Exhibit 1.1
JULY 17, 2000
5,600,000 Shares
CAMTEK LTD.
Ordinary Shares
UNDERWRITING AGREEMENT
July __ , 2000
CIBC World Markets Corp.
UBS Warburg LLC
Xxxxxxx & Company, Inc.
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Ladies and Gentlemen:
Camtek Ltd. (the "Company"), a corporation organized under the
laws of the State of Israel ("Israel"), proposes, subject to the terms and
conditions contained herein, to sell to you and the other underwriters named in
Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), an aggregate of 5,600,000 shares (the
"Firm Shares") of the Company's ordinary shares, NIS 0.01 par value (the
"Ordinary Shares"). The respective amounts of the Firm Shares to be purchased by
each of the Underwriters are set forth opposite their names on Schedule I
hereto. In addition, the Company proposes, subject to the terms and conditions
contained herein, to grant to the Underwriters an option to purchase up to an
additional 840,000 Ordinary Shares (the "Option Shares"), solely for the purpose
of covering over-allotments in connection with the sale of the Firm Shares. The
Firm Shares and the Option Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a price of $[____] per share (the "Purchase Price"), the number of
Firm Shares set forth opposite the name of such Underwriter under the column
"Number of Firm Shares to be Purchased from the Company" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 10 hereof.
(b) The Company hereby grants to the Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares to the
extent indicated on Schedule I hereto at the Purchase Price. The number of
Option Shares to be purchased by each Underwriter shall be the same percentage
(adjusted by the Representatives to eliminate fractions) of the total number of
Option Shares to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters and may be
exercised in whole or in part on one or more occasions at any time on or before
12:00 noon, New York City, time, on the business day before the Firm Shares
Closing Date (as defined below), and from time to time thereafter within 30 days
after the date of this Agreement, in each case upon written, facsimile or
telegraphic notice, or verbal or telephonic notice confirmed by written,
facsimile or telegraphic notice, by the Representatives to the Company no later
than 12:00 noon, New York City time, on the business day before the Firm Shares
Closing Date or at least two business days before the Option Shares Closing Date
(as defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm Shares
Closing Date) of such purchase.
(c) It is understood that [180,000] shares of the Firm Shares will
initially be reserved by the Representatives for offer and sale upon the terms
and conditions set forth in the Prospectus and in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc. (the "NASD")
to employees and business associates of the Company and its affiliates and to
family members of the Company's executives (collectively, the "Participants") as
set forth in the Prospectus (as defined herein) under the caption "Underwriting"
(the "Directed Share Program") who have heretofore delivered to the
Representatives offers or indications of interest to purchase shares of Firm
Shares in form satisfactory to the Representatives. The Firm Shares to be sold
by the Representa tives pursuant to the Directed Share Program (the "Directed
Shares") will be sold by the Representatives pursuant to this Agreement at the
public offering price. Any Directed Shares not orally confirmed for purchase by
any Participants by the end of the business day on which this Agreement is
executed will be offered to the public by the Representatives as set forth in
the Prospectus.
(d) The Underwriters agree that they will not offer the Shares to more
than thirty-five (35) offerees in Israel and will cause each offeree in Israel
who has purchased Shares to execute a representation that such offeree is
acquiring the Shares for investment purposes only and not with
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a view towards distribution or resale. The Representatives will deliver to the
Company a list of such Israeli offerees at the Closing.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the Underwriters,
and payment of the Purchase Price therefor in immediately available funds by
wire transfer to the order of the Company for the shares purchased from the
Company, against delivery of the respective certificates therefor to the
Representatives, shall take place at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, counsel for the
Underwriters, at 10:00 a.m., New York City time, on the third business day
following the date of this Agreement, or at such time on such other date, not
later than 10 business days after the date of this Agreement, as shall be agreed
upon by the Company and the Representatives (such time and date of delivery and
payment are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is
exercised in whole or in part on one or more occasions, delivery of the Option
Shares to the Underwriters for the respective accounts of the Underwriters and
payment of the Purchase Price therefor in immediately available funds by wire
transfer to the account of the Company shall take place at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, specified above at the time and on the
date (which may be the same date as, but in no event shall be earlier than, the
Firm Shares Closing Date) specified in the notice referred to in Section 1(b)
(such time and date of delivery and payment are called the "Option Shares
Closing Date"). The Firm Shares Closing Date and each Option Shares Closing Date
are called, individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a Registration Statement (as hereinafter
defined) on Form F-1 (File No. 333-11628), including a Preliminary Prospectus
(as defined below) relating to the Shares, and such amendments thereof as may
have been required to the date of this Agreement. Copies of such Registration
Statement (including all amendments thereof) and of the related Preliminary
Prospectus (as hereinafter defined) have heretofore been delivered by the
Company to you. The term "Preliminary Prospectus" means any preliminary
prospectus (as described in Rule 430 of the Rules) included at any time as a
part of the Registration Statement or filed with the Commission by the Company
with the consent of the Underwriters pursuant to Rule 424(a) of the Rules. The
term "Registration Statement" as used in this Agreement
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means the initial registration statement (including all exhibits and financial
schedules), as amended at the time and on the date it becomes effective (the
"Effective Date") and as thereafter amended by post effective amendments
including the information (if any) deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A of the Rules. If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement") then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
The Company understands that the Underwriters propose to make
a public offering and sale of the Shares, as set forth in and pursuant to the
Prospectus, as soon after the Effective Date and the date of this Agreement as
the Underwriters deem advisable. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed each Preliminary Prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement complied, and on
the date of the Prospectus, the date any post-effective amendment to the
Registration Statement becomes effective, the date any supplement or amendment
to the Prospectus is filed with the Commission and each Closing Date, the
Registration Statement and the Prospectus (and any amendment thereof or
supplement thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder. The Registration Statement did not, as of the Effective
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and on the other dates referred to above
neither the Registration Statement nor the Prospectus, nor any amendment thereof
or supplement thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. When any related
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement thereto was
first filed with the Commission, such Preliminary Prospectus as amended or
supplemented complied in all material respects with the applicable provisions of
the Securities Act and the Rules and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading.
Notwithstanding the foregoing, none of the representations and warranties in
this paragraph 4(a) shall apply to statements in, or omissions from, the
Registration Statement or the
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Prospectus made in reliance upon, and in conformity with, information herein or
otherwise furnished in writing by the Underwriters for use in the Registration
Statement or the Prospectus. With respect to the preceding sentence, the Company
acknowledges that the only information furnished in writing by the Underwriters
for use in the Registration Statement or the Prospectus is the statements
contained in [to come] under the caption "Underwriting" in the Prospectus.
(b) The Registration Statement is effective under the Securities Act
and no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus has been issued
and no proceedings for that purpose have been instituted or are threatened under
the Securities Act; any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) of the Rules has been or will be made in the
manner and within the time period required by such Rule 424(b).
(c) The Company has received from the Israel Securities Authority (the
"ISA") an exemption from the obligation to issue and publish a prospectus
pursuant to the Israeli Securities Law, 1968 (the "ISA Exemption"), in order to
offer and sell the Shares as contemplated hereunder and the ISA Exemption was in
full force and effect on the Effective Date and shall be in full force and
effect on the date of the Prospectus, on the date any post-effective amendment
to the Registration Statement shall become effective, when any supplement or
amendment to the Prospectus is filed with the Commission and at each Closing
Date, subject to the limitations set forth in Section 1(d).
(d) Subject to the compliance by the Underwriters with their agreement
contained in Section 1(d) above, the Company has obtained all approvals or
exceptions under Israeli law which are required to be complied with by the
Company to consummate the transactions contemplated hereunder and in the
Prospectus.
(e) The consolidated financial statements of the Company (including all
notes and schedules thereto) included in the Registration Statement and
Prospectus present fairly the financial position, the results of operations, the
statements of cash flows and the statements of shareholders' equity and the
other information purported to be shown therein of the Company at the respective
dates and for the respective periods to which they apply; and such financial
statements and related schedules and notes have been prepared in conformity with
accounting principles generally accepted in Israel and the United States,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods have been
made. As applicable to the Company's consolidated financial statements,
accounting principles generally accepted in Israel do not differ in any material
respects from accounting principles generally accepted in the United States. The
summary and selected financial data (including quarterly financial data)
included in the Prospectus present fairly the information shown therein as at
the respective dates and for the respective periods specified and the summary
and selected financial data have been presented on a basis consistent with the
consolidated financial statements so set forth in the Prospectus and other
financial information.
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(f) Each of (x) Xxxxxxxxx Xxxx Tevet and (y) Xxxxxxx X. Xxxxxx &
Company, LLP, whose report is filed with the Commission as a part of the
Registration Statement, are and, during the periods covered by their respective
reports, were independent public accountants as required by the Securities Act
and the Rules.
