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EXHIBIT B
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of December 1, 1999, between Xxxxxx
Aerospace & Electronics Corporation, a Nevada corporation (the "Seller"), and
Xxxxxx City LLC, a California limited liability company (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller owns 5,600,000 shares of common stock, $.01 par
value per share (the "Common Stock"), of Intevac, Inc., a California corporation
(the "Company"); and
WHEREAS, the Seller wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Seller, such shares of the Common Stock (such shares
to be sold pursuant to this Agreement being individually, a "Share" and,
collectively, the "Shares"), upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser and the Seller
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration, inquiry, proceeding
or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
"Business" has the meaning specified in Section 5.01.
"Closing" has the meaning specified in Section 2.03(a).
"Closing Date" has the meaning specified in Section 2.03(a).
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly or as trustee or executor, of the
power to direct or cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of
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securities having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person.
"Encumbrance" means any security interest, pledge, mortgage, lien,
charge, encumbrance, adverse claim, preferential arrangement or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership,
other than such restrictions and encumbrances as are contained in the Company
Articles of Incorporation and restrictions imposed by the federal securities
laws and applicable state securities laws.
"Governmental Authority" means any United States federal, state or local
or any foreign government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order requirement or rule of common law.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"Purchase Price" has the meaning specified in Section 2.02.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon the terms and
subject to the conditions contained in this Agreement, at the Closing, the
Seller shall sell to the Purchaser, and the Purchaser shall purchase from the
Seller, 5,600,000 Shares.
SECTION 2.02. Purchase Price. The purchase price shall be an amount per
Share equal to (x) the average (rounded to the nearest whole cent per Share) of
the high and low sales prices of a Share as quoted on the National Association
of Securities Dealers National Market System for the fifteen (15) trading days
preceding December 1, 1999, minus (y) a discount equal to thirty percent (30%)
of the average price of a share as determined under (x) (the "Purchase Price"),
payable as provided in Section 2.03(b).
SECTION 2.03. Closing.
(a) Subject to the terms and conditions of this Agreement, the
closing of the
sale and purchase of the Shares contemplated by this Agreement shall take place
at a closing (the "Closing") to be held at the offices of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx as promptly as practicable after the date hereof on such date and at
such time as the Seller and the Purchaser may mutually agree upon in writing.
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(b) At the Closing, (i) the Seller shall deliver or cause to be
delivered to the Purchaser (A) stock certificates evidencing the Shares duly
executed in blank in form satisfactory to the Purchaser and (B) a signed
counterpart of the Pledge Agreement attached hereto as Exhibit B (the "Pledge
Agreement") and (ii) the Purchaser shall deliver to the Seller (A) a promissory
note in the principal amount of the aggregate Purchase Price as determined under
Section 2.02 hereof and in the form attached hereto as Exhibit A and (B) a
signed counterpart of the Pledge Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this Agreement, the
Seller hereby represents and warrants to the Purchaser as follows:
SECTION 3.01. Authority to Execute and Perform the Agreement. The Seller
has all requisite right, power and authority and full legal capacity to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Seller and (assuming due authorization, execution and delivery
by the Purchaser) constitutes a valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms.
SECTION 3.02. Ownership of Shares. The Seller has good and marketable
title to, and is the record and beneficial owner of, the Shares, free and clear
of all Encumbrances. Upon delivery of the Shares by the Seller to the Purchaser
at the Closing and payment of the Purchase Price for the Shares, as herein
provided, the Purchaser will receive good and marketable title to the Shares,
free and clear of all Encumbrances.
SECTION 3.03. No Conflict. Except as may result from any facts or
circumstances relating solely to the Purchaser, the execution, delivery and
performance of this Agreement by the Seller do not and will not (a) conflict
with or violate any Law or Governmental Order applicable to the Seller, (b)
conflict with or violate any declaration of trust or other instrument or
agreement establishing or otherwise governing the Seller or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on the Shares pursuant to, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise
or other instrument or arrangement to which the Seller is a party or by which
the Shares are bound or affected or which would have a material adverse effect
on the ability of the Seller to consummate the transactions contemplated by this
Agreement.
