1
2,180,000 Shares
SPEEDFAM INTERNATIONAL, INC.
Common Stock
UNDERWRITING AGREEMENT
October _, 1997
XXXXXX BROTHERS INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
XXXXXXX & COMPANY, INC.
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
SpeedFam International, Inc., an Illinois corporation (the "Company")
and certain shareholders of the Company named in Schedule 2 hereto (the "Selling
Shareholders") propose to sell an aggregate of 2,180,000 shares (the "Firm
Stock") of the Company's Common Stock (the "Common Stock"). Of the 2,180,000
shares of the Firm Stock, 2,000,000 are being sold by the Company and 180,000 by
the Selling Shareholders. In addition, the Company proposes to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an additional 327,000 shares of the Common Stock on the terms and
for the purposes set forth in Section 3 (the "Option Stock"). The Firm Stock and
the Option Stock, if purchased, are hereinafter collectively called the "Stock."
This is to confirm the agreement concerning the purchase of the Stock from the
Company and the Selling Shareholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3, Registration No.
333-35835, with respect to the Stock has (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations (the "Rule and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been transmitted electronically for filing with the Commission under the
Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendments thereto have
been delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus"
means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company with the
consent of the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration statement,
as amended at the Effective Time, including all information contained in
the final prospectus transmitted for filing with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with the
provisions hereof and deemed to be a part of the registration statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus,
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as first transmitted for filing with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b), or Rule 434(a) of the Rules and
Regulations. Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act") on or before the effective date of
the Registration Statement, the date of such preliminary prospectus or
the date of the Prospectus, as the case may be, and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include (i) the filing of any document
under the Exchange Act after the effective date of the Registration
Statement, the date of such preliminary prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed. The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are transmitted for
filing with the Commission, as the case may be, and when any document
filed under the Exchange Act is filed will conform in all respects to
the requirements of the Securities Act and the Exchange Act and the
applicable Rules and Regulations thereunder and do not and will not, as
of the applicable effective date (as to the Registration Statement and
any amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein.
(c) The Company and each of its Subsidiaries ("Subsidiaries"
shall include all entities in which the Company directly or indirectly,
has an ownership interest, specifically including SpeedFam Corporation,
SpeedFam Limited, and SpeedFam GmbH, as well as SpeedFam Co., Ltd., a
Japanese corporation, and Fujimi Corporation, an Illinois Corporation,
and all subsidiaries and other entities in which such entities hold an
ownership interest) have been duly incorporated and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged;
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; and all of the issued
shares of capital stock of each Subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(e) The shares of the Stock to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage,
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deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its Subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their properties or assets; and except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters and clearance of such offering of the Stock with the
National Association of Securities Dealers, Inc. ("NASD"), no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(h) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right (other than rights which have been
waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the
Securities Act.
(i) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
options plans, stock purchase plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants.
(j) Neither the Company nor any of its Subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus; and, since such date and except as contemplated by
Section 1(i) above, there has not been any change in the capital stock
or long-term debt of the Company or any of its Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved except as may be
described therein.
(l) KPMG Peat Marwick LLP, who have audited certain financial
statements of the Company, whose report appears in the Prospectus and
who, concurrently with the execution hereof, are delivering the initial
letter referred to in Section 9(j) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(m) The Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
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made and proposed to be made of such property by the Company and its
Subsidiaries; and all real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to or affecting creditors, rights generally
or by general equitable principles, and 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 by the Company and its Subsidiaries.
(n) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(o) The Company and each of its Subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim by third parties that the Company or
any of its Subsidiaries is infringing on the intellectual property
rights of such third parties.
(p) There are no legal or governmental proceedings pending to
which the Company 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 determined adversely to the Company or any of its
Subsidiaries, might have a material adverse effect on the consolidated
financial position, shareholders' equity, results of operations,
business or prospects of the Company and its Subsidiaries, taken as a
whole; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others.