(g) The Company is a corporation duly organized and validly existing
under the laws of Israel. Each of the Company's subsidiaries (the
"Subsidiaries") has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization. Each of the
Company and the Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the nature of
the business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of operations or financial
condition of the Company and the Subsidiaries, taken as a whole (a "Material
Adverse Effect"). Each of the Company and the Subsidiaries have all requisite
corporate power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates, designations, declarations and permits
of and from all governmental or regulatory bodies or any other person or entity
(collectively, the "Permits"), to own, lease and license its assets and
properties and conduct its business, all of which are valid and in full force
and effect, as described in the Registration Statement and the Prospectus,
except where the lack of such Permits would not have a Material Adverse Effect;
each of the Company and the Subsidiaries have fulfilled and performed in all
material respects all its material obligations with respect to such Permits and
no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the Company thereunder. Except as may be required under the
Securities Act and state and foreign Blue Sky laws, and except for such Permits
as have been obtained and are in full force and effect, no other Permits are
required to enter into, deliver and perform this Agreement and to consummate the
transactions contemplated by this Agreement.
(h) The Company and its Subsidiaries own, possess, license or have
other rights to use on reasonable terms, all material patents, patent
applications, trademarks, service marks, trademark and service xxxx
registrations, trade-names, copyrights, licenses, inventions, trade secrets,
technology, know-how and other intellectual property (collectively, the
"Intellectual Property") necessary for the conduct of their respective
businesses as now conducted or as proposed to be conducted as described in the
Prospectus. To the Company's best knowledge, there are no rights of third
parties to any such Intellectual Property and there is no material infringement
by third parties of any of the Intellectual Property. (I) Except as set forth in
the Prospectus under the caption "Business - Intellectual Property and
Proprietary Rights," there is no pending, or the Company's best knowledge,
threatened action, suit, proceeding or claim by others challenging the Company's
rights in or to any of the Intellectual Property, (ii) the Company is not aware
of any facts which would form a reasonable basis for any such claim by others
challenging the Company's rights in and to any of the Intellectual Property,
(iii) except as set forth in the Prospectus under the caption "Business
Intellectual Property and Proprietary Rights," there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and (iv) the
Company is not aware of any facts which would form a reasonable basis for any
such claim by others that the Company infringes or
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otherwise violates any patent, trademark, copyright, trade secret or other
property rights of others, and (iv) the Company is not aware of any facts which
would form a reasonable basis for any such claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other property rights of others.
(i) For purposes of this Agreement, "Date Data" means any date
information and any data that is derived from or dependent on date information;
"Date-Sensitive System" means any software, microcode, hardware (including
semiconductor devices, boards, and any other hardware), systems, components and
devices of any type (whether generally considered information technology or not)
with date-related functionality. "Process" means all functions, including but
not limited to accepting as input, calculating, sequencing, storing, displaying
and generating as output; or in the case of any date-related data, is in proper
format and accurate for all dates before, on and after January 1, 2000 (taking
into account leap year considerations). "Year 2000 Compliant" means (a) with
respect to Date Data, that such Data is in proper format and accurate for all
dates before, on and after January 1, 2000 (taking into account leap year
considerations); and (b) with respect to Date- Sensitive Systems, that each such
System correctly Processes all Date Data for all dates before, on, and after
January 1, 2000 (taking into account leap year considerations) without any loss
of functionality, interoperability or performance, and whether used on a
stand-alone basis or in combination with other software, hardware, systems,
components or devices that interface in a manner that is Year 2000 Compliant.
Except as disclosed in the Prospectus, all Date Data and Date- Sensitive Systems
that are either a product of the Company or the Subsidiaries, or are used in or
necessary for the business of the Company or the Subsidiaries, or which are in
development or on order by or for the Company or the Subsidiaries, are Year 2000
Compliant. Except as disclosed in the Prospectus, the Company and each of the
Subsidiaries has obtained written representations or assurances from each entity
that (i) provides material Date Data or Date-Sensitive Systems to the Company or
the Subsidiaries, (ii) Processes material Date Data for the Company or the
Subsidiaries, or (iii) otherwise provides any material product or service to the
Company or the Subsidiary that is dependent on Date Data or Date-Sensitive
Systems, that all of such entities' material Date Data and Date-Sensitive
Systems are Year 2000 Compliant.
(j) Neither the Company nor any of its subsidiaries owns any real
property; the Company and each of its Subsidiaries have good and marketable
title to all personal property described in the Prospectuses as being owned by
it. Any real property and buildings described in the Prospectuses as being held
under lease by the Company and the Subsidiaries are held by them under valid,
existing and enforceable leases, free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are described in the
Registration Statement and the Prospectus or would not have a Material Adverse
Effect.
(k) There are no legal or governmental proceedings to which the Company
or any of the Subsidiaries are subject or which is pending or, to the knowledge
of the Company, threatened, against the Company or any of the Subsidiaries,
which might affect the performance of this Agreement or the consummation of any
of the transactions contemplated hereby; except as described in the Prospectus,
there are no legal or governmental proceedings pending to which the Company
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or any of its Subsidiaries is a party or of which any property or assets of the
Company or any of its Subsidiaries is the subject which, if adversely determined
to the Company or any of its Subsidiaries, could reasonably be expected to,
individually or in aggregate, have a Material Adverse Effect; and, except as
described in the Prospectus, to the best of the Company's knowledge, no such
proceedings are threatened by governmental authorities or others.
(l) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described therein,
(a) there has not been any material adverse change with regard to the assets or
properties, business, results of operations or financial condition of the
Company and the Subsidiaries taken as a whole; (b) neither the Company nor any
of the Subsidiaries has sustained any loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree which would have a Material Adverse Effect; and (c) since the
date of the latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company nor any of the
Subsidiaries has (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except such liabilities or
obligations incurred in the ordinary course of business, (ii) entered into any
transaction not in the ordinary course of business or (iii) declared or paid any
dividend or made any distribution on any shares of its stock or redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or otherwise
acquire any shares of its stock.
(m) There is no document, contract or other agreement of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or
filed as required by the Securities Act or Rules. Each description of a
contract, document or other agreement in the Registration Statement and the
Prospectus fairly reflects in all material respects the terms of the underlying
document, contract or agreement. Each agreement described in the Registration
Statement and Prospectus or listed in the Exhibits to the Registration Statement
is in full force and effect and is valid and enforceable by and against the
Company or the Subsidiaries, as the case may be, in accordance with its terms.
Neither the Company nor any of the Subsidiaries, if any of the Subsidiaries is a
party, nor to the best of the knowledge of the Company or the Subsidiaries, or
any other party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would constitute such a
default, in any such case which default or event, individually or in the
aggregate, would have a Material Adverse Effect. No default exists, and no event
has occurred which with notice or lapse of time or both would constitute a
default, in the due performance and observance of any term, covenant or
condition, by the Company or any of the Subsidiaries, of any other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which it or its properties or business may be bound or affected which default or
event, individually or in the aggregate, would have a Material Adverse Effect.
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(n) Neither the Company nor any of the Subsidiaries is in violation of
any term or provision of any of its organizational documents; neither the
Company nor any of its Subsidiaries is in violation of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation, individually or in the aggregate, would have a
Material Adverse Effect.
(o) Neither the execution, delivery and performance of this Agreement
nor the consummation of any of the transactions contemplated hereby (including,
without limitation, the issuance and sale by the Company of the Shares) will
give rise to a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or require any consent or waiver under, or
result in the execution or imposition of any lien, charge or encumbrance upon
any properties or assets of the Company or any of the Subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company any of or the Subsidiaries is a party or by
which it or any of its properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation applicable
to the Company or any of the Subsidiaries or violate any provision of any
organizational document of the Company or any of the Subsidiaries, except for
such consents or waivers which have already been obtained and are in full force
and effect.
(p) The Company has authorized and outstanding share capital as set
forth under the caption "Capitalization" in the Prospectus. The certificates
evidencing the Shares are in due and proper legal form and the Firm Shares have
been duly authorized for issuance by the Company. All of the issued and
outstanding Ordinary Shares, have been duly and validly issued and are fully
paid and nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any Ordinary Shares of the
Company or any of the securities of the Subsidiaries or any such rights pursuant
to the Memorandum of Association or the Articles of Association or other
organizational documents of the Company or the certificate of incorporation or
by-laws or other organizational documents of any of the Subsidiaries or any
agreement or instrument to or by which the Company or any of the Subsidiaries is
a party or by which either of them is bound. The Shares, when issued and sold
pursuant to this Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any preemptive
rights, co-sale rights, rights of first refusal or other similar rights to
subscribe for or to purchase, or any restriction upon the voting or transfer of,
any securities of the Company pursuant to the Company's Memorandum of
Association, Articles of Association or other organizational documents or any
agreement or other instrument to which the Company or the Subsidiaries is a
party or by which either of them may be bound. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding option or
other right calling for the issuance of, and there is no commitment, plan or
arrangement to issue, any share capital of the Company or any of the
Subsidiaries or any security convertible into, or exercisable or exchangeable
for, such share capital. The Ordinary Shares conform in all material respects to
all statements in relation thereto contained in the Registration Statement and
the Prospectus. All outstanding shares of any of capital stock of the
Subsidiaries have been duly authorized and validly issued, and are fully paid
and nonassessable and
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are owned directly by the Company free and clear of any security interests,
liens, encumbrances, equities or claims, other than those described in the
Prospectus.
