EXHIBIT 2.1
3,000,000 Shares
SPEEDFAM INTERNATIONAL, INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
February 13, 1997
Lehman Brothers Inc.
Alex. Brown & Sons Incorporated
Needham & Company, Inc.
As Representatives of the several
Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
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 3,000,000 shares (the "Firm
Stock") of the Company's Common Stock (the "Common Stock"). Of the 3,000,000
shares of the Firm Stock, 2,050,000 are being sold by the Company and 950,000 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 450,000 shares of the Common Stock on the terms and
for the purposes set forth in Section 3 (the "Option Stock"). The Firm Stock
and the Option Stock, if purchased, are hereinafter collectively called the
"Stock." This is to confirm the agreement concerning the purchase of the Stock
from the Company and the Selling Shareholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3, Registration No. 333-20679,
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
"Rules 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 Rule 434(a) of the
Rules
1.
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
2.
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
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.
3.
(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 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 mark
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
4.
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 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,
5.
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
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 James N. Farley and Roger K. Marach as
attorneys-in-fact, with full power of substitution, and with full authority
(exercisable by
6.
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 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) James N. Farley and Makoto Kouzuma (the "Key Selling
Shareholders") represent and warrant 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 such Key
Selling Shareholder furnished in writing by or on behalf of such Key
Selling Shareholder expressly for use in the Registration Statement or
Prospectus, and provided that no representation or warranty be made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(g) Each of the Key Selling Shareholders 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
7.
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 2,050,000 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.
In addition, the Company grants to the Underwriters an option to
purchase up to 450,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased from the Company for the account of the Underwriters in proportion to
that number of shares of the Option Stock which represents the same proportion
of the number of shares of the Firm Stock to be sold by the Company as the
number of shares of the Firm Stock set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of shares of the Firm
Stock to be purchased by all of the Underwriters pursuant to this Agreement.
The respective purchase obligations of each Underwriter with respect to the
Option Stock shall be adjusted by the Representatives so that no Underwriter
shall be obligated to purchase Option Stock other than in 100 share amounts. The
price of both the Firm Stock and any Option Stock shall be $31.265 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 Chapman and Cutler, 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.
8.
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. 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
9.
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. 333-20679), (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 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
10.
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 Lehman
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 Lehman 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
(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 Lehman 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,
11.
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.
(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 Brobeck, Phleger & Harrison
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) Chapman and Cutler 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;
12.
(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 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
13.
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 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) Chapman and Cutler 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
14.
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, 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) Snell & Wilmer 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
15.
Property", insofar as it concerns patent matters, as of the Effective
Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the date of
such opinion, the information contained in such sections of the
Prospectus contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the State of Arizona, and as
to questions of fact upon representations or certificates of officers
of the Company and of government officials, in which case their
opinion is to state that they are so relying and that they have no
knowledge of any material misstatement or inaccuracy in such opinions,
representations or certificates. Copies of any opinion,
representation or certificate so relied upon shall be delivered to the
Representatives and to the Representatives' counsel.
(g) Baker & McKenzie 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
(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 Noack 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;
16.
(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 statute, 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),
Saku Seki K.K. (Japan), SpeedFam Incorporated (Taiwan), SpeedFam India
(Pvt.) Ltd. (India), SpeedFam Korea Ltd. (Korea), SpeedFam Thailand
Co. Ltd. (Thailand) and Met Coil Ltd. (Japan), (collectively the
"SpeedFam Ltd. Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with the corporate power and
authority to own or lease its properties and conduct its business;
(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;
17.
(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 statute, 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
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 Brobeck, Phleger &
Harrison 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
18.
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 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 ______________, 1997 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
19.
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 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
20.
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) Each Key Selling Shareholder, severally and not jointly, 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 such Key Selling Shareholder furnished
in writing by or on behalf of such 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 such Key Selling Shareholder furnished in writing by or on
behalf of such 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 each such Key Selling Shareholder
from the sale of their respective Stock upon the consummation of the sale
contemplated hereunder. The foregoing indemnity agreement is in addition to
any liability which the Key Selling 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
21.
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 10
for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the
right to employ counsel to represent jointly the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company or
any Selling Shareholder under this Section 10 if, in the reasonable
judgment of the Representatives, it is advisable for the Representatives
and those Underwriters, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company or the
Selling Shareholders. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) 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
22.
relative benefits received by the Company, the Selling Shareholders and the
Underwriters, respectively, from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, the Selling Shareholders and the Underwriters respectively with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Shareholders and the Underwriters, respectively with
respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company, the Selling
Shareholders, respectively and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the
Stock purchased under this Agreement, on the other, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Shareholders or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in
this Section shall be deemed to include, for purposes of this Section
10(e), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Stock underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission
and no Selling Shareholder shall be required to contribute any amount in
excess of the amount by which the proceeds received by such Selling
Shareholder from the sale of the shares of Stock hereunder exceeds the
amount of any damages which such Selling Shareholder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act or the Exchange Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 10(e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Stock by the
Underwriters set forth on the cover page of, the legends concerning over-
allotments and passive market making on the inside front cover page of and
the section "Underwriting" in, the Prospectus are correct and constitute
the only information concerning such Underwriters furnished in writing to
the Company by or on behalf of the Underwriters specifically for inclusion
in the Registration Statement and the Prospectus.
11. Defaulting Underwriters. If, on either Delivery Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the Stock
which the defaulting Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares of the Firm Stock
set opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Firm Stock 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
23.
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.
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 Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant to Section
10(d), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., Three World Financial Center, 10th Floor, New York, NY
10285;
(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: James N. Farley,
24.
Chief Executive Officer (Fax: (602) 961-2171), with a copy to Jonathan A.
Koff, at the address set forth on the cover page of the Registration
Statement (Fax: (312) 701-2361);
(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
Lehman 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.
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.
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: /s/ James N. Farley
-------------------------------------------
The Selling Shareholders named in Schedule 2 to
this Agreement
By: /s/ Roger K. Marach
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Attorney-in-Fact
ACCEPTED, FEBRUARY 13, 1997:
Lehman Brothers Inc.
Alex. Brown & Sons Incorporated
Needham & Company, Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: Lehman Brothers Inc.
By: /s/ Ernest Ruehl
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Authorized Representative
SCHEDULE 1
Number of
Underwriters Shares
- ------------------------------------ ---------
Lehman Brothers Inc. ............... 1,000,000
Alex. Brown & Sons Incorporated..... 1,000,000
Needham & Company, Inc. ............ 1,000,000
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Total 3,000,000
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SCHEDULE 2
Name and Address of Number of Shares
Selling Shareholder of Firm Stock
- ------------------------------ ----------------
James N. Farley Trust 400,000
Nancy J. Farley Trust 50,000
Sarah F. Huskey 10,000
Timothy P. Farley 10,000
Barbara J. Farley 10,000
James C. Farley 40,000
SpeedFam Employees Profit
Sharing Trust 75,000
James N. and Nancy J. Farley
Foundation 235,000
Makoto Kouzuma Trust 100,000
Thomas J. McCook 10,000
Robert R. Smith 10,000
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Total 950,000
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