1
EXHIBIT 1.1
2,170,000 Shares
SPEEDFAM INTERNATIONAL, INC.
Common Stock
UNDERWRITING AGREEMENT
SEPTEMBER _, 1997
XXXXXX BROTHERS INC.
BT ALEX. XXXXX INCORPORATED
XXXXXXXXXX SECURITIES
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 2,170,000 shares
(the "Firm Stock") of the Company's Common Stock (the "Common Stock"). Of the
2,170,000 shares of the Firm Stock, 2,000,000 are being sold by the Company and
170,000 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 325,500 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-_____, 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, as first transmitted for filing with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b), or
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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, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its
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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(k) 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
made and proposed to be made of such property by the Company and its
Subsidiaries; and all real
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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 Company or any of its
Subsidiaries, might have) a material adverse effect on the consolidated
financial
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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 affairs, management, financial position, shareholders'
equity or results of operations of the Company and
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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, the articles of partnership of such Selling
Shareholder, or any statute or any order, rule or regulation of
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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 an 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 325,500 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-_____), (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, Xxxxxxx & 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 sate 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.
(g) Xxxxx & XxXxxxxx shall have furnished to the
Representatives its written opinion, as counsel to SpeedFam Limited,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) SpeedFam Limited has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation;
(ii) SpeedFam Limited has the corporate power to own,
lease and operate its properties and to conduct its business
as described in the Prospectus;
(iii) SpeedFam Limited is duly qualified to do
business as a foreign corporation and is in good standing in
each jurisdiction, if any, in which the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure so to qualify would
not have a material adverse effect on the financial condition,
earnings, operations, business or business prospects of such
corporation; and
15.
16
(iv) With respect to SpeedFam Limited, 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) Doser Amereller Xxxxx shall have furnished to the
Representatives its written opinion, as counsel to SpeedFam GmbH,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) SpeedFam GmbH has been duly incorporated and is
validly existing as a limited liability corporation in good
standing under the laws of its jurisdiction of incorporation;
(ii) SpeedFam GmbH has the corporate power to own,
lease and operate its properties and to conduct its business
as described in the Prospectus;
(iii) SpeedFam GmbH is duly qualified to do business
as a foreign corporation and is in good standing in each
jurisdiction, if any, in which the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure so to qualify would
not have a material adverse effect on the financial condition,
earnings, operations, business or business prospects of such
corporation; and
(iv) With respect to SpeedFam GmbH, 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.
(i) 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),
16.
17
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;
(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.
(j) 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
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18
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.
(k) The Representatives shall have received from Xxxxxxx,
Phleger & 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.
(l) 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.
(m) 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.
(n) 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(o)
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.
(o) 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
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19
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.
(p) (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.
(q) 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.
(r) 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
19.
20
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 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 Shareholders 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
20.
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any liability which the Key Selling Shareholders 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 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
21.
22
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) 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
22.
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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 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(o)
or 9(p), 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(o) or
9(p) 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.
23.
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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, 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 on 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.
24.
25
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]
25.
26
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, SEPTEMBER ___, 1997:
XXXXXX BROTHERS INC.
BT ALEX. XXXXX
XXXXXXXXXX SECURITIES
XXXXXXX & COMPANY, INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:
-------------------------------
Authorized Representative
27
SCHEDULE 1
Number of
Underwriters Shares
--------------------------------------------------- -------------
Xxxxxx Brothers Inc................................ _______
BT Alex. Xxxxx Incorporated........................ _______
Xxxxxxxxxx Securities.............................. _______
Xxxxxxx & Company, Inc............................. _______
---------
Total 2,170,000
=========
28
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
Xxxx X. Xxxxxxxx 5,000
=======
Total 170,000
