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EXHIBIT 2.2
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of November 19, 1998 (the "Agreement") is
entered into by and between Integrated Process Equipment Corp., a Delaware
corporation ("IPEC"), and SpeedFam International, Inc., an Illinois corporation
("SpeedFam").
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement, IPEC,
SpeedFam and SpeedFam, Inc., a Delaware corporation and a wholly owned
subsidiary of SpeedFam ("Sub"), are entering into an Agreement and Plan of
Merger (the "Merger Agreement"), which provides that, among other things, upon
the terms and subject to the conditions thereof, IPEC and SpeedFam will enter
into a business combination transaction to pursue their long-term business
strategies (the "Merger"); and
WHEREAS, as a condition to IPEC's willingness to enter into the Merger
Agreement, IPEC has requested that SpeedFam agree, and SpeedFam has so agreed,
to grant to IPEC an option to acquire shares of SpeedFam's Common Stock, no par
value, upon the terms and subject to the conditions set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein and in the Merger Agreement and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. GRANT OF OPTION
SpeedFam hereby grants to IPEC an irrevocable option (the "Option") to acquire
up to a number of shares of the Common Stock, without par value, of SpeedFam
("SpeedFam Shares") equal to 19.9% of the issued and outstanding shares as of
the first date, if any, upon which an Exercise Event (as defined in Section 2(a)
below) shall occur (the "Option Shares") (provided that the Option Shares shall
not upon timely issuance constitute more than 19.9% of the then issued and
outstanding SpeedFam Shares), in the manner set forth below (i) by paying cash
at a price of $14.875 per share (the "Exercise Price") and/or, at IPEC's
election, (ii) by exchanging therefor shares of the Common Stock, $.01 par
value, of IPEC ("IPEC Shares") at a rate (the "Exercise Ratio"), for each Option
Share, of a number of IPEC Shares equal to the Exercise Price divided by the
closing sale price of IPEC Shares on the Nasdaq National Market for the trading
day immediately preceding the date of the Closing (as defined below) of the
particular Option exercise. Capitalized terms used in this Agreement but not
defined herein shall have the meanings ascribed thereto in the Merger Agreement.
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SECTION 2. EXERCISE OF OPTION; MAXIMUM PROCEEDS
(a) The Option may be exercised by IPEC, in whole or in part, at any
time or from time to time, (i) immediately prior to the consummation of a tender
or exchange offer for 15% or more of any class of SpeedFam's capital stock, (ii)
upon the occurrence of all of the events specified in Section 7.3(c)(ii) of the
Merger Agreement, (iii) if and when the Board of Directors of SpeedFam shall
have withheld, withdrawn or modified in a manner adverse to IPEC its
recommendation in favor of approving the issuance of the shares of SpeedFam
Common Stock by virtue of the Merger and such other matters as may be required
by the Merger Agreement, or decides to postpone or not hold the SpeedFam
Shareholders' Meeting after receipt of and in connection with an Acquisition
Proposal with respect to SpeedFam and at that time there shall not have occurred
a Material Advice Effect (as defined in the Merger Agreement) on IPEC or (iv) if
and when the Board of Directors of SpeedFam recommends a SpeedFam Superior
Proposal to the shareholders of SpeedFam (any of the events specified in clauses
(i), (ii), (iii) or (iv) of this sentence being referred to herein as an
"Exercise Event"). In the event IPEC wishes to exercise the Option, IPEC shall
deliver to SpeedFam a written notice (each an "Exercise Notice") specifying the
total number of Option Shares it wishes to acquire and the form of consideration
to be paid. Each closing of a purchase of Option Shares (a "Closing") shall
occur on a date and at a time prior to the termination of the Option designated
by IPEC in an Exercise Notice delivered at least two business days prior to the
date of such Closing, which Closing shall be held at the principal offices of
SpeedFam.
(b) Notwithstanding the foregoing, upon the commencement of a tender or
exchange offer for 15% or more of any class of SpeedFam's capital stock (and/or
during any time which such a tender or exchange offer remains open), IPEC may
deliver to SpeedFam an Exercise Notice (a "Conditional Exercise Notice")
specifying that it wishes to exercise and close a purchase of Option Shares
immediately prior to the consummation of such tender or exchange offer. Unless
the Conditional Exercise Notice is withdrawn by IPEC, the Closing of a purchase
of Option Shares specified in a Conditional Exercise Notice shall take place
immediately prior to the consummation of such tender or exchange offer. In the
event that such tender or exchange offer is not consummated prior to termination
of the Option, such Conditional Exercise Notice shall be void and of no further
force and effect.
