business Days
after such date, the Company shall either:
(i) (A) provide a Selling Confirmation to such
Notice Holder or (B) file a supplement to the Prospectus or a post-effective
amendment to the Shelf Registration Statement as required by Section 3(b),
cause any such amendment to become effective and immediately provide a Selling
Confirmation to such Notice Holder; or
(ii) in the event of the happening of any event or
circumstance of the kind described in Section 3(c)(2)(i), 3(c)(2)(ii),
3(c)(2)(iii)(y) or 3(c)(2)(iv) hereof, the Company shall deliver to such
Notice Holder the notice required by Section 3(c)(2) and notify the holder that
the consent granted pursuant to Section 3(f) is suspended until further notice.
Each such Notice Holder may sell all or any
Registrable Securities pursuant to the Shelf Registration Statement and the
Prospectus only during the Selling Period commencing with the earlier of (x)
the date on which such Notice Holder receives a Selling Confirmation and (y)
the fourth Business Day after the related Selling Notice has been received by
the Company; provided that in the event the Company elects to take the actions
permitted by Section 2(b)(ii), the commencement of the Selling Period shall be
deferred until such later date as the Company delivers a Selling Confirmation.
A Notice Holder shall not sell any Registrable Securities pursuant to the Shelf
Registration Statement or the Prospectus after the expiration of the applicable
Selling Period without giving a new Selling Notice pursuant to Section 2(b)
hereof and receiving a new Selling Confirmation. Notwithstanding the
foregoing, the Company shall not under any circumstances be entitled to
exercise its right under this paragraph to defer the commencement of a Selling
Period or its right under Section 3(c)(2) to defer existing Selling Periods, in
the aggregate, more than one time in any three month period or three times in
any twelve month period, and the period in which a Selling Period is deferred
shall not exceed thirty (30) days. In no event shall the Company be permitted
to extend the period during which the commencement of any such Selling Period
is deferred (whether pursuant to this paragraph or Section 3(c)(2) from and
after the date a Notice Holder provides a Selling Notice to the Company in
accordance with this Section 2(b) (a "Deferral Period") beyond such thirty (30)
day period.
In the event the Company elects to take the actions described
in Section 2(b)(ii), the Company will, at such time as it is in compliance with
Section 3(b) and as use of the Prospectus may be resumed, immediately provide
Selling Confirmations to all Notice Holders.
(c) The parties hereto agree that the Holders of the
Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if (i) the Shelf
Registration statement has not been filed on or prior to the date sixty (60)
days following the Closing Date, (ii) the Shelf Registration Statement has not
been declared effective under the Securities Act on or before the date ninety
(90) days following the Closing Date, (iii) prior to the end of the Shelf
Registration Period, the Commission shall have
-5-
6
issued a stop order suspending the effectiveness of the Shelf Registration
Statement or proceedings have been initiated with respect to the Shelf
Registration Statement under Section 8(d) or 8(e) of the Act, (iv) the
aggregate number of days in any one Deferral Period exceeds the periods
permitted pursuant to Section 2(b) hereof or (v) the number of Deferral Periods
exceeds the number permitted pursuant to Section 2(b) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (v) are
individually referred to herein as an "Event"; and the date sixty (60) days
following the Closing Date in the case of clause (i), the date ninety (90) days
following the Closing Date in the case of clause (ii), the date on which the
effectiveness of the Shelf Registration Statement has been suspended or
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Act have been commenced in the case of clause (iii), the date on
which the duration of a Deferral Period exceeds the periods permitted by
Section 2(b) hereof in the case of clause (iv), and the date of the
commencement of a Deferral Period that causes the limit on the number of
Deferral Periods under Section 2(b) hereof to be exceeded in the case of clause
(v), are referred to herein as an "Event Date"). Events shall be deemed to
continue until the date of the termination of such Event, which shall be the
following date with respect to the respective types of Events: the date the
Registration Statement is filed in the case of an Event of the type described
in clause (i), the date the Registration Statement is declared effective under
the Act in the case of an Event described in clause (ii), the date that all
stop orders suspending effectiveness of the Shelf Registration Statement have
been removed and the proceedings initiated with respect to the Shelf
Registration Statement under Section 8(d) or 8(e) of the Act have terminated,
as the case may be, in the case of Events of the types described in clause
(iii), termination of the Deferral Period which caused the aggregate number of
days in any one Deferral Period to exceed the number permitted by Section 2(b)
to be exceeded in the case of Events of the type described in clause (iv), and
termination of the Deferral Period the commencement of which caused the number
of Deferral Periods permitted by Section 2(b)(ii) to be exceeded in the case of
Events of the type described in clause (v).