SECTION 3.04. Absence of Litigation. There are no Actions by or against
the Seller pending before any Governmental Authority (or, to the best knowledge
of the Seller after due inquiry, threatened to be brought by or before any
Governmental Authority) relating to or affecting
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the Shares or which could affect the legality, validity or enforceability of
this Agreement or the consummation of the transactions contemplated hereby. The
Seller is not subject to any Governmental Order (nor, to the best knowledge of
the Seller, are there any such Governmental Orders threatened to be imposed by
any Governmental Authority) relating to or affecting the Shares or which would
affect the legality, validity or enforceability of this Agreement or the
consummation of the transactions contemplated hereby.
SECTION 3.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as follows:
SECTION 4.01. Organization and Authority of the Purchaser. The Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of California and has all necessary power
and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Purchaser, the performance by the
Purchaser of its obligations hereunder and the consummation by the Purchaser of
the transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser, and (assuming valid execution and delivery by the
Seller) constitutes a valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms.
SECTION 4.02. No Conflict. Except as may result from any facts or
circumstances relating solely to the Seller, the execution, delivery and
performance of this Agreement by the Purchaser do not and will not (a) violate,
conflict with or result in the breach of any provision of the Operating
Agreement of the Purchaser, (b) conflict with or violate any Law or Governmental
Order applicable to the Purchaser or (c) conflict with, or result in any breach
of, constitute a default (or event which with the giving of notice or lapse or
time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of the Purchaser pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which the Purchaser is a party
or by which any of such assets or properties are bound or affected which would
have a material adverse effect on the ability of the Purchaser to consummate the
transactions contemplated by this Agreement.
SECTION 4.03. Absence of Litigation. There are no Actions by or against
the Purchaser pending before any Governmental Authority (or, to the best
knowledge of the Purchaser, threatened to be brought by or before any
Governmental Authority) which would affect the legality, validity or
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enforceability of this Agreement or the consummation of the transactions
contemplated hereby. The Purchaser is not subject to any Governmental Order
(nor, to the best knowledge of the Purchaser after due inquiry, are there any
such Governmental Orders threatened to be imposed by any Governmental Authority)
which would affect the legality, validity or enforceability of this Agreement or
the consummation of the transactions contemplated hereby.
SECTION 4.04. Investment Purpose. The Purchaser is acquiring the Shares
solely for the purpose of investment and not with a view to, or for offer or
sale in connection with, any distribution thereof.
SECTION 4.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Investigation. The Purchaser acknowledges and agrees that
it (i) has made its own inquiry and investigation into, and, based thereon, has
formed an independent judgment concerning, the Company, the business of the
Company as it is currently being conducted (the "Business") and the Shares,
including, without limitation, the value thereof, (ii) has been furnished with
or given adequate access to such information as it has requested about the
Company, the Business and the Shares and (iii) except as provided in this
Agreement, will not assert any claim against the Seller, the Company or any of
their respective directors, officers, employees, agents, stockholders,
Affiliates, consultants, investment bankers or representatives, or hold the
Seller, the Company or any such Persons liable, for any inaccuracies,
misstatements or omissions with respect to information furnished by the Seller,
the Company or such Persons concerning the Company, the Business or the Shares.
SECTION 5.02. Further Action. Each of the parties hereto shall use all
reasonable efforts to take or cause to be taken all appropriate action, do or
cause to be done all things necessary, proper or advisable, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01. Condition to Obligations of the Seller. The obligations of
the Seller to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment, at or prior to the Closing, of the following
conditions: (a) the representations and warranties of the Purchaser contained in
this Agreement shall have been true and correct when made and shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if made as of the Closing Date; (b) the covenants and agreements
contained in this Agreement to be
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complied with by the Purchaser at or prior to the Closing shall have been
complied with in all material respects; and (c) Seller shall have received a
certificate from the Purchaser as to the accuracy of (a) and (b).
SECTION 6.02. Conditions to Obligations of the Purchaser. The
obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
the following conditions: (a) the representations and warranties of the Seller
contained in this Agreement shall have been true and correct when made and shall
be true and correct in all material respects as of the Closing Date with the
same force and effect as if made as of the Closing Date; (b) the covenants and
agreements contained in this Agreement to be complied with by the Seller at or
prior to the Closing shall have been complied with in all material respects; and
(c) the Purchaser shall have received a certificate signed by the Seller to such
effect.