(q) No holder of any Security of the Company has the right to have any
security owned by such holder included in the Registration Statement or to
demand registration of any security owned by such holder during the period
ending 180 days after the date of this Agreement.
(r) Each shareholder of the Company has delivered to the
Representatives his or her or its enforceable written agreement (each, a
"Lock-Up Agreement"), in the form of Annex A hereto. Each such person or entity
subject to a Lock-Up Agreement has agreed to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of any
securities of the Company held by such person except in compliance with the
terms and conditions of such Lock-Up Agreement.
(s) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the Company. This Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (ii) to the extent that rights
to indemnity or contribution under this Agreement may be limited by Federal and
state or foreign securities laws or the public policy underlying such laws.
(t) Neither the Company nor any of the Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a Material Adverse Effect. The Company is
not aware of any existing or imminent labor disturbance by the employees of any
of its principal suppliers, subassemblers, agents, contractors or original
equipment manufacturers which would have a Material Adverse Effect. The Company
is not aware of any threatened or pending litigation between the Company or any
of the Subsidiaries, on one hand, and any of its executive officers, on the
other hand, which, if adversely determined, could have a Material Adverse
Effect, and no officer of the Company or any of the Subsidiaries has advised the
Company of a present intention to leave the employment of the Company or any of
the Subsidiaries.
(u) No transaction has occurred between or among the Company and any of
its officers or directors or five percent shareholders or any affiliate or
affiliates of any such officer or director or five percent shareholders that is
not described in the Registration Statement and the Prospectus that would have
been required to be described in the Registration Statement if the Registration
Statement had been prepared on Form S-1.
(v) Neither the Company nor any of the Subsidiaries has taken, or will
take, directly or indirectly, any action designed to or which might reasonably
be expected to cause or result in, or
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which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Ordinary Shares to facilitate
the sale or resale of any of the Shares.
(w) Each of the Company and its Subsidiaries has duly filed with the
appropriate taxing authorities all Tax Returns (as defined below) required to be
filed by any of them and such Tax Returns are each true, correct and complete;
and have paid all taxes shown thereon as due or claimed to be due, and no tax
deficiency has been asserted against the Company or any of its Subsidiaries. The
term "Tax Returns" means any report, return, application or other information
with respect to taxes required to be delivered by the Company or any of its
Subsidiaries to a taxing authority in Israel, the United States, European Union
or elsewhere (including any federal, state or local authorities), except for
such reports, returns, applications or other information the failure of which to
file, individually or in the aggregate, would not have a Material Adverse
Effect. The Company has not received any notice of proceedings relating to
revocation or modification of the "Approved Enterprise" status of any of the
Company's facilities which might jeopardize the Company's eligibility to receive
the benefits of "approved enterprise" status or any of the other benefits
described under the caption "Israeli Taxation" in the Prospectus.
(x) The Company does not have currently and has never had a permanent
establishment in the United States within the meaning of Article 5 of the
Convention Between the Government of the United States of America and the
Government of the State of Israel With Respect to Taxes on Income.
(y) The Shares have been duly authorized for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National Market
System, subject to official Notice of Issuance. A registration statement has
been filed on form 8-A pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), which registration statement complies in
all material respects with the Exchange Act.
(z) To the best of the Company's knowledge, no officer, director, or
shareholder of the Company has any affiliation or association with the NASD or
any member thereof
(aa) Except for stamp duty, and assuming that none of the Underwriters
is otherwise subject to taxation in Israel, the issuance, delivery and sale to
the Underwriters of the Shares to be sold by the Company are not subject to any
tax imposed by the State of Israel or any political subdivision thereof.
(bb) The books, records and accounts of the Company and each of the
Subsidiaries fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company
and each of the Subsidiaries, respectively. Each of the Company and the
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset
11
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(cc) Each of the Company and the Subsidiaries, including the directors
and officers of each of them, is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which they are engaged or propose to engage after
giving effect to the transactions described in the Prospectus; and neither the
Company nor any of the Subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse
Effect. Neither the Company nor any of the Subsidiaries has been denied any
insurance coverage which it has sought or for which it has applied.
(dd) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated required to be obtained or performed by the Company (except such
additional steps as may be required by the NASD or may be necessary to qualify
the Shares for public offering by the Underwriters under the state or foreign
securities or Blue Sky laws) has been obtained or made and is in full force and
effect.
(ee) Neither the Company nor any of its Subsidiaries currently is, and
the Company and the Subsidiaries will use their best efforts so that neither of
them will become, a personal holding company within the meaning of Section 542
of the Internal Revenue Code of 1986, as amended (the "Code") (a "PHC"), for its
current taxable year.
(ff) The Company is not, and upon the consummation of the transactions
described hereby and the application of the proceeds as described in the
Registration Statement under the caption "Use of Proceeds" will not become, a
Passive Foreign Investment Company ("PFIC") within the meaning of Section 1297
of the Code.
(gg) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of proceeds thereof as described in the
Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(hh) None of the Company, or any of its Subsidiaries or any other
person associated with or acting on behalf of the Company or any of the
Subsidiaries including, without limitation, any director, officer, agent or
employee of the Company or any of the Subsidiaries have, directly or indirectly,
while acting on behalf of the Company or the Subsidiaries (i) used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees
12
or to foreign or domestic political parties or campaigns from corporate funds;
(iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any other unlawful payment.
(ii) Subject to certain time limitations, an Israeli court may declare
a foreign civil judgment enforceable if it finds that the judgment was rendered
by a court which was, according to the laws of that state of the court,
competent to render the judgment; the judgment is no longer appealable; the
obligation imposed by the judgment is enforceable according to the rules
relating to enforceability of judgments in Israel and the substance of the
judgment is not contrary to public policy; and the judgment is executory in the
state in which it was given. A foreign judgment will not be declared enforceable
if it was given in a state whose laws do not provide for the enforcement of
judgments of Israeli courts (subject to exceptional cases) or if its enforcement
is likely to prejudice the sovereignty or security of the State of Israel. An
Israeli court also will not declare a foreign judgment enforceable if it is
proved to the Israeli court that (i) the judgment was obtained by fraud; (ii)
there was no due process; (iii) the judgment was rendered by a court not
competent to render it according to the laws of private international law in
Israel; (iv) the judgment is at variance with another judgment that was given in
the same matter between the same parties and which is still valid; or (v) at the
time the action was brought in the foreign court a suit in the same matter and
between the same parties was pending before a court or tribunal in Israel.
(jj) The Company and each of the Subsidiaries are in compliance in all
material respects with all conditions and requirements stipulated by the
instruments of approval granted to them with respect to the "Approved
Enterprise" status of any of the Company's facilities as well as with respect to
the other tax benefits received by the Company as set forth under the caption
"Israeli Taxation" in the Prospectus and by Israeli laws and regulations
relating to such "Approved Enterprise" status and the aforementioned other tax
benefits received by the Company; and the Company has not received any notice of
any proceeding or investigation relating to revocation or modification of any
"Approved Enterprise" status granted with respect to any of the Company's
facilities.
(kk) All holders of options to purchase Ordinary Shares of the Company
are subject to agreements whereby such holders have agreed substantially to the
following effect: that for a period of 180 days from the date of this Agreement
they will not directly or indirectly, sell or otherwise transfer, hypothecate,
pledge, grant or otherwise dispose of options (whether or not vested) or shares
issued as a result of exercise of options, without the prior written consent of
the Company or the Underwriters (the "Option Agreement Lock-Up"). The Option
Agreement Lock-Up constitutes a legal, valid and binding obligation of the
parties thereto enforceable against such parties in accordance with its terms.
(ll) The Company has not distributed and will not distribute prior to
the completion of the distribution of the Shares, any offering material in
connection with the offering and sale of the Shares other than any Preliminary
Prospectuses, the Prospectus, the Registration Statement and other materials, if
any, permitted by the Act.
13
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective
shall have been received by the Underwriters and the Prospectus shall have been
timely filed with the Commission in accordance with Section 6(a) of this
Agreement.