(q) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(r) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected
to have a material adverse effect on the consolidated financial
position, shareholders' equity, results of operations, business or
prospects of the Company and its Subsidiaries, taken as a whole.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects and, to the best knowledge of the Company, nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(t) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes shown as due thereon, and no tax deficiency has been
determined adversely to the Company or any of its Subsidiaries which has
had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the
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Company or any of its Subsidiaries, might have) a material adverse
effect on the consolidated financial position, shareholders' equity,
results of operations, business or prospects of the Company and its
Subsidiaries, taken as a whole.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities (other than the issuance of options pursuant to the
Company's stock option plans or stock purchase plan or as contemplated
by Section 1(i) above), (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered
into any material transaction not in the ordinary course of business or
(iv) declared or paid any dividend on its capital stock.
(v) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary
to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(w) Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject or (iii) is in violation in
any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(x) To the best knowledge of the Company and its Subsidiaries,
neither the Company nor any of its Subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its Subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official
or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(y) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company
or any of its Subsidiaries (or, to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or its Subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a material
adverse effect on the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
Subsidiaries; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its Subsidiaries or
with respect to which the Company or any of its Subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not
be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a material adverse effect on the general
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affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(z) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder.
(aa) The conditions for use of Form S-3 as set forth in the
General Instructions thereto, have been satisfied.
(bb) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission under the Exchange Act, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and
at the First Delivery Date and the Second Delivery Date, if any, will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
2. Representations, Warranties and Agreements of the Selling
Shareholders. Each Selling Shareholder (except as otherwise set forth in
subsections (f) and (g)), severally and not jointly represents, warrants and
agrees that:
(a) Upon delivery of shares of Stock to be sold by the Selling
Shareholder hereunder and payment therefor pursuant hereto, good and
valid title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters assuming they
acquire without notice of any adverse claim.
(b) Such Selling Shareholder has placed in custody under a
custody agreement (the "Custody Agreement" and, together with all other
similar agreements executed by the other Selling Shareholders, the
"Custody Agreements") with Firstar Trust Company as custodian (the
"Custodian"), for delivery under this Agreement, certificates in
negotiable form (with signature guaranteed by a commercial bank or trust
company having an office or correspondent in the United States or a
member firm of the New York or American Stock Exchanges) representing
the shares of Stock to be sold by such Selling Shareholder hereunder.
(c) Such Selling Shareholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney" and, together
with all other similar agreements executed by the other Selling
Shareholders, the "Powers of Attorney") appointing Xxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx as attorneys-in-fact, with full power of substitution,
and with full authority (exercisable by any one or more of them) to
execute and deliver this Agreement and to take such other action as may
be necessary or desirable to carry out the provisions hereof on behalf
of the Selling Shareholder.
(d) Such Selling Shareholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement by or on behalf of such
Selling Shareholder and the consummation by such Selling Shareholder of
the transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound or
to which any of the property or assets of such Selling Shareholder is
subject, nor will such actions result in any violation of the provisions
of the charter or by-laws of such Selling Shareholder,
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the articles of partnership of such Selling Shareholder, or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Shareholder or the property
or assets of such Selling Shareholder; and, except for the registration
of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by such Selling Shareholder and the
consummation by such Selling Shareholder of the transactions
contemplated hereby and thereby, 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 shares of stock and clearance of such offering of
the Stock with the NASD.
(e) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the Stock.
(f) Xxxxx X. Xxxxxx (the "Key Selling Shareholder") represents
and warrants that the Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, do not and will not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated herein or necessary to make the statements therein not
misleading, but only with reference to information relating to the Key
Selling Shareholder furnished in writing by or on behalf of the Key
Selling Shareholder expressly for use in the Registration Statement or
Prospectus, and provided that no representation or warranty be made as
to information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein.
(g) The Key Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 1
hereof are not materially true and correct, is familiar with the
Registration Statement and the Prospectus (as amended or supplemented)
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement, as of the effective date, or
the Prospectus (or any amendment or supplement thereto), as of the
applicable filing date, which has adversely affected or may adversely
affect the business of the Company and the Subsidiaries, taken as a
whole, and is not prompted to sell shares of Common Stock by any
information concerning the Company which is not set forth in the
Registration Statement and the Prospectus.
