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EXHIBIT 10.1
$100,000,000
INTEGRATED PROCESS EQUIPMENT CORP.
6 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2004
PURCHASE AGREEMENT
SEPTEMBER 11, 1997
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September 11, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx & Xxxxx LLC
Prudential Securities Incorporated
UBS Securities LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Integrated Process Equipment Corp., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Initial Purchasers named
in Schedule I hereto (the "INITIAL PURCHASERS") $100,000,000 principal amount of
its 6 1/4% Convertible Subordinated Notes due 2004 (the "FIRM SECURITIES") to be
issued pursuant to the provisions of an Indenture dated as of September 15, 1997
(the "INDENTURE") between the Company and State Street Bank and Trust Company of
California, N.A., as Trustee (the "TRUSTEE"). The Company also proposes to issue
and sell to the Initial Purchasers not more than an additional $15,000,000
principal amount of its 6 1/4% Convertible Subordinated Notes due 2004 (the
"ADDITIONAL SECURITIES") if and to the extent that you, as Managers of the
offering, shall have determined to exercise, on behalf of the Initial
Purchasers, the right to purchase such 6 1/4% Convertible Subordinated Notes due
2004 granted to the Initial Purchasers in Section 2 hereof. The Firm Securities
and the Additional Securities are hereinafter collectively referred to as the
"SECURITIES". The Securities will be convertible into shares of Integrated
Process Equipment Corp. common stock, par value $0.01 per share (the "UNDERLYING
SECURITIES").
The Securities and the Underlying Securities will be offered without
being registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), to qualified institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act, in offshore
transactions in reliance on Regulation S under the Securities Act ("REGULATION
S") and to institutional accredited investors (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that deliver a letter in the form
annexed to the Final Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the Closing
Date between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and
will prepare a final offering
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memorandum (the "FINAL MEMORANDUM" and, with the Preliminary Memorandum, each a
"MEMORANDUM") including or incorporating by reference a description of the terms
of the Securities and the Underlying Securities, the terms of the offering and a
description of the Company. As used herein, the term "MEMORANDUM" shall include
in each case the documents incorporated by reference therein. The terms
"SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference in
the Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum with the Securities and Exchange Commission (the
"COMMISSION") pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Initial Purchasers that:
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in either Memorandum complied
or will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) the
Company has filed with the Commission all documents required to be filed by the
Company pursuant to the Exchange Act, including all documents required to be
filed pursuant to Item 601 of Regulation S-K of the Securities Act (each, a
"MATERIAL CONTRACT") and (iii) the Preliminary Memorandum does not contain and
the Final Memorandum, in the form used by the Initial Purchasers to confirm
sales and on the Closing Date (as defined in Section 4), will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in either
Memorandum based upon information relating to any Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly for use
therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in each Memorandum and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock of each subsidiary of the Company have been
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duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(d) This Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(e) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Final Memorandum.
(f) The shares of common stock outstanding on the date hereof
have been duly authorized and are validly issued, fully paid and non-assessable.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of this Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity, and will be entitled to the benefits of the Indenture and
the Registration Rights Agreement pursuant to which such Securities are to be
issued.
(h) The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and nonassessable, and the
issuance of the Underlying Securities will not be subject to any preemptive or
similar rights.
(i) Each of the Indenture and Registration Rights Agreement
has been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement may be
limited under applicable law.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Registration Rights Agreement and the Securities will not
contravene any provision of applicable law or the certificate of incorporation
or bylaws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Securities, except such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of
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the Securities and by federal and state securities laws with respect to the
Company's obligations under the Registration Rights Agreement.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the Final
Memorandum.
(l) Subsequent to the respective dates as of which information
is given in the Final Memorandum, (i) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (ii) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries, taken as a whole,
except in each case as described in or contemplated by the Final Memorandum.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
other than proceedings accurately described in all material respects in each
Memorandum and proceedings that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement, the Indenture,
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated by the Final Memorandum.
(n) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up,
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closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(q) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor any of its
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 materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, except as described in or contemplated
by the Final Memorandum.
(r) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the Company
has directly, or through any agent, (i) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Securities
in a manner that would require the registration of the Securities under the
Securities Act or (ii) engaged in any form of general solicitation or general
advertising in connection with the offering of the Securities (as those terms
are used in Regulation D under the Securities Act), or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
(s) None of the Company, its Affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Securities and
the Company and its Affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S, except no representation, warranty or agreement is made by the
Company in this paragraph with respect to the Initial Purchasers.