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus shall have been or shall be in effect and no order
suspending the effectiveness of the Registration Statement or the ISA Exemption
shall be in effect and no proceedings for such purpose shall be pending before
or threatened by the Commission or the ISA, and any requests for additional
information on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Commission and the Underwriters.
(c) The representations and warranties of the Company contained in this
Agreement and in the certificates delivered pursuant to Section 5(e) shall be
true and correct when made and on and as of each Closing Date as if made on such
date and the Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing Date.
(d) No Underwriter shall have been advised by the Company or any of the
Subsidiaries or shall have discovered and disclosed to the Company that the
Registration Statement, or the Prospectus or any amendment or supplement
thereto, contains an untrue statement of fact which in the opinion of counsel to
the Underwriters, is material, or omits to state a fact which, in the opinion of
counsel to the Underwriters, is material and is required to be stated therein or
is necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(e) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date, of
the chief executive or chief operating officer and the chief financial officer
or chief accounting officer of the Company to the effect that (i) the signers of
such certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and warranties of the
Company in this Agreement are true and correct on and as of such Closing Date
with the same effect as if made on such Closing Date and the Company has
performed all covenants and agreements and satisfied all conditions contained in
this Agreement required to be performed or satisfied by it at or prior to such
Closing Date, and (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and to the best of their knowledge, no
proceedings for that purpose have been instituted or are pending under the
Securities Act.
(f) The Representatives shall have received, at the time this Agreement
is executed and on each Closing Date, a signed letter from each of Xxxxxxxxx
Xxxx Tevet and Xxxxxxx X. Xxxxxx &
14
Company, LLP, addressed to the Representatives, and dated, respectively, the
date of this Agreement and each such Closing Date, in form and substance
reasonably satisfactory to the Representatives confirming that they are
independent accountants within the meaning of the Securities Act and the Rules,
that the response to Item 10 of Form F-1 on which the Registration Statement was
prepared is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statement and the Prospectus and reported on by them comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules;
(ii) that Company officials having advised them that
no consolidated financial statements as of any date subsequent
to December 31, 1999 are available on the basis of a reading
of the minutes of the meetings of the shareholders and
directors of the Company, and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company as to transactions and
events subsequent to the date of the latest audited financial
statements, except as disclosed in the Registration Statement
and the Prospectus, nothing came to their attention which
caused them to believe that with respect to the Company, there
was, at a specified date not more than five business days
prior to the date of the letter, any changes in capital stock
or any increases in long-term debt of the Company or any
decreases in working capital or shareholders' equity in the
Company, as compared with the amounts shown on the Company's
audited balance sheet as December 31, 1999 included in the
Registration Statement, or for the period from January 1, 2000
to a date not more than five business days prior to the date
of the letter there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
net sales or in the total or per-share amounts of net income;
(iii) they have performed certain other procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter, as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the
Prospectus and reasonably specified by the Representatives,
including the amounts in "Summary Consolidated Financial
Data," "Selected Consolidated Financial Data,"
"Capitalization" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations," agree with the
corresponding amounts in the audited and unaudited financial
statements from which such amounts were derived; or agrees
with the accounting records of the Company;
15
References to the Registration Statement and the
Prospectus in this paragraph (f) are to such documents as
amended and supplemented at the date of the letter.
(g) The Representatives shall have received on each Closing Date from
Shiboleth, Yisrael, Xxxxxxx Xxxxxx & Co., Israeli counsel for the Company, an
opinion, addressed to the Representatives and dated such Closing Date, in form
and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is
validly existing as a company under the laws of Israel, with
all requisite corporate power and authority to own or lease
its properties and conduct its business as described in the
Prospectus. No proceeding has been instituted by the Registrar
of Companies in Israel for the dissolution of the Company.
(ii) The {8,130,501} shares of capital stock shown by
the Company's Shareholders' Registry as being issued and
outstanding immediately prior to the date hereof are
consistent with the Company's authorized and issued share
capital as set forth in the Registration Statement and the
Prospectus under the caption "Description of Share Capital";
the certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by the
Company; all of the outstanding Ordinary Shares have been, and
the Shares to be sold by the Company, upon issuance and
payment therefor in the manner herein described will be, duly
and validly authorized and issued, fully paid and
nonassessable, and none of them was issued in violation of any
preemptive or other similar right. To the best of such
counsel's knowledge there are no preemptive or other rights to
subscribe for or to purchase, or any rights to require the
Company to register, the Shares, or any restriction upon the
voting or transfer of any Ordinary Shares pursuant to the
Memorandum of Association, the Articles of Association or
other organizational documents of the Company or any
agreements or other instruments to which the Company is a
party or by which it is bound. To the best of such counsel's
knowl edge, except as disclosed in the Registration Statement
and the Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and no commitment,
plan or arrangement to issue, any share capital of the Company
or any security convertible into, exercisable for or
exchangeable for shares of the Company. Except as disclosed in
the Registration Statement and the Prospectus, to such
counsel's best knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Shares
as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or
relating to the registration of the Ordinary Shares or other
securities of the Company. The Ordinary Shares and the Shares
conform in all material respects to the respective description
thereof contained in the Registration Statement and the
Prospectus. The Company has all requisite corporate power and
authority to issue and sell the Shares to be sold by it in
accordance with and upon the terms and conditions set forth in
this
16
Agreement and in the Prospectus. All corporate action required
to be taken by the Company for the due and proper
authorization, issuance and sale of the Shares to be sold by
it has been duly and validly taken.
(iii) Upon issuance of the Shares to be sold by the
Company and payment therefor in accordance with the terms of
this Agreement, insofar as concerns the laws of Israel, the
Underwriters will receive good and valid title to the Shares
being sold by the Company hereunder, free and clear of any
lien, charge, claim, encumbrance, security interest,
restriction on transfer, shareholders' agreement, voting trust
and other defect of title of any nature whatsoever.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery
thereof by the Underwriters) constitutes a legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms except (a) as such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights and
remedies generally and by general principles of equity and (b)
to the extent that rights to indemnification and contribution
thereunder may be limited by Israeli or United States Federal
and state securities laws or public policy relating thereto.
(v) Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions
contemplated hereby by the Company (including, without
limitation, the issuance and sale by the Company of the
Shares) will give rise to a right to terminate or accelerate
the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or
constitute a default (or any event which with notice or lapse
of time, or both, would constitute a default) under, or
require consent or waiver under, or result in the execution or
imposition of any lien, charge, claim, encumbrance, security
interest or restriction whatsoever upon any property or asset
of the Company pursuant to the terms of any indenture,
mortgage, deed, trust, note or other agreement or instrument
of which such counsel is aware and to which the Company is a
party, or any franchise, license, permit, judgment, decree,
order statute, rule or regulation of which such counsel is
aware or violate any provision of the Memorandum of
Association or the Articles of Association or other
organizational documents of the Company.
(vi) Such counsel is not aware that the Company is in
violation of any term or provision of its Memorandum of
Association or its Articles of Association or its other
organizational documents.
(vii) The Registration Statement and the Prospectus
and their respective filings with the Commission and, to the
extent required, with the appropriate
17
authorities in Israel, have been duly authorized by and on
behalf of the Company and the Registration Statement has been
duly executed pursuant to such authorization in accordance
with Israeli law, by and on behalf of the Company.
(viii) The Company has obtained all necessary
governmental and regulatory authorizations, consents and
exemptions in Israel for the execution, delivery and
performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated
hereby (including, but not limited to, the issuance and sale
of the Shares as contemplated by this Agreement). Such counsel
is not aware that proceedings to rescind or modify such
authorizations, permits, consents and exemptions have been
instituted or that any are pending or contem plated by any
Israeli authority; the ISA Exemption in connection with the
offering contemplated by the Registration Statement has been
granted; and no consent, approval, authorization or order of,
or filing with, any court or governmental agency in Israel is
required for the consummation of the transactions contemplated
by this Agreement except for those which have been obtained
and except for the obligation to file certain information
concerning offerees of the Shares in Israel with the ISA.
(ix) To the best knowledge of such counsel, the
Company is not a party to or bound by any shareholders'
agreements or voting trusts with respect to any securities of
the Company.
(x) The statements in the Prospectus, insofar as such
statements refer to the Memorandum of Association or the
Articles of Association or other organiza tional documents of
the Company, and contracts, indentures, mortgages, loan
agreements, notes, leases, joint ventures and other
agreements, arrangements or instruments to which the Company
is a party, are fair summaries in all material respects, and
insofar as such statements refer to statements of Israeli law
or legal conclusions, have been reviewed by such counsel and
are accurate in all material respects. The statements in the
Registration Statement and the Prospectus describing Israeli
laws and regulations are fair summaries, in all material
respects, of the information set forth therein.