3. Purchase of Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,000,000 shares of
the Firm Stock and each Selling Shareholder hereby agrees to sell the number of
shares of the Firm Stock set opposite its name in Schedule 2 hereto, severally
and not jointly, to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set opposite that Underwriter's name in Schedule 1 hereto. Each
Underwriter shall be obligated to purchase from the Company, and from each
Selling Shareholder, that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be sold by the
Company, and by each Selling Shareholder, as the number of shares of the Firm
Stock set forth opposite the name of each Underwriter in Schedule 1 represents
the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
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In addition, the Company grants to the Underwriters an option to
purchase up to 327,000 shares of Option Stock. Such option is granted solely for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased from the Company for the account of the Underwriters in proportion to
that number of shares of the Option Stock which represents the same proportion
of the number of shares of the Firm Stock to be sold by the Company as the
number of shares of the Firm Stock set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of shares of the Firm
Stock to be purchased by all of the Underwriters pursuant to this Agreement. The
respective purchase obligations of each Underwriter with respect to the Option
Stock shall be adjusted by the Representatives so that no Underwriter shall be
obligated to purchase Option Stock other than in 100 share amounts. The price of
both the Firm Stock and any Option Stock shall be $[_____] per share.
The Company and the Selling Shareholders shall not be obligated
to deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date (as hereinafter defined), as the case may be, except upon
payment for all the Stock to be purchased on such Delivery Date as provided
herein.
4. Offering of Stock by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock shall be made at the office of Xxxxxxx and Xxxxxx, Chicago,
Illinois at 9:00 A.M., central time, on the fourth full business day following
the date of this Agreement or at such other date or place as shall be determined
by agreement between the Representatives and the Company. Such date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery Date,
the Company and the Selling Shareholders shall deliver or cause to be delivered
certificates representing the Firm Stock to the Representatives for the account
of each Underwriter against payment to or upon the order of the Company and the
Selling Shareholders of the purchase price by certified or official bank check
or checks payable or wire transfer in immediately available (same-day) funds.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in such
names and in such denominations as the Representatives shall request in writing
not less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Stock, the Company and the Selling Shareholders shall make the certificates
representing the Firm Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 3 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that such date and time shall not
be earlier than the First Delivery Date nor earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the option shall have
been exercised. The date and time the shares of Option Stock are delivered are
sometimes referred to as the "Second Delivery Date" and the First Delivery Date
and the Second Delivery Date are sometimes each referred to as a "Delivery
Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 9:00 A.M., central time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or official bank
check or checks payable or wire transfer in immediately available (same-day)
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder.
8.
9
Upon delivery, the Option Stock shall be registered in such names and in such
denominations as the Representatives shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to transmit for filing 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; to make no
further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof; to advise the Representatives, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of
the Stock for offering or sale in any jurisdiction, of the initiation or
notification of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a conformed copy of the Registration
Statement as originally transmitted for filing with the Commission, and
each amendment thereto filed with the Commission, including all consents
and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement, the computation of per share
earnings and any exhibits incorporated by reference to the Company's
Registration Statement on Form S-3, SEC File No. 333-35835, (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Stock or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the
Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to
time reasonably request of an amended or supplemented Prospectus which
will correct such statement or omission or effect such compliance and,
in case any Underwriter is required to deliver a Prospectus nine months
or more after the effective date of the Registration Statement, the
Company upon request, but at the expense of such Underwriter, will
prepare promptly such Prospectus or Prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the
Securities Act;
(d) To transmit for filing promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment
9.