Accordingly, upon the occurrence of any Event and until such
time as there are no Events which have occurred and are continuing (a "Damages
Accrual Period"), commencing on the Event Date on which such Damages Accrual
Period began, the Company agrees to pay, as liquidated damages, and not as a
penalty, an additional amount (the "Liquidated Damages"): (A) to each Holder
of Registrable Securities that is a Notice Holder, accruing at a rate equal to
one-half of one percent per annum (50 basis points) on (s) where such
Registrable Securities are Securities, the aggregate principal amount of such
Securities held by such Notice Holder and (t) where such Registrable Securities
are shares of Common Stock issued upon conversion of Securities, the aggregate
-6-
7
principal amount of Securities that were converted into such shares and (B) if
the Damages Accrual Period continues for a period in excess of thirty days from
the Event Date, from and after the end of such thirty day period until such
time as there are no Events which have occurred and are continuing, to each
Holder of Registrable Securities (whether or not a Notice Holder), accruing at
a rate equal to one-half of one percent per annum (50 basis points) on (u)
where such Registrable Securities are Securities, the aggregate principal
amount of such Securities held by such Holder and (v) where such Registrable
Securities are shares of Common Stock issued upon conversion of Securities, the
aggregate principal amount of Securities that were converted into such shares.
Notwithstanding the foregoing, no Liquidated Damages shall accrue under clause
(A) of the preceding sentence during any period for which Liquidated Damages
accrue under clause (B) of the preceding sentence or as to any Securities or
shares of Common Stock from and after the earlier of (x) the date such
securities are no longer Registrable Securities, and (y) the expiration of the
Shelf Registration Period. In addition, Liquidated Damages will not accrue as
to any Securities or Common Stock issuable upon the conversion thereof
represented by the Unrestricted Global Note (as defined in the Indenture)
provided that such securities are not subject to limitations on transfer under
United States federal or state securities laws and there shall have been at
least six months during which the Shelf Registration Statement was effective
and the Prospectus included therein was available for effecting resales of the
Securities and the Common Stock issuable upon conversion thereof. The rate of
accrual of the Liquidated Damages with respect to any period shall not exceed
the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.
Liquidated Damages due on any Securities or Common Stock shall
be payable on each Interest Payment Date on the Securities occurring (or if
there are no Securities outstanding, which would have occurred) during the
Damages Accrual Period and on the Interest Payment Date immediately following
(or which would have followed) the termination of such Period (a "Damages
Payment Date"). The Company shall pay the Liquidated Damages due on any
Securities by depositing with the Trustee under the Indenture, in trust, for
the benefit of the Holders of Securities or Common Stock or Notice Holders, as
the case may be, entitled thereto, at least one Business Day prior to the
applicable Damages Payment Date, sums sufficient to pay the Liquidated Damages
accrued or accruing since the last preceding Damages Payment Date to such
Damages Payment Date. The Liquidated Damages shall be paid on each Damages
Payment Date to the Holders of record of the Registrable Securities (the
"Record Holders") on the 15th day of February or 15th day of August (each a
"Record Date") immediately preceding such Damages Payment Date by wire transfer
of immediately available funds to the accounts specified by them or by mailing
checks to their registered addresses as they appear in the Securities register
or stock transfer books of the Company, if no such accounts have been specified
on or before the applicable Regular Record Date. The Trustee shall be
entitled, on behalf of the Holders of Securities, Common Stock and Notice
Holders, to seek any available remedy for the enforcement of this Agreement,
including for the payment of such Liquidated Damages.