(xi) All licenses, approvals or permits described in
the Prospectus as having been issued by any Israeli authority,
have been duly issued and, to the knowledge of such counsel,
have not been rescinded or modified and are in full force and
effect; such counsel is not aware that any proceedings to
rescind or modify such licenses, approvals or permits have
been instituted and are pending or threatened by any Israeli
authority; and under exchange control regulations currently in
effect there are no authorizations or consents required from
any governmental or regulatory body in Israel to give
nonresidents of Israel the rights to freely repatriate to
non-Israel currency all amounts received with respect to
Ordinary Shares that were purchased
18
with non-Israel currency, whether as a dividend, as a
liquidating distribution or as proceeds from the sale of such
shares, subject to applicable tax withholding.
(xii) To the best of such counsel's knowledge, the
Company does not own any interest in real property. To the
best of such counsel's knowledge, any real property and
building held under lease by the Company are held by it under
valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings.
(xiii) To the best of such counsel's knowledge,
except as disclosed in the Registration Statement and the
Prospectus there is no litigation or governmental or other
proceeding or investigation, pending or threatened before any
court or before any public body or board in Israel to which
the Company or any of its Subsidiaries is or may be a party
that is material to the Company or any of its Subsidiaries,
taken as a whole, or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance of the
Shares or the execution and delivery of this Agreement or any
of the other transactions contemplated hereby, or that
questions the legality or validity of any of such transactions
or that seeks to recover damages or obtain other relief in
connection with any of such transactions, or that has a
significant likelihood of materially and adversely affecting
the ability of the Company to perform its obligations under
this Agreement or the business, financial condition or results
of operations of the Company or any of its Subsidiaries, taken
as a whole.
(xiv) The statements in the Prospectus under the
captions "Risk Factors - Risks Relating to Our Operations in
Israel" (relating to Israeli government programs and
enforcement of U.S. judgments), "Enforceability of Civil
Liabilities" "Descrip tion of Ordinary Shares," "Management,"
and "Certain Related Transactions," insofar as such statements
constitute a summary of documents referred to therein or
matters of Israeli law, fairly summarize such documents and
matters in all material respects.
(xv) Except for the Israeli stamp duty and assuming
that none of the Underwriters is otherwise subject to taxation
in Israel, the issuance and sale to the Underwriters of the
Shares to be sold by the Company hereunder are not subject to
any tax imposed by Israel or any political subdivision
thereof.
(xvi) As provided in Section 11 of this Agreement,
the Company has duly and irrevocably appointed Camtek USA,
Inc. ("Camtek USA"), as its agent to receive service of
process in any action against it in any Federal or state court
sitting in the county of New York arising out of or in
connection with the public offering.
19
(xvii) Under the laws of Israel, the Company's
designation of any Federal or state court sitting in the
county of New York for any action to be brought by the Company
against the Underwriters in relation to this Agreement, and
the designation of the law of the State of New York to apply
to this Agreement is binding upon the Company and, if properly
brought to the attention of the court in accordance with the
laws of Israel, would be enforceable in any judicial
proceeding in Israel, except as such enforceability may be
limited by applicable general principles of equity and/or
public policy.
(xviii) Subject to certain time limitations, an
Israeli court may declare a foreign civil judgment enforceable
if it finds that the judgment was rendered by a court which
was, according to the laws of that state of the court,
competent to render the judgment; the judgment is no longer
appealable; the obligation imposed by the judgment is
enforceable according to the rules relating to enforceability
of judgments in Israel and the substance of the judgement is
not contrary to public policy; and the judgment is executory
in the state in which it was given. A foreign judgment will
not be declared enforceable if it was given in a state whose
laws do not provide for the enforcement of judgments of
Israeli courts (subject to exceptional cases) or if its
enforcement is likely to prejudice the sovereignty or security
of the State of Israel. An Israeli court also will not declare
a foreign judgment enforceable if it is proved to the Israeli
court that (i) the judgment was obtained by fraud; (ii) there
was no due process; (iii) the judgment was rendered by a court
not competent to render it according to the laws of private
international law in Israel; (iv) the judgment is at variance
with another judgment that was given in the same matter
between the same parties and which is still valid; or (v) at
the time the action was brought in the foreign court a suit in
the same matter and between the same parties was pending
before a court or tribunal in Israel.
In addition, such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the Underwriters and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified in
the foregoing opinions), on the basis of the foregoing, no facts have
come to the attention of such counsel which lead such counsel to
believe that the Registration Statement at the time it became effective
(except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel
need express no belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus as amended or supplemented (except with respect to the
financial statements, notes and schedules thereto and other financial
data, as to which such counsel need make no statement) on the date
20
thereof contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(h) The Representatives shall have received on each Closing Date
from Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP, United States counsel to the Company,
an opinion addressed to the Representatives and dated such Closing Date, in
form and substance satisfactory to counsel for the Representatives, to the
effect that:
(i) The Company is duly qualified to do business as a
foreign corporation and is in good standing in each United
States jurisdiction in which the character of the business
conducted by it or the location of the properties owned,
leased or licensed by it requires such qualification, except
for such jurisdictions where the failure to so qualify would
not have a Material Adverse Effect on the business, financial
condition or results of operations of the Company.
(ii) Camtek USA has been duly incorporated and is
validly existing as a corporation under the laws of the State
of New Jersey, with full corporate power and authority to own
or lease its properties and conduct its business as is
currently conducted. Camtek USA is duly qualified to do
business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business
conducted by it or the location of the properties owned,
leased or licensed by it requires such qualification, except
for such jurisdictions where the failure to so qualify would
not have a Material Adverse Effect.
(iii) The issued and outstanding shares of capital
stock of the Camtek USA have been duly authorized and validly
issued, are fully paid and nonassessable and are directly
owned of record by the Company free and clear of any perfected
security interest or, to the knowledge of such counsel, any
other security interests, liens, encumbrances, equities or
claims, other than those described in the Registration
Statement and the Prospectus.
(iv) To the extent governed by New York law, this
Agreement has been duly executed and delivered by the Company,
and assuming the due authorization, execution and delivery of
this Agreement by the Underwriters, this Agreement constitutes
the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to
the extent that (A) enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect
relating to creditors, rights generally and (2) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (B) except
as any rights to indemnity and contribution may be limited by
United States Federal or state securities laws and public
policy considerations.
21
(v) To the best of such counsel's knowledge, Camtek
USA is not in violation of any term or provision of its
certificate of incorporation or by-laws, or any franchise,
license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would
have a Material Adverse Effect.
(vi) To the best of such counsel's knowledge, there
are no legal or governmental proceedings, pending or
threatened to which the Company or any of its Subsidiaries is
or may be a party or of which the business or property of the
Company or any of its Subsidiaries is or may be subject which
is required to be disclosed in the Registration Statement and
the Prospectus or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance of the
Shares by the Company or the execution and delivery of this
Agreement or any of the other transactions contemplated
hereby, or that questions the legality or validity of any of
such transactions or that seeks to recover damages or obtain
other relief in connection with any of such transactions.
(vii) No Governmental Approval (as defined below)
which has not been obtained or taken and is not in full force
and effect, is required to authorize or is required in
connection with the execution, delivery or performance of this
Agree ment.
(viii) Neither the execution, delivery or performance
by the Company of its obligations under this Agreement nor the
compliance by the Company with the terms and provisions hereof
conflicts with any provision of Camtek USA's certificate of
incorporation or by-laws.
(ix) To the best of such counsel's knowledge, the
performance of the Company's obligations under this Agreement
do not and will not violate, conflict with or constitute a
default under any Applicable Contract (as defined below) to
which the Company or any of its Subsidiaries is a party, or by
which any of their respective properties are subject.
(x) To the best of such counsel's knowledge, the
execution, delivery and performance by the Company of this
Agreement and the compliance by the Company with the terms and
provisions hereof will not contravene any provision of any
Applicable Law (as defined below).
(xi) Neither the execution or delivery of this
Agreement or performance by the Company of its obligations
under this Agreement nor compliance by the Company with the
terms thereof will contravene any applicable order or decree
of Governmental Authorities (as defined below) against the
Company.
22
(xii) The Registration Statement, as of the Effective
Date, and the Prospectus, as of its date, each appeared on its
face to have been appropriately responsive in all material
respects to the requirements of the Securities Act and the
Rules, except that, such counsel need not: (i) express any
opinion as to the financial statements and related notes,
schedules and other financial and accounting data included in
or excluded from the Registration Statement or the Prospectus
or (ii) assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (other than the
sections thereof referred to in paragraph (xvi) below). Any
required filing of the Prospectus and any supplement thereto
pursuant to rule 424(b) under the Securities Act has been made
in the manner and within the time period required by such Rule
424(b).