ARTICLE VII
TERMINATION AND WAIVER
SECTION 7.01. Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by the mutual written consent of the Purchaser and the
Seller;
(b) by either the Purchaser or the Seller if the Closing shall
not have occurred by December 31, 1999; provided, however, that the
right to terminate this Agreement under this Section 7.01(b) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement shall have been the cause of, or shall have resulted in,
the failure of the Closing to occur on or prior to such date;
(c) by either the Purchaser or the Seller in the event that any
Governmental Authority shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order, decree,
ruling or other action shall have become final and nonappealable; or
(d) by the Purchaser if, between the date hereof and the time
scheduled for the Closing, the Seller makes a general assignment for the
benefit of creditors, or any proceeding shall be instituted by or
against the Seller seeking to adjudicate it bankrupt or insolvent, or
seeking arrangement, adjustment, protection, relief or composition of
its debts under any Law relating to bankruptcy, insolvency or
reorganization.
SECTION 7.02. Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.01, this Agreement shall forthwith become
void and there shall be no liability on the part of any party hereto except that
nothing herein shall relieve any party from liability for any breach of this
Agreement.
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SECTION 7.03. Waiver. Any party to this Agreement may (a) extend the
time for the performance of any of the obligations or other acts of any other
party, (b) waive any inaccuracies in the representations and warranties of any
other party contained herein or in any document delivered by the other party
pursuant hereto or (c) waive compliance with any of the agreements or conditions
of any other party contained herein. Any such extension or waiver shall be valid
only if set forth in an instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of
any party to assert any of its rights hereunder shall not constitute a waiver of
any of such rights.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. Survival of Representations and Warranties. The
representations and warranties of the parties hereto contained in Articles III
and IV shall survive the Closing until the second anniversary thereof.
SECTION 8.02. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
SECTION 8.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made as of the date delivered, mailed or sent if delivered
personally or by courier, mailed by registered or certified mail (postage
prepaid, return receipt requested) or sent by telecopy to the respective parties
at the following addresses or telecopier numbers (or at such other address or
telecopier number for a party as shall be specified in a notice given in
accordance with this Section 8.03):
(a) if to the Seller:
Kaiser Aerospace & Electronics Corporation
000 Xxxxx Xxxx - Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Chairman
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) if to the Purchaser:
Xxxxxx City LLC
000 Xxxx Xxxxxx, Xx. 0
Xxxx, XX 00000
Attention: Xx. X.X. Xxxxx
Telephone: (000) 000-0000
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Telecopier: (000) 000-0000
SECTION 8.04. Public Announcements. No party to this Agreement shall
make, or cause to be made, any press release or public announcement or otherwise
communicate with any news media in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the other parties.
SECTION 8.05. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 8.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 8.07. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the Seller and the Purchaser with respect to the subject matter hereof.
SECTION 8.08. Assignment. This Agreement may not be assigned by
operation of Law or otherwise without the express written consent of the Seller
and the Purchaser (which consent may be granted or withheld in the sole
discretion of the Seller or the Purchaser); provided, however, that the
Purchaser may assign this Agreement to an Affiliate of the Purchaser without the
consent of the Seller.
SECTION 8.09. No Third Party Beneficiaries. Except for Article V, this
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and nothing herein, except for Article V,
express or implied, is intended to or shall confer upon any other Person any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 8.10. Amendment. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by, or on behalf of, the Seller
and the Purchaser or (b) by a waiver in accordance with Section 7.03.
SECTION 8.11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, applicable to
contracts executed in and to be performed entirely within that state.
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SECTION 8.12. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 8.13. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at Law or equity.
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IN WITNESS WHEREOF, the Seller has executed this Agreement in his or her
individual capacity and the general partner of the Purchaser has caused this
Agreement to be executed by its officer thereunto duly authorized as of the date
first written above.
KAISER AEROSPACE & ELECTRONICS CORPORATION
By /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title:
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XXXXXX CITY LLC
By /s/ X.X. XXXXX
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Name: X.X. Xxxxx
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Title:
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