Notwithstanding the foregoing, the parties agree that the sole
remedy payable for a violation of the terms of this Agreement with respect to
which Liquidated Damages are expressly provided shall be such Liquidated
Damages. Nothing shall preclude a Notice Holder or Holder of Registrable
Securities from pursuing or obtaining specific performance or other equitable
relief with respect to any violation of this Agreement for which liquidated
damages are not expressly provided by this Agreement.
All of the Company's obligations set forth in this Section
2(c) which are outstanding with respect to any Registrable Securities at the
time such security ceases to be a
-7-
8
Registrable Security shall survive until such time as all such obligations with
respect to such security have been satisfied in full (notwithstanding
termination of the Agreement).
The parties hereto agree that the Liquidated Damages provided
for in this Section 2(c) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration Statement to be
filed or declared effective or unavailable (absolutely or as a practical
matter) for effecting resales of Registrable Securities, as the case may be, in
accordance with the provisions hereof.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its best efforts to reflect in each
such document, when so filed with the Commission, such comments as Salomon
Brothers Inc reasonably may propose.
(b) The Company shall ensure that (i) any Shelf
Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto comply in all material
respects with the Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, 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 (iii) any Prospectus forming part of any Shelf
Registration Statement, and any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided that no
representation or agreement is made hereby with respect to information with
respect to you or any Holder required to be included in any Shelf Registration
Statement or Prospectus pursuant to the Act or the rules and regulations
thereunder or provided by you, any Holder, or any Managing Underwriter
specifically for inclusion in any Shelf Registration Statement or Prospectus.
(c) (1) The Company shall advise you and the Holders
and, if requested by you or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
-8-
9
(2) During any Selling Period, during the deferral of any
Selling Period and within three Business Days of receipt by the Company of any
Selling Notice, the Company shall notify you and the Notice Holders and, if
requested by you or any such Notice Holder, confirm such notification in
writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities
included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(iii) of (x) the suspension of the use of the Prospectus
pursuant to Section 2(b) hereof or (y) of the happening of any event
that requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; and
(iv) of the determination by the Company, in its judgment,
that it is advisable to suspend use of the Prospectus for valid
business reasons (not including avoidance of the Company's obligations
hereunder) including, among other things, the acquisition or
divestiture of assets, public filings with the Commission, pending
corporate developments and similar events;
which notice shall be accompanied by an instruction to defer the use of the
Prospectus until the Company delivers a Selling Confirmation whereupon any
existing Selling Period shall be deferred and shall recommence upon delivery of
the aforementioned Selling Confirmation; provided, that such Selling Period
shall be extended by the number of days elapsed in such period prior to such
deferral.
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Shelf Registration
Statement at the earliest possible time, and in any event shall within thirty
(30) days of any such order amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of such order, or file an
additional Shelf Registration Statement covering all of the Registrable
Securities (whereupon references herein to the Shelf Registration Statement
shall be deemed to include reference to such additional filing).
(e) The Company shall furnish to each Holder of
Securities or the Common Stock issued upon conversion thereof included within
the coverage of any Shelf Registration
-9-
10
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities or the Common Stock issued upon
conversion thereof included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and,
except during such periods as the Company shall have suspended the use of the
Prospectus pursuant to Section 2(b) or 3(c)(2), the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Securities or the
Common Stock issued upon conversion thereof covered by the Prospectus or any
amendment or supplement thereto.
(g) Prior to any offering of Securities or the Common
Stock issued upon conversion thereof pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the Holders
of Securities or the Common Stock issued upon conversion thereof included
therein and their respective counsel in connection with the registration or
qualification of such Securities or Common Stock for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities and the Common Stock issued upon conversion thereof covered by such
Shelf Registration Statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is not then
so subject.
(h) The Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Securities or the Common Stock issued upon conversion thereof to be sold
pursuant to any Shelf Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may request
prior to sales of Securities or the Common Stock issued upon conversion thereof
pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) above, the Company shall promptly prepare a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered (when and as permitted pursuant to Section 2(b))
to purchasers of the Securities or the Common Stock issued upon conversion
thereof included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
-10-
11
(j) The Company shall use its best efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned to
the Securities any designation indicating that the Securities are "restricted
securities", which efforts shall include delivery to DTC of a letter executed
by the Company substantially in the form of Exhibit A hereto and (ii) any other
stop or restriction on DTC's system with respect to the Securities. In the
event the Company is unable to cause DTC to take the actions described in the
immediately preceding sentence, the Company shall take such actions as Salomon
Brothers Inc may reasonably request to provide, as soon as practicable, a CUSIP
number for the Securities registered under such Shelf Registration Statement
and to cause such CUSIP number to be assigned to the Securities (or to the
maximum aggregate principal amount of the Securities to which such number may
be assigned). Upon compliance with the foregoing requirements of this Section
3(j), the Company shall provide the Trustee with printed certificates for such
Securities, in a form eligible for deposit with DTC.
(k) The Company shall use its best efforts to comply with
all applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act and Rule 158 promulgated
by the Commission thereunder.
(l) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(m) The Company may require each Holder of Securities or
the Common Stock issued upon conversion thereof to be sold pursuant to any
Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities or Common Stock as
may, from time to time, be required by the Act and the rules and regulations
promulgated thereunder, and the obligations of the Company to any Holder
hereunder shall be expressly conditioned on the compliance of such Holder with
such request.
(n) The Company shall, if requested, use its best efforts
to promptly incorporate in a Prospectus supplement or post- effective amendment
to a Shelf Registration Statement (i) such information as the Majority Holders
or, if the Securities or Common Stock are being sold in an Underwritten
Offering, as the Managing Underwriters and the Majority Holders reasonably
agree should be included therein and provide to the Company in writing for
inclusion in the Shelf Registration Statement or Prospectus, and (ii) such
information as a Holder may provide from time to time to the Company in writing
for inclusion in a Prospectus or any Shelf Registration Statement concerning
such Holder and the distribution of such Holder's Securities and Common Stock
and, in either case, shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
-11-
12
(o) The Company shall enter into such agreements
(including underwriting agreements) and take all other appropriate actions in
order to expedite or facilitate the registration or the disposition of the
Securities or the Common Stock issuable upon conversion thereof, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable to
the Holders than those set forth in Section 5 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section 5 from
Holders of Securities or the Common Stock issuable upon conversion thereof to
the Company).
(p) The Company shall (i) make reasonably available for
inspection by the Holders of Securities or the Common Stock issued upon
conversion thereof to be registered under a Shelf Registration Statement, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent retained by
the Holders or any such Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or any such
Underwriter, attorney, accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing by the
Company, in its sole discretion, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such
Underwriter, attorney, accountant or agent, unless disclosure thereof is made
in connection with a court proceeding or required by law, or such information
has become available to the public generally or through a third party without
an accompanying obligation of confidentiality; (iii) make such representations
and warranties to the Holders of Securities or the Common Stock issued upon
conversion thereof registered thereunder and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to Underwriters and
covering matters including, but not limited to, those set forth in the Purchase
Agreement; (iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each selling
Holder and the Underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters; (v) obtain
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration Statement),
addressed to each selling Holder of Securities or the Common Stock issued upon
conversion thereof registered thereunder (provided such Holder furnishes the
accountants with such representations as the accountants customarily require in
similar situations) and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and (vi) deliver such documents
and certificates as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
-12-
13
compliance with Section 3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 3(p) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
4. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2
and 3 hereof and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith (which shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC, unless and until an alternate designation is
made by the majority Holders).