(xiii) To the best of such counsel's knowledge there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other agreements, instruments or other
documents required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration
Statement which are not so described or referred to or filed
as required.
(xiv) The Shares have been approved for listing on
the Nasdaq National Market.
(xv) The Company is not an "investment company" or an
entity controlled by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(xvi) Such counsel has reviewed the statements made
in the Prospectus under the captions "Shares Eligible for
Future Sale" and "U.S. Tax Considerations Regarding Shares
Acquired by U.S. Taxpayers," and to the extent that they
constitute matters of law or legal conclusions, they fairly
present the information disclosed therein in all material
respects.
(xvii) Such counsel has been advised telephonically
by the staff of the Commission that the Registration Statement
has been declared effective under the Securities Act and the
Rules and, to such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending by the Commission.
(xviii) Such counsel has participated in conferences
with directors, officers and other representatives of the
Company, representatives of the independent certified public
accountants for the Company, representatives of Israeli
counsel to the Company, representatives of the Underwriters
and representatives of counsel for the
23
Underwriters, at which conferences the contents of the
Registration Statement, the Prospectus and related matters
were discussed and, although such counsel is not passing upon
and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has not made any
independent check or verification thereof (except with respect
to the statements made under the caption "U.S. Tax
Considerations Regarding Shares Acquired by U.S. Taxpayers"
and "Shares Eligible for Future Sale" to the extent, and only
to the extent referred to in paragraph (xvi) above), on the
basis of the foregoing, no facts have come to such counsel's
attention that have caused such counsel to believe that (a)
the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements contained therein, or (b) the
Prospectus, as of its date and as of the date of their
opinion, contained or will contain an untrue statement of a
material fact or omitted or will 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,
except that such counsel does not express any opinion or
belief with respect to the financial statements and related
notes, schedules and other financial and accounting data
included in or excluded from the Registration Statement or the
Prospectus.
(xix) As provided in Section 11 of this Agreement,
the Company has duly and irrevocably appointed Camtek USA as
its agent to receive service process in any action against it
in any Federal or state court sitting in the county of New
York arising out of or in connection with the offering.
Unless otherwise indicated, references to (i) "Applicable
Laws" shall mean laws, rules and regulations of the States of New York
and of the United States of America which, in such counsel's
experience, are applicable to companies of the type of the Company and
transactions of the kind contemplated by this Agreement (except for
United States, state and foreign securities or Blue Sky laws,
anti-fraud laws and the rules and regulations of the National
Association of Securities Dealers, Inc.) but without such counsel
having made any investigation regarding any other laws; (ii) the term
"Governmental Authorities" means any New York or Federal executive,
legislative, judicial, administrative or regulatory body established
under Applicable Laws; (iii) the term "Governmental Approval" means any
consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws except for such permits and similar authorizations as
may be required under applicable state securities or "Blue Sky" laws;
(iv) the term "Applicable Contracts" means those agreements or
instruments relating to borrowed money or otherwise deemed by the
Company to be material to the business, financial condition or results
of operations of the Company and the Subsidiaries taken as a whole.
24
(i) The Representatives shall have received on each Closing Date from
counsel reasonably satisfactory to the Representatives, opinions addressed to
the Representatives and dated such Closing Date with respect to Camtek (Europe)
S.A. and Camtek (Taiwan) Ltd., (each, the "Subsidiary") substantially the
following form:
(i) The Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the
State of jurisdiction of its incorporation and has the
corporate power and authority to own its property and to
conduct its business.
(ii) The Subsidiary has all requisite corporate power
and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies (collectively, the
"Permits"), to own, lease and license its assets and
properties and conduct its business, all of which are valid
and in full force and effect.
(iii) To the best knowledge of such counsel, there
are no litigation or governmental proceedings to which the
Subsidiary is subject or which is pending or, to the knowledge
of the such counsel, threatened, against the Subsidiary.
(iv) All outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly issued, and
are fully paid and nonassessable and are owned directly by the
Company or by another wholly-owned subsidiary of the Company.
(j) The Representatives shall have received on each Closing Date from
each of Xxxxxxx Behar, Chen & Co., Israeli counsel for the Underwriters, and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, U.S. counsel for the Underwriters, an
opinion addressed to the Representatives and dated such Closing Date, with
respect to the matters as the Underwriters may reasonably request, and such
counsel shall have received such documents and information as they reasonably
request to enable them to pass upon such matters.
(k) The Representatives shall have received executed Lock-Up
Agreements, in the form and from each person contemplated in Section 4(r) of
this Agreement.
(l) All proceedings taken in connection with the sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and substance to
the Representatives and their counsel.
(m) The Company shall have furnished or caused to be furnished to the
Underwriters such further certificates or documents as the Underwriters shall
have reasonably requested.
6. COVENANTS OF THE COMPANY.
25
(a) The Company covenants and agrees as follows:
(i) The Company shall prepare the Prospectus in a
form approved by the Representatives and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later
than the Commission's close of business on the second business
day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act.
(ii) The Company shall promptly advise the
Representatives in writing (i) when any amendment to the
Registration Statement shall have become effective, (ii) of
any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) of the prevention or suspension of the use
of any Preliminary Prospectus or the Prospectus or of the
issuance by the Commission or any other regulatory body,
foreign or domestic, of any stop order suspending the
effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (iv) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or amendment or
supplement to the Prospectus unless the Company has furnished
the Representatives a copy for its review prior to filing and
shall not file any such proposed amendment or supplement to
which the Representa tives reasonably object. The Company
shall use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(iii) The Company shall prepare and file with the
Commission, promptly upon the Representatives' reasonable
request, any amendment or supplement to the Registration
Statement or the Prospectus which, in the reasonable opinion
of Underwriters' counsel, may be necessary or advisable in
connection with the distribution of the Shares.
(iv) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Securities
Act and the Rules, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any
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, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Securities Act or the Rules,
the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii)
of this Section 7(a), an amendment or supplement which shall
correct such statement or omission or an amendment which shall
effect such compliance.
26
(v) The Company shall make generally available to its
security holders and to the Underwriters as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date occurs (or 90 days
if such 12-month period coincides with the Company's fiscal
year), an earning statement (which need not be audited) of the
Company, covering such 12-month period, which shall satisfy
the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(vi) The Company shall furnish to the Representatives
and counsel for the Underwriters, without charge, signed
copies of the Registration Statement (including all exhibits
thereto and amendments thereof) and to each other Underwriter
a copy of the Registration Statement (without exhibits
thereto) and all amendments thereof and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by
the Securities Act or the Rules, as many copies of any
Preliminary Prospectus and the Prospectus and any amendments
thereof and supplements thereto as the Representatives may
reasonably request.
(vii) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify
the Shares for offer and sale in connection with the offering
under the laws of such jurisdictions as the Representatives
may designate (including such jurisdictions as may be required
for the offering and sale of the Directed Shares) and shall
maintain such qualifications in effect so long as required for
the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to
execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business
in any jurisdiction.
(viii) For a period of five years after the date of
this Agreement, the Company shall supply to the Underwriters,
and to each other Underwriter who may so request in writing,
copies of such financial statements and other periodic and
special reports as the Company may from time to time
distribute generally to the holders of any class of its share
capital and to furnish to the Underwriters a copy of each
annual or other report it shall be required to file with the
Commission.
(ix) Without the prior written consent of CIBC World
Markets Corp., for a period of 180 days after the date of this
Agreement, the Company shall not issue, sell or register with
the Commission (other than on Form S-8 or any successor form)
or otherwise dispose of, directly or indirectly, any equity
securities of the Company (or any securities convertible into,
exercisable for or exchangeable for equity securities of the
Company), except for the sale of the Shares pursuant to the
Registration Statement and the issuance of shares pursuant to
the Company's existing stock option plan or bonus plan as
described in the Registration Statement and the Prospectus. In
the event that during this period, (i) any shares are issued
pursuant to
27
the Company's existing stock option plans or bonus plan that
are exercisable during such 180 day period or (ii) any
registration is effected on Form S-8 or on any successor form
relating to shares that are exercisable during such 180
period, the Company shall obtain the written agreement of such
grantee or purchaser or holder of such registered securities
that, for a period of 180 days after the date of this
Agreement, such person will not, without the prior written
consent of CIBC World Markets Corp., offer for sale, sell,
distribute, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or exercise any
registration rights with respect to, any Ordinary Shares (or
any securities convertible into, exercisable for, or
exchangeable for any Ordinary Shares) owned by such person.
(x) On or before completion of this offering, the
Company shall make all filings required under applicable
securities laws and by the Nasdaq National Market.