(t) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner contemplated
by this Agreement to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(u) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(v) Neither the Company nor any of its subsidiaries, nor to
the Company's knowledge, any other principal party thereto, is in violation or
breach of, or in default with respect to, complying with any material provision
of any Material Contract, and each such Material Contract is in full force and
is the legal, valid and binding obligation of the Company
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or such subsidiary and, to the Company's knowledge, the other principal parties
thereto. The Company and its subsidiaries enjoy peaceful and undisturbed
possession under all leases and licenses under which they operate. Neither the
Company nor any of its subsidiaries is in violation or breach of, or in default
with respect to, any term of its certificate of incorporation or bylaws.
(w) The Company and its subsidiaries own or possess adequate
licenses or other rights to use all patents, copyrights, trademarks, service
marks, trade names, technology and know-how necessary to conduct their
respective businesses in the manner described in the Final Memorandum and,
except as disclosed in the Final Memorandum, neither of the Company nor any of
its subsidiaries has received any notice of infringement or conflict with
asserted rights of others with respect to any patents, copyrights, trademarks,
service marks, trade names, technology or know-how that could result in any
material adverse effect upon the Company and its subsidiaries, taken as a whole;
and except as described in the Final Memorandum, the discoveries, inventions,
products or processes of the Company and its subsidiaries referred to in the
Final Memorandum, do not, to the best knowledge of the Company, infringe or
conflict with any right or patent of any third party, or any discovery,
invention, product or process that is the subject of a patent application filed
by any third party, known to the Company or any of its subsidiaries that could
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(x) The Company and its subsidiaries possess all consents,
approvals, orders, certificates, authorization and permits issued by, and have
made all declarations and filings with, all appropriate federal, state or
foreign governmental and self-regulatory authorities and all courts and other
tribunals necessary to conduct their respective businesses and to own, lease,
license and use their properties in the manner described in the Final
Memorandum, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
consent, approval, order, certificate, authorization or permit that, singly or
in the aggregate, if the subject of any unfavorable decision, ruling or finding,
or failure to obtain or file, would result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, except as described in the
Final Memorandum.
(y) The Company and its subsidiaries maintain systems of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; ((ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles of the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
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(z) No material labor dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent,
and, without conducting any independent investigation, the Company is not aware
of any existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or contractors that could result
in any material adverse change in the condition, financial or otherwise, the
earnings, the business or operations of the Company and its subsidiaries, taken
as a whole.
(aa) The schedules of backlog provided to counsel for the
Initial Purchasers accurately reflect the backlog of the Company as of June 30,
1996 and June 30, 1997, subject to the qualifications and limitations specified
therein. The Company has not been advised by Intel that Intel intends to cancel
or delay shipments of the CMP systems that the Company has forecast to you as
future shipments to Intel and the Company has no reason to believe that such
cancellations or delays may occur.
(ab) The Company and each of its subsidiaries have timely
filed all necessary federal, state and foreign income and franchise tax returns
and have paid all taxes shown thereon as due, and there is no tax deficiency
that has been or, to the Company's knowledge, might be asserted against the
Company or any of its subsidiaries that could have a material adverse effect on
the condition (financial or otherwise), earnings, operations, business or
business prospects of the Company and its subsidiaries, taken as a whole; and
all tax liabilities are adequately provided for on the books of the Company.
(ac) Since the date of the Preliminary Memorandum, to the
Company's knowledge after due inquiry, no executive officer or director of the
Company has sold, contracted to sell or otherwise transferred or agreed to
transfer the economic consequences or ownership of any shares of common stock of
the Company or any securities convertible into or exchangeable or exercisable
for or any rights to purchase or acquire common stock of the Company.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Securities set forth in
Schedule I hereto opposite its name at a purchase price of 96.75% of the
principal amount thereof (the "PURCHASE PRICE") plus accrued interest, if any,
to the Closing Date.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Initial Purchasers the Additional Securities, and the Initial Purchasers
shall have a one-time right to purchase, severally and not jointly, up to
$15,000,000 principal amount of Additional Securities at the Purchase Price plus
accrued interest, if any, to the Closing Date. If you, on behalf of the Initial
Purchasers, elect to exercise such option, you shall so notify the Company in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the principal amount of Additional Securities to be purchased by
the Initial Purchasers and the date on which such Additional Securities are to
be purchased. Such date may be the same as the Closing Date (as
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defined below) but not earlier than the Closing Date nor later than ten (10)
business days after the date of such notice. Additional Securities may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Securities. If
any Additional Securities are to be purchased, each Initial Purchaser agrees,
severally and not jointly, to purchase the percentage of the principal amount of
Additional Securities (subject to such adjustments to eliminate fractional
Securities as you may determine) set forth in Schedule I hereto opposite the
name of such Initial Purchaser.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period ending 90 days after the date of the Final Memorandum,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or
indirectly, any shares of common stock or any securities convertible into or
exercisable or exchangeable for common stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the common stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of common stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the sale of the Securities hereunder; (B) the
issuance by the Company of shares of common stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof of
which the Initial Purchasers have been advised in writing; (C) options issued
under the Company's 1992 Stock Option Plan and the shares issuable upon exercise
thereof; (D) shares issued under the Company's 1994 Employee Stock Purchase
Plan; (E) shares and options granted to Xxxxx X. XxXxxxxx in connection with his
commencing employment by the Company; (F) shares and warrants issuable upon
exercise of outstanding unit purchase options and shares issuable upon exercise
of such warrants; or (G) shares issuable under the Company's stockholder rights
plan.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period beginning on the date hereof and continuing to and
including the Closing Date, offer, sell, contract to sell or otherwise dispose
of any debt of the Company or warrants to purchase debt of the Company
substantially similar to the Securities (other than the sale of the Securities
hereunder).
3. TERMS OF OFFERING. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. PAYMENT AND DELIVERY. Payment for the Firm Securities shall be
made to the Company in federal or other funds immediately available in New York
City against delivery of such Firm Securities for the respective accounts of the
several Initial Purchasers at a closing to be held at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx at 10:00
a.m., New York City time, on September 17, 1997, or at such other time on the
same or such other date, not later than September 17, 1997, as shall be
designated in
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writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE".
Payment for any Additional Securities shall be made to the Company in
federal or other funds immediately available in New York City against delivery
of such Additional Securities for the respective accounts of the several Initial
Purchasers at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx at 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time on the same
or on such other date, in any event not later than October 17, 1997, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Securities and Additional Securities shall
be in definitive form or global form, as specified by you, and registered in
such names and in such denominations as you shall request in writing not later
than one (1) full business day prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Firm Securities and
Additional Securities shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the purchase price therefor.
5. CONDITIONS TO THE INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to purchase and pay for the Firm
Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Final Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
(iii) The Initial Purchasers shall have received on
the Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties
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of the Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(b) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A. Such
opinion shall be rendered to the Initial Purchasers at the request of the
Company and shall so state therein.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx Godward LLP, counsel for the Initial Purchasers, dated
the Closing Date, to the effect set forth in Exhibit B.
(d) The Initial Purchasers shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the Initial
Purchasers, from KPMG Peat Marwick LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into each Memorandum; provided that the letter delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof.
(e) The "lock-up" agreements, each substantially in the form
of Exhibit C hereto, between you and all executive officers and directors of the
Company relating to sales and certain other dispositions of shares of common
stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Initial Purchasers to purchase
Additional Securities hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Initial Purchasers herein contained, the Company covenants with each
Initial Purchaser as follows:
(a) To furnish to you in New York City without charge, prior
to 5:00 p.m. New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 6(c), as many copies
of the Final Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request.
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(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and not to
use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the Initial
Purchasers, any event shall occur or condition shall exist as a result of which
it is necessary to amend or supplement the Final Memorandum in order to make the
statements therein, in the light of the circumstances when the Final Memorandum
is delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Initial Purchasers, it is necessary to amend or supplement the Final
Memorandum to comply with applicable law, forthwith to prepare and furnish, at
the Company's own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented, will
comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the issuance and sale
of the Securities and all other fees or expenses in connection with the
preparation and filing of each Memorandum and all amendments and supplements
thereto, including all printing costs associated therewith, and the delivering
of copies thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and delivery of
the Securities to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Securities, (v) all document production charges and expenses of counsel of the
Initial Purchasers (but not including their fees for professional services) in
connection with the preparation of this Agreement, (vi) the fees and expenses,
if any, incurred in connection with the admission of the Securities for trading
in PORTAL or any appropriate market system, (vii) the costs and charges of the
Trustee and any transfer agent, registrar or depository, (viii) the cost of the
preparation, issuance and delivery of the Securities, (ix) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the
11.