5. Indemnification and Contribution.
(a) (i) In connection with any Shelf Registration
Statement, the Company agrees to indemnify and hold harmless each Holder of
Securities or Common Stock issued upon conversion thereof covered thereby
(including the Initial Purchasers), the directors, officers, employees and
agents of each such Holder and each person who controls any such Holder within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon (A) any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any such Holder or any
Initial Purchaser specifically for inclusion therein, (B) use of a Shelf
Registration Statement or the related Prospectus during a period when a stop
order has been issued in respect of such Shelf Registration or any proceedings
for that purpose have been initiated or use of a Prospectus when use of such
Prospectus has been deferred pursuant to Section 2(b); provided, further, in
each case, that the Company delivered prior notice, and the Holders have
received such prior notice, in accordance with Section 6(c) hereof of such stop
order, initiation of proceedings or deferral or (C) if the Holder fails to
deliver a Prospectus or the then current Prospectus. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
-13-
14
(ii) The Company also agrees to indemnify or
contribute to Losses, as provided in Section 5(d), of any Underwriters of
Securities or the Common Stock issued upon conversion thereof registered under
a Shelf Registration Statement, their officers and directors and each person
who controls such Underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 5(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(o)
hereof.
(b) Each Holder of Securities or Common Stock issued upon
conversion thereof covered by a Shelf Registration Statement (including the
Initial Purchasers) severally agrees to indemnify and hold harmless (i) the
Company, (ii) each of its directors, (iii) each of its officers who signs such
Shelf Registration Statement and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (and local counsel) if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice
-14-
15
of the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party; provided further, that the indemnifying party shall not
be responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a)(i), paragraph (a)(ii) or paragraph (b) above. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 5 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Shelf Registration Statement which resulted in such
Losses; provided, however, that in no case shall the Initial Purchasers be
responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, as set forth on the cover
page of the Final Memorandum (unless such Initial Purchaser shall also be an
Underwriter, in which case, such Initial Purchaser shall also be responsible
for amounts pursuant to the remainder of this sentence), nor shall any
Underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities and Common Stock issued
upon conversion thereof purchased by such Underwriter under the Shelf
Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum and
(y) the total amount of additional interest which the Company was not required
to pay as a result of registering the Securities and Common Stock issued upon
conversion thereof covered by the Shelf Registration Statement which resulted
in such Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Memorandum, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Securities or the Common
Stock issuable upon conversion thereof registered under the Act. Benefits
received by any Underwriter shall be deemed to be equal to the total
underwriting
-15-
16
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Shelf Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 5, each
person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder
shall have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Shelf Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the officers, directors or controlling persons
referred to in Section 5 hereof, and will survive the sale by a Holder of
Securities covered by a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into nor shall it, on or after the date hereof,
enter into, any agreement with respect to its Securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders; provided that, with respect to any
matter that directly or indirectly affects the rights of the Initial Purchasers
hereunder, the Company shall obtain the written consent of the Initial
Purchasers against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders
whose Securities are being sold pursuant to a Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis of Securities being sold
rather than registered under such Shelf Registration Statement.
-16-
17
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand- delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to you, initially at the address set forth
in the Purchase Agreement;
(ii) if to any other Holder, at the most current
address given by such Holder to the Company in accordance with the
provisions of this Section 6(c), which address initially is, with
respect to each Holder, the address of such Holder maintained by the
Registrar under the Indenture, with a copy in like manner to Salomon
Brothers Inc; and
(iii) if to the Company, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Initial Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company thereto, subsequent Holders. The Company hereby agrees to
extend the benefits of this Agreement to any Holder and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said State, without regard to the
conflicts of law rules thereof.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such
-17-
18
provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, it being intended that all of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or the Common Stock issuable upon conversion thereof is required
hereunder, Securities or the Common Stock issued upon conversion thereof held
by the Company or its Affiliates (other than subsequent Holders of Securities
or the Common Stock issued upon conversion thereof if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
-18-
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
INTEVAC, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: CFO
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
SALOMON BROTHERS INC
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & COMPANY LLC
By: Salomon Brothers Inc
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
-19-
20
EXHIBIT A
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 6 1/2% Convertible Subordinated Notes due 2004 (the "Securities") of
Intevac, Inc. (the "Issuer")
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with regard to all of the Securities referenced above.
Accordingly, there is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
Authorized Officer
A-1