(xi) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(xii) If any payment of any sum due under this
Agreement from the Company is made to or received by the
Underwriters or any controlling person of any Underwriter in a
currency other than freely transferable United States dollars,
whether by judicial judgment or otherwise, the obligations of
the Company under this Agreement shall be discharged only to
the extent of the net amount of freely transferable United
States dollars that the Underwriters or such controlling
persons, as the case may be, in accordance with normal bank
procedures, are able to lawfully purchase with such amount of
such other currency on the date of payment. To the extent that
the Underwriters or such controlling persons are not able to
purchase sufficient United States dollars with such amount of
such other currency on the date of payment to discharge the
obligations of the Company, as the case may be, to the
Underwriters or such controlling persons, the obligations of
the Company, as the case may be, to the Underwriters or such
controlling persons, as the case may be, shall not be
discharged with respect to such difference, and any such
undischarged amount will be due as a separate obligation and
shall not be affected by payment of or judgment being obtained
for any other sums due under or in respect of this Agreement.
To the extent that the Underwriters or such controlling
persons receive any payment with respect to such separate
obligation in freely transferable United States dollars (or
currency that can be used to purchase freely transferable
United States dollars in the manner set forth above), the
Underwriters or such controlling persons, as the case may be,
will return to the Company, as the case may be, a
corresponding amount of the other currency.
(xiii) The Company will manage its business so as to
avoid, to the extent consistent with its other business goals,
the Company or any of the Subsidiaries becoming a PHC or the
Company becoming a PFIC. If the Company is a PFIC for
28
any taxable year, it will promptly inform all its shareholders
who are United States persons (as defined in Section
7701(a)(30) of the Code) of such status, and make available to
such shareholders, on a timely basis, all information
necessary to permit them to make a Qualified Electing Fund
election under Section 1295 of the Code.
(xiv) The Company and each of its Subsidiaries shall
duly file all Tax Returns required to be filed and shall pay
all taxes due to any tax authorities.
(xv) Without limiting the generality of the
foregoing, the Company and each of its Subsidiaries shall file
United States federal, and any state and local Tax Returns
required to be filed, for all taxable years in which the
Company or its Subsidiaries operate or operated in the United
States and shall pay all taxes, interest and penalties owed to
the relevant tax authorities in connection with the filing of
such Tax Returns.
(xvi) For the taxable year ending on December 31,
2000 and all subsequent taxable years, the Company shall use
its best efforts to the extent consistent with its business
goals to ensure that the Company is not considered to be
engaged in a United States trade or business and does not have
a permanent establishment for United States federal income tax
purposes.
(xvii) For a period of 180 days from the date of this
Agreement, the Company shall neither waive the Option
Agreement Lock-Up or otherwise agree or consent to the
transfer or sale of the securities subject to such Option
Agreement Lock-Up without the written consent of CIBC World
Markets.
(b) The Company agrees to pay, or reimburse if paid by the
Underwriters, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each Preliminary Prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and the
printing, filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(a)(vii), including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and the
preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs of
shipping and mailing) to the Underwriters of copies of each Preliminary
Prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the NASD in connection with its review of the terms of the public
29
offering; (vi) the furnishing (including costs of shipping and mailing) to the
Underwriters of copies of all reports and information required by Section 6(a);
(vii) inclusion of the Shares for quotation on the Nasdaq National Market; and
(viii) all transfer and Stamp taxes, if any, with respect to the sale and
delivery of the Shares by the Company to the Underwriters. Subject to the
provisions of Section 7, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
(c) The Company covenants and agrees with the several Underwriters that
in any suit (whether in a court in the United States, the State of Israel or
elsewhere) seeking enforcement of this Agreement, (i) no defense (other than a
procedural defense) given or allowed by the laws of any other state or country
shall be interposed in any suit, action or proceeding hereon unless such defense
is also given or allowed by the laws of the State of New York or of the United
States, (ii) if the plaintiffs thereon seek that a judgment otherwise awarded to
the plaintiffs be awarded in either United States dollars or Israeli currency,
subject to Israeli foreign currency control regulations, the Company will not
interpose any defense or objection to or otherwise oppose the award of a
judgment, if any, in such currencies except to the extent that such a judgment
would violate the laws of the State of Israel, and (iii) if the plaintiffs
therein seek to have any judgment (or any aspect thereof) awarded in Israeli
currency linked, for the period from entry of such judgment until actual payment
thereof in full has been made, to changes in the United States dollar exchange
rate with respect to the currency of the State of Israel, the Company will not
interpose any defense or objection to or otherwise oppose inclusion of such
linkage in any such judgment except to the extent that such a judgment would
violate the laws of the State of Israel. The Company agrees that it will not
initiate or seek to initiate any action, suit or proceeding, in Israel or in any
other jurisdiction other than in the United States, seeking damages or for the
purpose of obtaining any injunction or declaratory judgment against the
enforcement of, or declaratory judgment concerning any alleged breach by the
Company of, or other claim by the Underwriters in respect of, this Agreement or
any of the Underwriters' rights under this Agreement, including, without
limitation, any action, suit or proceeding challenging the enforceability of or
seeking to invalidate in any respect the submission by the Company hereunder to
the jurisdiction of Federal or New York state courts or the designation of the
laws of the State of New York as the law applicable to this Agreement.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims,
30
damages or liabilities arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or in any Blue Sky application or other
information or other documents executed by the Company filed in any state or
other jurisdiction to qualify any or all of the Shares under the securities laws
thereof (any such application, document or information being hereinafter
referred to as a "Blue Sky Application") or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (ii)
in whole or in part upon any breach of the representations and warranties set
forth in Section 4 hereof, or (iii) in whole or in part upon any failure of the
Company to perform any of its obligations hereunder or under law and will
reimburse each Underwriter and each such person for any legal and other expenses
as such expenses are reasonably incurred by such Underwriter or such person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
such indemnity shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue statement or
omission was made in such Preliminary Prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement thereto or any Blue Sky
Application, in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters specifically for use therein. It
being understood that the only information so furnished by the Underwriters was
(i) the dealer concession and reallowance amounts contained under the caption
"Underwriting" in the Prospectus, (ii) the paragraph in such section related to
discretionary sales, and (iii) the information contained in the fifth to last
and last paragraphs of such section. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
In addition, the Company agrees to indemnify and hold harmless
the Representatives and each person, if any, who controls any Representative
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages, expenses and
liabilities (including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) (i) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) arising out of or based upon the failure of any Participant to
pay for and accept delivery of Directed Shares otherwise reserved for such
Participant pursuant to the Directed Share Program, and (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of the Representatives.
31
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company, and each officer of the Company who
signs the Registration Statement, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, in
reliance up on and in conformity with information furnished in writing to the
Company by the Underwriters specifically for use therein as specified in the
preceding paragraph (b), provided, however, that the obligation of each
Underwriter to indemnify the Company (including any controlling person, director
or officer thereof) shall be limited to the underwriting discounts and
commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section 7 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in this
Section 7 shall be available to any party who shall fail to give notice as
provided in this Section 7 if the party to whom notice was not given was unaware
of the proceeding to which such notice would have related and was materially
prejudiced by the failure to give such notice but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve it
from any liability that it may have to any indemnified party for contribution or
otherwise than under this Section 7. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in writing
by the indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense (including but
not limited to, the existence of defenses available to it or them different from
or additional to those available to the indemnifying party) of such action (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party) or (iii) the
indemnifying parties shall not have employed counsel or shall not have employed
counsel reasonably satisfactory to the indemnified parties to assume the defense
of such action within a reasonable time after notice of the commencement
thereof, in each of which cases the fees and
32
expenses of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action, suit,
proceeding or claim effected without its written consent, which consent shall
not be unreasonably withheld or delayed.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b), then each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by any person entitled hereunder
to contribution from any person who may be liable for contribution) to which the
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on one hand and the Underwriters
on the other shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to (y) the underwriting discounts received by the
Underwriters, as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company or the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact related to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8, (i) in no case shall any Underwriter (except as may be provided in the
Agreement Among Underwriters) be liable or responsible for any amount in excess
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder; and (ii) the Company shall be liable and responsible for
any amount in excess of such underwriting discount; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, each officer of the Company who shall
have signed the Registration
33
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) in the
immediately preceding sentence of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 8,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section 8. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in proportion
to their respective underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect
to the Shares to be purchased on a Closing Date by the Representatives by
notifying the Company at any time
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or international
event or act or occurrence has materially disrupted, or in the opinion of the
Representatives will in the future materially disrupt, the securities markets;
(ii) if the United States or the State of Israel becomes engaged in hostilities,
or an escalation of hostilities involving the United States or the State of
Israel occurs, or the United States or the State of Israel declares a national
emergency or war or if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, inadvisable to proceed with the offering; (iii) if there
shall be such a material adverse change in general financial, political or
economic conditions or the effect of international conditions on the financial
markets in the United States or the State of Israel is such as to make it, in
the judgment of the Representatives, inadvisable or impracticable to market the
Shares; (iv) if trading in the Shares has been suspended by the Commission or
trading generally on the New York Stock Exchange, Inc., on the American Stock
Exchange, Inc. or the Nasdaq National Market has been suspended or limited, or
minimum or maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said exchanges
or by order of the Commission, the National Association of Securities Dealers,
Inc., or any other governmental or regulatory authority; or (v) if a banking
moratorium has been declared by any state, Federal or Israeli authority; or (vi)
if, in the judgment of the Representatives, there has occurred a Material
Adverse Effect, or
(b) at or before any Closing Date, that any of the conditions specified
in Section 5 shall not have been fulfilled when and as required by this
Agreement.