10
of the Company or the Representatives, be required by the Securities Act
or the Exchange Act or requested by the Commission;
(e) Prior to transmission of filing with the Commission any
amendment to the Registration Statement or supplement to the Prospectus
or any Prospectus pursuant to Rule 424 of the Rules and Regulations or
file any document under the Exchange Act if such document would be
deemed to be incorporated by reference into the Prospectus, to furnish a
copy thereof to the Representatives and counsel for the Underwriters;
(f) As soon as practicable after the Effective Date to make
generally available to the Company's security holders and to deliver to
the Representatives an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Stock;
(i) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose of
(or enter into any transaction or device which is designed to, or could
be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock (other than the Stock and
shares or options issued or granted pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding
options, warrants or rights or in connection with an acquisition of
assets or other business combination), or sell or grant options, rights
or warrants with respect to any shares of Common Stock (other than the
grant of options pursuant to option plans existing on the date hereof),
without the prior written consent of Xxxxxx Brothers Inc.; and to cause
each officer and director of the Company to furnish to the
Representatives, prior to the First Delivery Date, a letter or letters,
in form and substance satisfactory to counsel for the Underwriters,
pursuant to which each such person shall agree not to, directly or
indirectly, offer for sale, sell or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock for a period of 90 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers Inc.;
(j) That the Company's common stock currently outstanding is
listed on the Nasdaq National Market System and prior to the Effective
Date, to apply for the listing of the Stock on the Nasdaq National
Market System and to use its best efforts to complete that listing,
subject only to official notice of issuance, prior to the First Delivery
Date;
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company substantially as set forth in the Prospectus;
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any Subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder;
and
10.
11
(m) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act will file all
documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act within the time periods required by the
Exchange Act and the rules and regulations thereunder.
7. Further Agreements of the Selling Shareholders. Each Selling
Shareholder severally agrees:
(a) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose of
(or enter into any transaction or device which is designed to, or could
be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock (other than the Stock),
without the prior written consent of Xxxxxx Brothers Inc.;
(b) That the Stock to be sold by such Selling Shareholder
hereunder, which is represented by the certificates held in custody for
the Selling Shareholder, is subject to the interest of the Underwriters
and the other Selling Shareholders thereunder, that the arrangements
made by such Selling Shareholder for such custody are to that extent
irrevocable, and that the obligations of such Selling Shareholder
hereunder shall not be terminated by any act of such Selling
Shareholder, by operation of law, by the death or incapacity of any
individual Selling Shareholder or, in the case of a trust, by the death
or incapacity of any executor or trustee or the termination of such
trust, or the occurrence of any other event;
(c) To deliver to the Representatives prior to the First Delivery
Date a properly completed and executed United States Treasury Department
Form W-8 (if such Selling Shareholder is a non-United States person or
Form W-9 (if such Selling Shareholder is a United States person).
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally transmitted for filing and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the stock; (e) the costs of
delivering and distributing the Custody Agreements and the Powers of Attorney;
(f) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the Stock; (g)
any applicable listing or other fees; (h) the fees and expenses of qualifying
the Stock under the securities laws of the several jurisdictions as provided in
Section 6(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); and (i)
all other costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that, except as provided in Section
13, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Stock which they may
sell and the expenses of advertising any offering of the Stock made by the
Underwriters.
9. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy in all material
respects, when made and on each Delivery Date, of the representations and
warranties of the Company and the Selling Shareholders contained herein, to the
performance by the Company and the Selling Shareholders in all material
respects, of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely transmitted for filing
with the Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
11.
12
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Xxxxxxx,
Phleger & Xxxxxxxx LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Custody
Agreements, the Powers of Attorney, the Stock, the Registration
Statement and the Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Shareholders shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx and Xxxxxx shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) Each of the Company and SpeedFam Corporation
("SpeedFam") has been duly incorporated and validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except where the failure to so qualify would
not have a material adverse effect on the financial condition,
earnings, operations, business or business prospects of such
corporation, and have all power and authority necessary to own or
hold their respective properties and conduct the businesses in
which they are engaged;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock being
delivered on such Delivery Date upon issuance and delivery
against payment therefore in accordance with the terms hereof)
have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof
contained in the Prospectus;
(iii) There are no preemptive or other rights that have
not been properly waived to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or SpeedFam
is a party or of which any property or assets of the Company or
SpeedFam is the subject which, if determined adversely to the
Company or SpeedFam, might have a material adverse effect on the
consolidated financial position, shareholders' equity, results of
operations, business or prospects of the Company and its
Subsidiaries, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was transmitted for filing with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the effectiveness
of the Registration Statement has been issued and, to the
12.
13
knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(vi) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations;
(vii) To the best of such counsel's knowledge, there
are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as exhibits to
the Registration Statement or incorporated therein by reference
as permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed
and delivered by the Company;
(ix) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company with all of the provisions of this Agreement and
the consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
Subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries
or any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby; and
(x) To the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right (other than rights
which have been waived or satisfied) to require the Company to
file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities
in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the
Securities Act.
In rendering such opinion, such counsel may (i) state
that its opinion is limited to matters governed by the Federal
laws of the United States of America and the laws of the State of
Illinois, and (ii) as to questions of fact upon representations
or certificates of officers of the Company and of government
officials, in which case their opinion is to state that they are
so relying and that they have no knowledge of any material
misstatement or inaccuracy in such opinions, representations or
certificates. Copies of any opinion, representation or
certificate so relied upon shall be delivered to the
Representatives and to the Representatives' counsel. Such counsel
shall also have furnished to the Representatives a written
statement, addressed to the
13.
14
Underwriters and dated such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that based on
the foregoing and with no independent check or verification
thereof, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statement (other
than the financial statements, the notes thereto and other
financial and statistical data included therein or omitted
therefrom, as to which such counsel need express no view), as of
the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (other than the financial
statements, the notes thereto and other financial and statistical
data included therein or omitted therefrom, as to which such
counsel need express no view) contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(e) Xxxxxxx and Xxxxxx shall have furnished to the
Representatives its written opinion, as counsel to the Selling
Shareholders, addressed to the Underwriters and dated the First Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Each Selling Shareholder has full right, power
and authority to enter into this Agreement, the Power of Attorney
and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the
Custody Agreement by each Selling Shareholder and the
consummation by each Selling Shareholder of the transactions
contemplated hereby and thereby will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which such Selling Shareholder is a
party or by which such Selling Shareholder is bound or to which
any of the property or assets of such Selling Shareholder is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws or the articles of
partnership of any Selling Shareholder, or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any such
Selling Shareholder or the property or assets of any Selling
Shareholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the
Custody Agreement by any Selling Shareholder and the consummation
by such Selling Shareholder of the transactions contemplated
hereby and thereby;
(ii) This Agreement has been duly authorized, executed
and delivered by or on behalf of each Selling Shareholder;
(iii) A Power-of-Attorney and a Custody Agreement have
been duly authorized, executed and delivered by each Selling
Shareholder and constitute valid and binding agreements of such
Selling Shareholder, enforceable in accordance with their
respective terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to or affecting creditor's rights
generally or by general equitable principles; and
(iv) Each Selling Shareholder has full right, power and
authority to sell, transfer and deliver the shares of Stock to be
sold by such Selling Shareholder hereunder and good and
marketable title to such shares of Stock so sold, free and clear
of all voting trust arrangements, liens, encumbrances, equities,
claims and community property rights whatsoever,
14.
15
has been transferred to the Underwriters (who such counsel may
assume to be bona fide purchasers) who have purchased such shares
of Stock hereunder.
In rendering such opinion, such counsel may (i) state that
its opinion is limited to matters governed by the Federal laws of
the United States of America and the laws of the State of
Illinois and (ii) in rendering the opinions above, rely upon a
certificate of each Selling Shareholder (or representations of
such Selling Shareholder as set forth in the Power of Attorney)
in respect of matters of fact, provided that such counsel shall
furnish copies thereof to the Representatives and state that it
believes that both the Underwriters and it are justified in
relying upon such certificate.
(f) Xxxxx & Xxxxxx shall have furnished to the Representatives
its written opinion, as special patent counsel to the Company, addressed
to the Underwriters and dated the First Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no pending or
threatened actions, suits, proceedings or claims of any third
party challenging the validity or scope of any United States or
foreign patent filed by the Company, and no actual or threatened
claim of infringement by the Company of a patent held by a third
party has been brought to such counsel's attention by such third
party; and
(ii) Such counsel has carefully examined the
Prospectus and no facts have come to such counsel's attention
that leads it to believe that the information contained under the
captions "Risk Factors - Intellectual Property Rights" and
"Business - Intellectual Property", insofar as it concerns patent
matters, as of the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading or that, as of the date of such opinion, the
information contained in such sections of the Prospectus contains
any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not
misleading.
In rendering such opinion, such counsel may (i) state that
its opinion is limited to matters governed by the Federal laws of
the United States of America and the laws of the State of
Arizona, and as to questions of fact upon representations or
certificates of officers of the Company and of government
officials, in which case their opinion is to state that they are
so relying and that they have no knowledge of any material
misstatement or inaccuracy in such opinions, representations or
certificates. Copies of any opinion, representation or
certificate so relied upon shall be delivered to the
Representatives and to the Representatives' counsel.
15.
16
(g) Sanno Law Offices shall have furnished to the Representatives
its written opinion, as counsel to SpeedFam Co., Ltd., a Japanese
corporation, addressed to the Underwriters and dated such Delivery Date,
in form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) SpeedFam Co., Ltd., a Japanese corporation has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of Japan, with full corporate
power and authority to own or lease its properties and conduct
its business;
(ii) Each of the subsidiaries of SpeedFam Co., Ltd.,
including without limitation SpeedFam Clean System Co., Ltd.
(Japan), Xxxx Xxxx K.K. (Japan), SpeedFam Incorporated (Taiwan),
SpeedFam India (Pvt.) Ltd. (India), SpeedFam Korea Ltd. (Korea),
SpeedFam Thailand Co. Ltd. (Thailand) and Met Coil Ltd. (Japan),
(collectively the "SpeedFam Ltd. Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with the corporate power and authority to own or lease its
properties and conduct its business;
16.
17
(iii) Each branch of SpeedFam Co., Ltd. has been duly
qualified and is in good standing in its applicable jurisdiction.
SpeedFam Co., Ltd. is qualified to do business as a foreign
corporation in each jurisdiction where its failure to do so would
have a materially adverse effect on its business or properties;
(iv) The descriptions and representations of SpeedFam
Co., Ltd. and the SpeedFam Ltd. Subsidiaries as set forth in the
Registration Statement are true and accurate in all material
respects as of the date hereof;
(v) The authorized capital stock of SpeedFam Co.,
Ltd. and the SpeedFam Ltd. Subsidiaries conforms as to legal
matters in all material respects to the descriptions thereof
contained in the Registration Statement;
(vi) The outstanding shares of capital stock of
SpeedFam Co., Ltd. and the SpeedFam Ltd. Subsidiaries have been
duly and validly authorized and issued, are fully paid and
nonassessable, and are not subject to any preemptive or similar
rights;
(vii) Neither SpeedFam Co., Ltd. nor any of the
SpeedFam Ltd. Subsidiaries is in default under any of the
Material Agreements (as defined in such opinion), the material
terms of the Material Agreements have been substantially
performed, and there is no litigation or other governmental
proceeding pending or threatened in connection with any of the
Material Agreements; and
(viii) With respect to SpeedFam Co., Ltd., the
performance of this Agreement and the consummation of the
transactions herein contemplated (other than performance of the
Company's indemnification and contribution obligations hereunder,
concerning which no opinion need be expressed) will not, to such
counsel's knowledge, result in the violation of any foreign
statue, rule or regulation.
Counsel rendering the foregoing opinion may rely as to
questions of fact upon representations or certificates of
officers of the Company and of government officials, in which
case their opinion is to state that they are so relying and that
they have no knowledge of any material misstatement or inaccuracy
in such representations or certificate. Copies of any
representation or certificate so relied upon shall be delivered
to you, as Representatives of the Underwriters, and to
Underwriters' Counsel.
(h) Kenji Misono shall have furnished to the Representatives its
written opinion, as counsel to the SpeedFam Co., Ltd., addressed to the
Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) There is no litigation, action, proceeding or
governmental investigation pending or threatened to which
SpeedFam Co., Ltd. is or may become a party, or to which any of
the properties of SpeedFam Co., Ltd. is or may become subject, or
against any of its officers, directors or employees, and, to the
best such counsel's knowledge, none of the foregoing has received
any threat thereof.