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representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (x) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section 6, Section 8 and
the last paragraph of Section 10, the Initial Purchasers will pay all of their
costs and expenses, including fees and disbursements of their counsel, transfer
taxes payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) which could be integrated with the sale of
the Securities in a manner that would require registration of the Securities
under the Securities Act.
(g) Not to solicit any offer to buy or offer or sell the
Securities or the Underlying Securities by means of any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities or the Underlying Securities
remain "restricted securities" within the meaning of the Securities Act, to make
available, upon request, to any seller of such Securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company is
then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in The Portal Market.
(j) None of the Company, its Affiliates or any person acting
on its or their behalf (other than the Initial Purchasers) will engage in any
directed selling efforts (as that term is defined in Regulation S) with respect
to the Securities, and the Company and its Affiliates and each person acting on
its or their behalf (other than the Initial Purchasers) will comply with the
offering restrictions requirement of Regulation S.
(k) During the period of two (2) years after the Closing Date
or the Option Closing Date, if later, the Company will not resell, and will use
reasonable efforts to prevent any of its affiliates (as defined in Rule 144A
under the Securities Act) from reselling any of the Securities or the Underlying
Securities which constitute "restricted securities" under Rule 144A that have
been reacquired by any of them.
7. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER.
(a) Each Initial Purchaser, severally and not jointly,
represents and warrants that such Initial Purchaser is a qualified institutional
buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial
Purchaser, severally and not jointly, agrees with the
12.
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Company that (i) it will not solicit offers for, or offer or sell, such
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (ii) it will solicit offers for such Securities only from, and will
offer such Securities only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, (1) QIBs or (2) other institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their
purchase of the Securities, deliver to such Initial Purchaser a letter
containing the representations and agreements set forth in Appendix A to the
Memorandum and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("FOREIGN PURCHASERS," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for foreign beneficial owners (other than an estate or trust)) in reliance
upon Regulation S under the Securities Act that, in each case, in purchasing
such Securities are deemed to have represented and agreed as provided in the
Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants and agrees with respect to offers and sales outside the
United States that:
(i) such Initial Purchaser understands that no action
has been or will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of either
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required;
(ii) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under
the Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Rule 144A or Regulation S under the Securities Act or pursuant to another
exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the
Securities and will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date (or Option Closing Date, if
later), only in accordance with Rule 903 of Regulation S or as otherwise
permitted in Section 7(a); accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its or their behalf have engaged or will
engage in any directed selling efforts (within the meaning of Regulation S) with
respect to the Securities, and any such Initial Purchaser, its Affiliates and
any such persons have complied and will comply with the offering restrictions
requirement of Regulation S;
13.
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(v) such Initial Purchaser has (A) not offered or
sold and, prior to the date six (6) months after the Closing Date, will not
offer or sell any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (B) complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom; and (C) only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in connection
with the issue of the Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may otherwise
lawfully be issued or passed on;
(vi) such Initial Purchaser understands that the
Securities have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or sold, and
agrees not to offer or sell, directly or indirectly, any Securities in Japan or
for the account of any resident thereof except pursuant to any exemption from
the registration requirements of the Securities and Exchange Law of Japan and
otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior
to confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as part
of their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and
the final closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
8. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim)
14.
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caused by any untrue statement or alleged untrue statement of a material fact
contained in either Memorandum (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by 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, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly for use
in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
15.
17
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the Final Memorandum, bear to the
aggregate offering price of the Securities. The relative fault of the Company on
the one hand and of the Initial Purchasers on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities
16.
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resold by it in the initial placement of such Securities were offered to
investors exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
9. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Final
Memorandum.
10. EFFECTIVENESS; DEFAULTING INITIAL PURCHASERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Initial Purchasers shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Securities to be purchased on
such date, the other Initial Purchasers shall be obligated severally in the
proportions that the principal amount of Firm Securities set forth opposite
their respective names in Schedule I bears to the aggregate principal amount of
Firm Securities set forth opposite the names of all such non-defaulting Initial
Purchasers, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase
17.
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on such date; that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date, any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Firm Securities and the aggregate principal
amount of Firm Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Firm Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Firm Securities are not made within thirty-six (36) hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven (7) days, in order that the required changes, if any, in
the Final Memorandum or in any other documents or arrangements may be effected.
If, on the Option Closing Date, any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Additional Securities and the aggregate
principal amount of Additional Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Additional
Securities to be purchased, the non-defaulting Initial Purchasers shall have the
option to (i) terminate their obligation hereunder to purchase Additional
Securities or (ii) purchase not less than the principal amount of Additional
Securities that such non-defaulting Initial Purchasers would have been obligated
to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
18.
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13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
INTEGRATED PROCESS EQUIPMENT CORP.
By: /s/ Xxxxx X. XxXxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and CEO
ACCEPTED AS OF THE DATE HEREOF
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXX & XXXXX LLC
PRUDENTIAL SECURITIES INCORPORATED
UBS SECURITIES LLC
Acting severally on behalf of themselves and the several Initial Purchasers
named in Schedule I hereto.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxx Xxxxxxxx
---------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
19.
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SCHEDULE I
PRINCIPAL AMOUNT OF PERCENTAGE OF
FIRM SECURITIES ADDITIONAL SECURITIES
TO BE PURCHASED TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated $ 44,235,000 50%
Xxxxxxxxx & Xxxxx LLC 44,235,000 50%
Prudential Securities Incorporated 5,380,000 __
UBS Securities LLC 6,150,000 __
------------ ------------
Total $100,000,000 100%
============ ============
22
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the
Company, to be delivered pursuant to Section 5(c) of the Purchase Agreement,
shall be to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Final Memorandum and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) Each subsidiary of the Company listed on Exhibit A hereto
has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Final Memorandum and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the Final Memorandum;
(iv) The shares of Common Stock outstanding on the Closing
Date have been duly authorized and are validly issued and non-assessable and, to
the knowledge of such counsel, are fully paid;
(v) The Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
(vi) The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid
1.
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24
and non-assessable and the issuance of the Underlying Securities will not be
subject to any preemptive or similar rights;
(vii) Each of the Purchase Agreement, the Indenture and the
Registration Rights Agreement has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity and except as rights to indemnification and contribution under the
Purchase Agreement and the Registration Rights Agreement may be limited under
applicable law;
(viii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Purchase Agreement, the
Indenture, the Registration Rights Agreement and the Securities will not
contravene any provision of applicable law or the certificate of incorporation
or bylaws of the Company or, to such counsel's knowledge, any Material Contract
or, to such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Purchase Agreement, the
Indenture, the Registration Rights Agreement or the Securities, except such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by federal and state
securities laws with respect to the Company's obligations under the Registration
Rights Agreement;
(ix) Such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject other than proceedings summarized in the Final
Memorandum and proceedings which such counsel believes are not likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its obligations under the
Purchase Agreement, the Indenture, the Registration Rights Agreement or the
Securities or to consummate the transactions contemplated by the Final
Memorandum;
(x) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended;
(xi) The statements in the Final Memorandum under the captions
"Description of Notes," "Description of Capital Stock" and "Transfer
Restrictions," insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly summarize the
matters referred to therein;
(xii) The statements in the Final Memorandum under the caption
"Certain Federal Income Tax Considerations," insofar as such statements
constitute a summary
2.
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of the United States federal tax laws referred to therein, are accurate and
fairly summarize in all material respects the United States federal tax laws
referred to therein;
(xiii) Each document incorporated by reference in the Final
Memorandum (except for financial statements and schedules and other financial
and statistical data included therein, as to which such counsel need not express
any opinion), complied as to form when filed with the Commission in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder; and
(xiv) Based upon the representations, warranties and
agreements of the Company in Sections 1(q), 1(r), 1(t), 6(f), 6(g) and 6(j) of
the Purchase Agreement and of the Initial Purchasers in Section 7 of the
Purchase Agreement, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers under the Purchase
Agreement or in connection with the initial resale of such Securities by the
Initial Purchasers in accordance with Section 7 of the Purchase Agreement to
register the Securities under the Securities Act of 1933 or to qualify the
Indenture under the Trust Indenture Act of 1939, it being understood that no
opinion is expressed as to any subsequent resale of any Security or Underlying
Security.
Based upon its participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and review and discussion
of the contents thereof and review of the documents incorporated by reference
therein, but without independent check or verification except as specified, such
counsel has no reason to believe that (except for financial statements and
schedules and other financial and statistical data, as to which such counsel
need not express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement of a
material fact or omitted or omits 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.
3.
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EXHIBIT A TO OPINION OF COUNSEL FOR THE COMPANY
SUBSIDIARIES
IPEC Planar, Inc.
IPEC Precision, Inc.
1.
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EXHIBIT B
OPINION OF XXXXXX GODWARD LLP
The opinion of Cooley Godward LLP to be delivered pursuant to Section 5(c) of
the Purchase Agreement shall be to the effect that:
(A) The Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(B) The Securities have been duly authorized by the Company and, when
duly executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
and will be entitled to the benefits of the Indenture and the Registration
Rights Agreement pursuant to which such securities are to be issued;
(C) The Underlying Securities reserved for issuance upon conversion of
the Securities have been duly authorized and reserved and, when issued upon
conversion of the Securities in accordance with the terms of the Indenture, will
be validly issued, fully paid and non-assessable, and the issuance of the
Underlying Securities will not be subject to any preemptive or, to the best of
such counsel's knowledge, other similar rights under any agreement to which the
Company is a party;
(D) Each of the Indenture and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company and each constitutes
a valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity and except as rights to indemnification and contribution under the
Registration Rights Agreement and Section 8.6 of the Indenture may be limited
under applicable law;
(E) The statements in the Final Memorandum under the captions,
"Description of Notes," "Description of Capital Stock," "Plan of Distribution"
and "Transfer Restrictions" in each case, insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
have been reviewed by such counsel and fairly present the information that would
be called for with respect to, and are fair summaries of such legal matters,
documents and proceedings to the extent that would be required to be summarized
in the Final Memorandum if it were a prospectus included in a registration
statement of the Company on Form S-3 under the Securities Act of 1933, as
amended (the "Act");
(F) Based upon the representations, warranties and agreements of the
Company in Sections 1(r), 1(s), 1(t), 1(u), 6(f), 6(g), 6(h) and 6(j) of the
Purchase Agreement and of the Initial Purchasers in Section 7 of the Purchase
Agreement, it is not necessary in connection with
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the offer, sale and delivery of the Securities to the Initial Purchasers under
the Purchase Agreement or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with Section 7 of the
Purchase Agreement to register the Securities under the Act or to qualify the
Indenture under the Trust Indenture Act of 1939, it being understood that no
opinion is expressed as to any subsequent resale of any Security or Underlying
Security.
With respect to paragraphs B and D above, such counsel may rely as to
certain matters relating to New York law on an opinion of New York counsel.
Based upon its participation in the preparation of the Final Memorandum
(and any amendments or supplements thereto) and review and discussion of the
contents thereof, but without independent verification, such counsel has no
reason to believe that (except for financial statements and schedules and other
financial and statistical data, as to which such counsel need not express any
belief) the Final Memorandum when issued contained, or as of the date such
opinion is delivered contains, any untrue statement of a material fact or
omitted or omits 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.
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EXHIBIT C
FORM OF LOCK-UP LETTER
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx & Xxxxx LLC
Prudential Securities Incorporated
UBS Securities LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into a Purchase Agreement (the "PURCHASE
AGREEMENT") with Integrated Process Equipment Corp., a Delaware corporation (the
"COMPANY"), providing for the offering (the "OFFERING") by the several Initial
Purchasers, including Xxxxxx Xxxxxxx (the "INITIAL PURCHASERS"), of $100,000,000
principal amount of its 63% Convertible Subordinated Notes Due 2004 (the
"SECURITIES"). The Securities will be convertible into shares of the Common
Stock ($0.01 par value) of the Company (the "COMMON STOCK").
To induce the Initial Purchasers that may participate in the Offering
to continue their efforts in connection with the Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Initial Purchasers, it will not, during the period commencing on
the date hereof and ending 90 days after the date of the final memorandum
relating to the Offering (the "FINAL MEMORANDUM"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Offering. In addition, the undersigned
agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of
the Initial Purchasers, it will not, during the period commencing on the date
hereof and ending 90 days after the date of the Final Memorandum, make any
demand for or exercise any right with
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respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
a Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Initial Purchasers.
Very truly yours,
-----------------------------------
(Name)
-----------------------------------
(Address)
2.