If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any Underwriter, and
no Underwriter shall not be under any liability to the Company, except that (y)
if this Agreement is terminated by the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket
34
expenses (including the reasonable fees and disbursements of their counsel)
incurred by them in connection with the proposed purchase and sale of the Shares
or in contemplation of performing their obligations hereunder and (z) no
Underwriter who shall have failed or refused to purchase the Shares agreed to be
purchased by it under this Agreement, without some reason sufficient hereunder
to justify cancellation or termination of its obligations under this Agreement,
shall be relieved of liability to the Company or to the other Underwriters for
damages occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9 hereof) to
purchase on any Closing Date the Shares agreed to be purchased on such Closing
Date by such Underwriter or Underwriters, the Underwriters may find one or more
substitute underwriters to purchase such Shares or make such other arrangements
as the Underwriters may deem advisable or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may be
approved by the Underwriters, in each case upon the terms set forth in this
Agreement. If no such arrangements have been made by the close of business on
the business day following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then each of
the nondefaulting Underwriters shall be obligated to purchase such Shares on the
terms herein set forth in proportion to their respective obligations hereunder;
provided, that in no event shall the maximum number of Shares that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 10 by more than one-ninth of such number of Shares without the
written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, then the Company
shall be entitled to one additional business day within which it may, but is not
obligated to, find one or more substitute underwriters reasonably satisfactory
to the Underwriters to purchase such Shares upon the terms set forth in this
Agreement.
In any such case, either the Underwriters or the Company shall
have the right to postpone the applicable Closing Date for a period of not more
than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus) may be effected by the Underwriters and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section 10 within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases
35
as provided in Sections 7 and 8. The provisions of this Section shall not in any
way affect the liability of any defaulting Underwriter to the Company, or the
nondefaulting Underwriters arising out of such default. A substitute underwriter
hereunder shall become an Underwriter for all purposes of this Agreement.
11. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Agreement, the Company
hereby designates and appoints Camtek USA, 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 as the authorized agent of the Company, upon whom process may
be served in any suit, proceeding or other action against the Company instituted
by any Underwriter or by any person controlling an Underwriter as to which such
Underwriter or any such controlling person is a party and based upon this
Agreement, or in any other action against the Company in any Federal or state
court sitting in the County of New York, arising out of the offering made by the
Prospectus or any purchase or sale of securities in connection therewith. The
Company expressly accepts jurisdiction of any such court in respect of any such
suit, proceeding or other action and, without limiting other methods of
obtaining jurisdiction, expressly submits to nonexclusive personal jurisdiction
of any such court in respect of any such suit, proceeding or other action. Such
designation and appointment shall be irrevocable, unless and until a successor
authorized agent in the County and State of New York reasonably acceptable to
the Underwriters shall have been appointed by the Company such successor shall
have accepted such appointment and written notice thereof shall have been given
to the Representatives. The Company further agrees that service of process upon
its authorized agent or successor (and written notice of said service to the
Company mailed by certified mail or sent by telex or delivered, as provided in
Section 12 hereof) shall be deemed in every respect personal service of process
upon the Company in any such suit, proceeding or other action. In the event that
service of any process or notice of motion or other application to any such
court in connection with any such motion in connection with any such action or
proceeding cannot be made in the manner described above, such service may be
made in the manner set forth in conformance with the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents on Civil and Commercial
Matters or any successor convention or treaty. The Company hereby irrevocably
waives any objection that it may have or hereafter have to the laying of venue
of any such action or proceeding arising out of or based on the Shares, or this
Agreement or otherwise relating to the offering, issuance and sale of the Shares
in any Federal or state court sitting in the County of New York and hereby
further irrevocably waives any claim that any such action or proceeding in any
such court has been brought in an inconvenient forum. The Company agrees that
any final judgment after exhaustion of all appeals or the expiration of time to
appeal in any such action or proceeding arising out of the sale of the Shares or
this Agreement rendered by any such Federal court or state court shall be
conclusive, and subject to the limitations on enforcement in Section 4(ii)
hereof, may be enforced in any other jurisdiction by suit on the judgment or in
any other manner provided by law. Nothing contained in this Agreement shall
affect or limit the right of the Underwriters to serve any process or notice of
motion or other application in any other manner permitted by law or limit or
affect the right of the Underwriters to bring any action or proceeding against
the Company or any of its property in the courts of any other jurisdiction. The
Company further agrees to take any and all action, including
36
the execution and filing of all such instruments and documents, as may be
necessary to continue such designations and appointments or such substitute
designations and appointments in full force and effect for a period of six years
from the date hereof. The Company hereby agrees with the Underwriters to the
nonexclusive jurisdiction of the courts of the State of New York, or the Federal
courts sitting in the County of New York in connection with any action or
proceeding arising from the sale of the Shares or this Agreement brought by the
Company or the Underwriters.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise), with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement in any action instituted in any New York court or any court of
competent jurisdiction in the State of Israel.
This Section and the waivers contained herein are intended
only for the parties hereto and shall not be construed to give any third parties
any rights.
12. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(b), 7, 8, 9
and 11 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Underwriters, c/o CIBC World Markets Corp., 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx
Xxxxxxxxx, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxxxx and (b) if to
the Company, to its agent for service as such agent's address appears on the
cover page of the Registration Statement with a copy to Xxxxxxx, Xxxxxxx &
Xxxxxxxx, LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
37
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
38
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
CAMTEK LTD.
By: ____________________________
Name: Xxxx Xxxx
Title: Chief Executive Officer
Confirmed:
CIBC WORLD MARKETS CORP.
Acting severally on behalf of
itself and as representative of
the several Underwriters named
in Schedule I annexed hereto.
By: CIBC WORLD MARKETS CORP.
By: ______________________________
Name:
Title:
SCHEDULE I
Number of Number of Option
Firm Shares to be Shares to be Pur
Purchased from the chased from the
Name Company Company
-------------------- -------------------------------------------------------
CIBC World Markets Corp
UBS Warburg LLC
Xxxxxxx & Company, Inc.
Total 5,600,000 840,000
1
FORM OF LOCK-UP LETTER
CIBC World Markets Corp.
UBS Warburg LLC
Xxxxxxx & Company, Inc.
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") between Camtek Ltd., an
Israeli company (the "Company") and each of you, as representatives of the
underwriters to be named therein (the "Underwriters"), and relating to an
underwritten public offering of Ordinary Shares, NIS 0.02 par value ("Ordinary
Shares"), of the Company (the "Offering") pursuant to a Registration Statement
on Form F-1 (the "Registration Statement").
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned agrees, for a period from the date
hereof until 180 days after the date of the final prospectus relating to the
Offering, not to, directly or indirectly, except pursuant to the Underwriting
Agreement or with prior written consent of CIBC World Markets Corp., offer,
sell, pledge, grant any option to purchase, or otherwise sell or dispose (or
announce any offer, sale, grant of an option to purchase or other disposition)
of any Ordinary Shares or any securities convertible into, or exchangeable or
exercisable for, Ordinary Shares, owned directly or indirectly by the
undersigned or with respect to which the undersigned has the power of
disposition as of the date of this letter or acquired on or prior to the date of
the final Prospectus relating to the Offering, nor will the undersigned exercise
any registration rights, if any, with respect to the Company's Ordinary Shares.
The undersigned also agrees to and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of Ordinary Shares held by the undersigned except in compliance with
the foregoing restrictions. The undersigned understands that this agreement is
irrevocable and will be binding upon the undersigned's heirs, legal
representatives, successors and assigns. This letter agreement will remain in
full force and effect notwithstanding any changes in the Underwriters who
participate in the Offering. The undersigned understands that the Company and
the Underwriters will proceed with the Offering in reliance upon this letter
agreement.
* * * * * * *
If for any reason the Underwriting Agreement is not entered into before
___________, 2000 or shall be terminated prior to the Closing Date (as defined
in the Underwriting Agreement), the agreement set forth above shall be
terminated and you will notify the Company in writing that you have released the
undersigned from its obligations under this letter agreement.
Very truly yours,
___________________________
Name:
