EXHIBIT 10.20
PLASMA & MATERIALS TECHNOLOGIES, INC.
7 1/8% Convertible Subordinated Notes Due 2001
REGISTRATION AGREEMENT
New York, New York
October 7, 1996
Salomon Brothers Inc
Unterberg Harris
c/o Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Plasma & Materials Technologies, 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 of even date herewith (the "Purchase Agreement"), $75,000,000
principal amount (plus up to an additional $11,250,000 principal amount to cover
over-allotments, if any) of its 7 1/8% Convertible Subordinated Notes Due 2001
(the "Securities"). The Securities will be convertible into shares of Common
Stock, no par value per share (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
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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:
"Acquisition" means the transactions contemplated by the Share
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Purchase Agreement dated as of July 17, 1996, as amended, entered into among the
Company, Electrotech Limited and Electrotech Equipments Limited (collectively,
"Electrotech"), and the shareholders of Electrotech, pursuant to which the
Company will acquire 100% of the outstanding capital stock of Electrotech.
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"Act" means the Securities Act of 1933, as amended, and the rules and
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regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person that,
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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.
"Business Day" means any day that is neither a Saturday or a Sunday
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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.
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"Commission" means the Securities and Exchange Commission.
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"Damages Accrual Period" has the meaning set forth in Section 2(c)
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hereof.
"Damages Payment Date" has the meaning set forth in Section 2(c)
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hereof.
"Event" has the meaning set forth in Section 2(c) hereof.
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"Event Date" has the meaning set forth in Section 2(c) hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Final Memorandum" has the meaning set forth in the Purchase
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Agreement.
"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the Indenture relating to the Securities dated as of
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October 7, 1996, between the Company and U.S. 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.
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"Liquidated Damages" has the meaning set forth in Section 2(c) hereof.
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"Majority Holders" means the Holders of a majority of the then
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outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; provided, that Holders of Common Stock issued upon
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conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Common Stock was converted.
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"Managing Underwriters" means the Underwriter or Underwriters that
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shall administer an Underwritten Offering.
"Notice Holder" has the meaning set forth in Section 2(b) hereof.
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"Prospectus" means the prospectus included in any Shelf Registration
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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.
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"Record Holder" has the meaning set forth in Section 2(c) hereof.
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"Registrable Securities" shall mean the Securities and shares of
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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.
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"Selling Confirmation" means, with respect to a Notice Holder and a
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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.
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"Selling Period" means, with respect to a Notice Holder and a Selling
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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
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Company may defer existing Selling Periods in accordance with Section 3(c)(2).
"Shelf Registration" means a registration effected pursuant to
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Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(a)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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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
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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 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
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Indenture.
"Underwriter" means any underwriter of Securities or Common Stock
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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
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Common Stock issuable upon conversion thereof 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
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Damages.
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(a) The Company shall prepare and file with the Commission, as soon
as practicable and in any event within the later to occur of (i) sixty days
after the Closing Date or (ii) thirty days after the consummation of the
Acquisition, 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 Registrable 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 within (x)
ninety days after the Closing Date or (y) if the Acquisition occurs sixty days
or more after the Closing Date, thirty days after such Shelf Registration
Statement is filed with the Commission. The Company shall keep the Shelf
Registration Statement continuously effective under the Act until the earlier of
(i) the third anniversary of the Closing Date, (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 three 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
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or has been deferred, a "Notice Holder"; each such notice, a "Selling Notice").
As soon as practicable after the date a Selling Notice is received by the
Company, and in any event within two 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 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 third Business Day after the
related Selling Notice has been received by the Company; provided that in the
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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 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 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 within the later to occur of (A) sixty days after
the Closing Date or (B) thirty days after the consummation of the Acquisition,
(ii) the Shelf Registration Statement has not been declared effective under the
Act within (A) ninety days after the Closing Date or (B) if the Acquisition
occurs sixty days or more after the Closing Date, thirty days after such Shelf
Registration Statement is filed with the Commission, (iii) prior to the end of
the Shelf Registration Period, the
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Commission shall have 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 (a) sixty days after
the Closing Date or thirty days after the consummation of the Acquisition, as
applicable, in the case of clause (i), (b) ninety days following the Closing
Date or thirty days after the Shelf Registration Statement is filed with the
Commission, as applicable, in the case of clause (ii), (c) 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), (d) on which
the duration of a Deferral Period exceeds the periods permitted by Section 2(b)
hereof in the case of clause (iv), and (e) 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") to each Holder of Registrable
Securities, accruing at a rate equal to one-half of one percent per annum (50
basis points) on (i) where such Registrable Securities are Securities, the
aggregate principal amount of such Securities held by such Holder and (ii) 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 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. 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.
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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 or Common
Stock by depositing with the Trustee under the Indenture, in trust, for the
benefit of the Holders of Securities or Common Stock 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 1st day of April or the 1st day of
October (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 Record Date. The Trustee shall
be entitled, on behalf of the Holders of Securities and Common Stock, 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 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 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
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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.
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(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
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hereby with respect to information with respect to you or any Holder required to
be included in any Shelf Registration 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 such 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.
(2) During any Selling Period, during the deferral of any
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Selling Period and within two 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
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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
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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 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 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
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writing and do any and all other acts or things reasonably 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
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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.
(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 numbers assigned to the Securities and the
Common Stock issuable upon conversion thereof any designation indicating that
such Securities or Common Stock are "restricted securities" within the meaning
of Rule 144(a)(3) of the Act, 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 or Common Stock. 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, CUSIP numbers for the Securities and Common
Stock registered under such Shelf Registration Statement and to cause such CUSIP
numbers to be assigned to the Securities and Common Stock (or to the maximum
aggregate principal amount of the Securities and the maximum amount of shares of
Common Stock to which such numbers 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 and Common Stock, in a
form eligible for deposit with The Depository Trust Company.
(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.
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(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.
(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
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information that is designated in writing by the Company, in good faith, 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
11
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 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.
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
12
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
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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
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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.
(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
13
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 reasonably satisfactory to the
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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
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice 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. 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,
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that in no case shall the Initial Purchasers or any subsequent Holder of any
Securities or the Common Stock issued upon conversion thereof 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, 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
14
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 Liquidated
Damages 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 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
15
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.
(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:
1. if to you, initially at the address set forth in the
Purchase Agreement;
2. 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
3. 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.
16
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California 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 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 issued 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 issuable 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.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
PLASMA & MATERIALS TECHNOLOGIES, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
SALOMON BROTHERS INC
UNTERBERG HARRIS
By Salomon Brothers Inc
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
17
EXHIBIT A
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depositary Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 7 1/8% Convertible Subordinated Notes Due 2001 (the "Convertible
Notes") of Plasma & Materials Technologies, 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 Convertible Notes referenced above and the
Common Stock, no par value, of Plasma & Materials Technologies, Inc. issuable
upon conversion of the Convertible Notes (collectively, the "Securities").
Accordingly, there is no longer any restriction as to whom the 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