Counsel rendering the foregoing opinion may rely as to
questions of fact upon representations or certificates of
officers of the Company and of government officials, in which
case their opinion is to state that they are so relying and that
they have no knowledge of any material misstatement or inaccuracy
in such representations or certificate. Copies of any
representation or certificate so relied upon shall be delivered
to you, as Representatives of the Underwriters, and to
Underwriters' Counsel.
17.
18
(i) The Representatives shall have received from Xxxxxxx, Xxxxxxx
& Xxxxxxxx LLP counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(j) At the time of execution of this Agreement, the
Representatives shall have received from KPMG Peat Marwick LLP a letter,
in form and substance satisfactory to the Representatives, addressed to
the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(k) With respect to the letter of KPMG Peat Marwick LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date
of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by
the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(l) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, executed by its Chairman of the
Board or its President and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct in all material
respects as of such Delivery Date; the Company has complied in
all material respects with all its agreements contained herein;
and the conditions set forth in Sections 9(a) and 9(m) have been
fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(m) Each Selling Shareholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Shareholders) shall have
furnished to the Representatives on the First Delivery Date a
certificate, dated the First Delivery Date, signed by, or on behalf of,
the Selling Shareholder (or the Custodian or one or more
attorneys-in-fact) stating that the representations, warranties and
agreements of such Selling Shareholder contained in Section 2 are true
and correct in all material respects as of the First Delivery Date and
that such Selling Shareholder has complied in all material respects with
all agreements contained herein to be performed by such Selling
Shareholder at or prior to the First Delivery Date.
18.
19
(n) (i) Neither the Company nor any of its Subsidiaries shall
have sustained since November 30, 1996 any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus or (ii) since such date, there shall not have been any
change in the capital stock or long-term debt of the Company or any of
its Subsidiaries (except as contemplated by Section 1(v) hereof) or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(o) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(p) The Nasdaq National Market System shall have approved the
Stock for listing subject only to official notice of issuance and
evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and
the Exchange Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A)
in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (B) in any blue
sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Stock under
the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue
Sky Application"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any act or failure to act or
any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Stock or
19.
20
the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i) or (ii) above (provided
that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful
misconduct) and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or supplement, or
in any Blue Sky Application, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein or if such statement or omission was
contained or made in any preliminary prospectus and corrected in the
Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by an Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Stock
which are the subject thereof from such Underwriter in the offering and
(2) such Underwriter failed to deliver or provide a copy of the
Prospectus to such person at or prior to the confirmation of the sale of
such Stock in any case where such delivery is required by the Securities
Act. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Key Selling Shareholder shall indemnify and hold harmless
each Underwriter, its officers and employees, and each person, if any,
who controls any Underwriter within the meaning of the Securities Act
and the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that
Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is 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 in any amendment or supplement thereto, but only
with reference to information relating to the Key Selling Shareholder
furnished in writing by or on behalf of the Key Selling Shareholder
expressly for use in the Registration Statement or Prospectus, or (ii)
the omission or alleged omission to state in any Preliminary Prospectus,
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to the Key Selling Shareholder
furnished in writing by or on behalf of the Key Selling Shareholder
expressly for use in the Registration Statement or Prospectus, and shall
reimburse each Underwriter, its officers and employees and each such
controlling person for any legal or other expenses reasonably incurred
by that Underwriter, its officers and employees or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Key Selling
Shareholder shall in no event be liable for losses or claims exceeding
the proceeds received by the Key Selling Shareholder from the sale of
their respective Stock upon the consummation of the sale contemplated
hereunder. The foregoing indemnity agreement is in addition to any
liability which the Key Selling Shareholder may otherwise have to any
Underwriter or any officer, employee or controlling person of that
Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the
meaning of the Securities Act and the Exchange Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or
20.
21
any such director, officer or controlling person may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto,
or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or
on behalf of that Underwriter specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company
or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under this Section 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company or any
Selling Shareholder under this Section 10 if, in the reasonable judgment
of the Representatives, it is advisable for the Representatives and
those Underwriters, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company or the
Selling Shareholders. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c)
21.
22
in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, the Selling Shareholders and the Underwriters,
respectively, from the offering of the Stock or (ii) if the allocation
provided by clause (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 (i) above but also the relative fault of the
Company, the Selling Shareholders and the Underwriters respectively with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received
by the Company, the Selling Shareholders and the Underwriters,
respectively with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by
the Company, the Selling Shareholders, respectively and the total
underwriting discounts and commissions received by the Underwriters with
respect to the shares of the Stock purchased under this Agreement, on
the other, bear to the total gross proceeds from the offering of the
shares of the Stock under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the
Selling Shareholders or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section were to be
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 into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include,
for purposes of this Section 10(e), 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 10(e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and
no Selling Shareholder shall be required to contribute any amount in
excess of the amount by which the proceeds received by such Selling
Shareholder from the sale of the shares of Stock hereunder exceeds the
amount of any damages which such Selling Shareholder 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 or the Exchange Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of
the Stock by the Underwriters set forth on the cover page of, the
legends concerning over-allotments and passive market making on the
inside front cover page of and the section "Underwriting" in, the
Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of
the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
11. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock
22.
23
set opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.9% of the total number of shares of the Stock to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of shares of the Stock which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Stock to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Shareholders, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 13. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who, pursuant to this Section 11,
purchases Firm Stock which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company and the Selling Shareholders for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Selling Shareholders prior to delivery of and payment for the Firm Stock
if, prior to that time, any of the events described in Sections 9(m) or 9(n),
shall have occurred or if the Underwriters shall decline to purchase the Stock
for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If (a) the Company or any
Selling Shareholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or the Selling Shareholder(s) to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or the Selling Shareholder(s)
is not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company shall pay the full amount thereof to the
Representative(s). If this Agreement is terminated pursuant to Section 9(m) or
9(n) or Section 11 by reason of the default of one or more Underwriters, neither
the Company nor any Selling Shareholder shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 10(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., Three World Financial Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxxx X. Xxxxxx,
23.
24
Chairman of the Board (Fax: (000) 000-0000), with a copy to Xxxxxxxx X.
Xxxx, at the address set forth on the cover page of the Registration
Statement (Fax: (000) 000-0000);
(c) if to the Selling Shareholders, shall be delivered or sent by
mail, telex or facsimile transmission to such Selling Shareholder at the
address set forth on Schedule 2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company, and
the Selling Shareholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives and the Company and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Selling Shareholders by the
Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Company, the Selling
Shareholders and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the Selling Shareholders contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and the Exchange Act and (B) the indemnity agreement of the
Underwriters contained in Section 10(c) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers and Selling Shareholders
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities Act
and the Exchange Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Selling Shareholders and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Term "Business Day." For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
24.
25
If the foregoing correctly sets forth the agreement among the Company,
the Selling Shareholders and the Underwriters, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
SPEEDFAM INTERNATIONAL, INC.
By: ___________________________________________
The Selling Shareholders named in Schedule 2 to this
Agreement
By: __________________________________________
Attorney-in-Fact
ACCEPTED, OCTOBER ___, 1997:
XXXXXX BROTHERS INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
XXXXXXX & COMPANY, INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By: ____________________________________
Authorized Representative
26
SCHEDULE 1
Number of
Underwriters Shares
------------ ------
Xxxxxx Brothers Inc........................ [_______]
BT Alex. Xxxxx Incorporated................ [_______]
NationsBanc Xxxxxxxxxx Securities, Inc..... [_______]
Xxxxxxx & Company, Inc..................... [_______]
_________
Total 2,180,000
27
SCHEDULE 2
Name and Address of Number of Shares
Selling Shareholder of Firm Stock
------------------- -------------
Xxxxx X. Xxxxxx 48,000
Xxxxx X. Xxxxxx 15,000
Xxxxx X. and Xxxxx X. Xxxxxx Foundation 85,000
Xx. Xxxxxx Xxxxx 17,000
Xxxxxxxx Family Limited Partnership 5,000
Xxxxx X. Xxxxxx 10,000
------
Total 180,000
=======