(c) The Option shall terminate upon the earliest of (i) the Effective
Time, (ii) 180 days following the termination of the Merger Agreement pursuant
to Article VII thereof if an Exercise Event shall have occurred on or prior to
the date of such termination, (iii) 12 months following the date on which the
Merger Agreement is terminated pursuant to Article VII thereof if (x) there
shall have been a SpeedFam Negative Vote and (y) prior to such SpeedFam Negative
Vote there shall have occurred an Acquisition Proposal with respect to SpeedFam
which shall have been publicly disclosed and not withdrawn, (iv) 12 months
following the date on which the Merger Agreement is terminated pursuant to
Article VII thereof if prior thereto there shall have commenced a tender or
exchange offer for 15% or more of any class of SpeedFam's capital stock and (v)
the date on which the Merger Agreement is terminated if neither an Exercise
Event, nor both of the events specified in subclauses (x) and (y) of clause
(iii), nor the commencement of a tender or exchange offer
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for 15% or more of any class of SpeedFam's capital stock shall have occurred on
or prior to such date of termination; provided, however, that if the Option
cannot be exercised by reason of any applicable government order or because the
waiting period related to the issuance of the Option Shares under the HSR Act
shall not have expired or been terminated, then the Option shall not terminate
until the tenth business day after such impediment to exercise shall have been
removed or shall have become final and not subject to appeal. Notwithstanding
the foregoing, the Option may not be exercised if (i) IPEC shall have breached
in any material respect any of its covenants or agreements contained in the
Merger Agreement or (ii) the representations and warranties of IPEC contained in
the Merger Agreement shall not have been true and correct in all material
respects on and as of the date when made.
(d) If IPEC receives in the aggregate pursuant to Section 7.3(c) of the
Merger Agreement together with proceeds in connection with any sales or other
dispositions of Option Shares and any dividends received by IPEC declared on
Option Shares, more than the sum of (x) $6,000,000 plus (y) the Exercise Price
multiplied by the number of SpeedFam Shares purchased by IPEC pursuant to the
Option, then all proceeds to IPEC in excess of such sum shall be remitted by
IPEC to SpeedFam.
SECTION 3. CONDITIONS TO CLOSING
The obligation of SpeedFam to issue Option Shares to IPEC hereunder is subject
to the conditions that (a) any waiting period under the HSR Act applicable to
the issuance of the Option Shares hereunder shall have expired or been
terminated; (b) all material consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, any Federal, state or local
administrative agency or commission or other Federal state or local governmental
authority or instrumentality, if any, required in connection with the issuance
of the Option Shares hereunder shall have been obtained or made, as the case may
be; and (c) no preliminary or permanent injunction or other order by any court
of competent jurisdiction prohibiting or otherwise restraining such issuance
shall be in effect. It is understood and agreed that at any time during which
the Option is exercisable or if IPEC shall have delivered to SpeedFam a
Conditional Exercise Notice, the parties will use their respective best efforts
to satisfy all conditions to Closing, so that a Closing may take place as
promptly as practicable, and in any event, prior to consummation of a tender or
exchange offer for shares of SpeedFam capital stock; provided that neither
SpeedFam nor IPEC nor any subsidiary or affiliate thereof will be required to
agree to any divestiture by itself or any of its affiliates of shares of capital
stock or of any business, assets or property, or the imposition of any material
limitation on the ability of any of them to conduct their businesses or to own
or exercise control of such assets, properties and stock.
SECTION 4. CLOSING
At any Closing, (a) SpeedFam shall deliver to IPEC a single certificate
in definitive form representing the number of SpeedFam Shares designated by IPEC
in its Exercise Notice, such certificate to be registered in the name of IPEC
and to bear the legend set forth
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in Section 10 hereof, against delivery of (b) payment by IPEC to SpeedFam of the
aggregate purchase price for the SpeedFam Shares so designated and being
purchased by delivery of (i) immediately available funds and/or, at IPEC's
election, (ii) a single certificate in definitive form representing the number
of IPEC Shares being issued by IPEC in consideration therefor (based on the
Exercise Ratio), such certificate to be registered in the name of SpeedFam and
to bear the legend set forth in Section 10 hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SPEEDFAM
SpeedFam represents and warrants to IPEC that (a) SpeedFam is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Illinois and has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by SpeedFam and consummation by SpeedFam of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of SpeedFam and no other corporate proceedings on
the part of SpeedFam are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed and
delivered by SpeedFam and constitutes a legal, valid and binding obligation of
SpeedFam and, assuming this Agreement constitutes a legal, valid and binding
obligation of IPEC, is enforceable against SpeedFam in accordance with its
terms, except as enforceability may be limited by bankruptcy and other laws
affecting the rights and remedies of creditors generally and general principles
of equity; (d) except for any filings required under the HSR Act, SpeedFam has
taken all necessary corporate and other action to authorize and reserve for
issuance and to permit it to issue upon exercise of the Option, and at all times
from the date hereof until the termination of the Option will have reserved for
issuance, a sufficient number of unissued SpeedFam Shares for IPEC to exercise
the Option in full and will take all necessary corporate or other action to
authorize and reserve for issuance all additional SpeedFam Shares or other
securities which may be issuable pursuant to Section 9(a) upon exercise of the
Option, all of which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and nonassessable;
(e) upon delivery of the SpeedFam Shares and any other securities to IPEC upon
exercise of the Option, IPEC will acquire such SpeedFam Shares or other
securities free and clear of all material claims, liens, charges, encumbrances
and security interests of any kind or nature whatsoever, excluding those imposed
by IPEC; (f) the execution and delivery of this Agreement by SpeedFam do not,
and the performance of this Agreement by SpeedFam will not, (i) violate the
Articles of Incorporation or By-Laws of SpeedFam, (ii) conflict with or violate
any order applicable to SpeedFam or any of its subsidiaries or by which they or
any of their property is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of SpeedFam or any of its
subsidiaries pursuant to, any contract or agreement to which SpeedFam or any of
its subsidiaries is a party or by which SpeedFam or any of its subsidiaries or
any of their property is bound or affected, except, in the case of clauses (ii)
and (iii) above, for violations, conflicts, breaches, defaults, rights of
termination, amendment, acceleration or cancellation, liens or encumbrances
which would not, individually or in the aggregate, have
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a Material Adverse Effect on SpeedFam; (g) the execution and delivery of this
Agreement by SpeedFam does not, and the performance of this Agreement by
SpeedFam will not, require any consent, approval, authorization or permit of, or
filing with, or notification to, any Governmental Entity by SpeedFam except
pursuant to the HSR Act or to the extent required under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and (h) any IPEC Shares acquired
pursuant to this Agreement will not be acquired by SpeedFam with a view to the
public distribution thereof and SpeedFam will not sell or otherwise dispose of
such shares in violation of applicable law or this Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF IPEC
IPEC represents and warrants to SpeedFam that (a) IPEC is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of California and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by IPEC and the consummation by IPEC of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of IPEC and no other corporate proceedings on the
part of IPEC are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed and
delivered by IPEC and constitutes a legal, valid and binding obligation of IPEC
and, assuming this Agreement constitutes a legal, valid and binding obligation
of SpeedFam, is enforceable against IPEC in accordance with its terms, except as
enforceability may be limited by bankruptcy and other laws affecting the rights
and remedies of creditors generally and general principles of equity; (d) upon
delivery of IPEC Shares to SpeedFam in consideration of any acquisition of
SpeedFam Shares pursuant hereto, SpeedFam will acquire such IPEC Shares free and
clear of all material claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever, excluding those imposed by SpeedFam;
(e) the execution and delivery of this Agreement by IPEC do not, and the
performance of this Agreement by IPEC will not, (i) violate the Articles of
Incorporation or By-Laws of IPEC, (ii) conflict with or violate any order
applicable to IPEC or any of its subsidiaries or by which they or any of their
property is bound or affected or (iii) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of IPEC or any of its subsidiaries
pursuant to, any contract or agreement to which IPEC or any of its subsidiaries
is a party or by which IPEC or any of its subsidiaries or any of their property
is bound or affected, except, in the case of clauses (ii) and (iii) above, for
violations, conflicts, breaches, defaults, rights of termination, amendment,
acceleration or cancellation, liens or encumbrances which would not,
individually or in the aggregate, have a Material Adverse Effect on IPEC; (f)
the execution and delivery of this Agreement by IPEC does not, and the
performance of this Agreement by IPEC will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity by IPEC except pursuant to the HSR Act or the Exchange Act; and (g) any
SpeedFam Shares acquired upon exercise of the Option will not be acquired by
IPEC with a view to the public distribution thereof and IPEC will not sell or
otherwise dispose of such shares in violation of applicable law or this
Agreement.
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SECTION 7. CERTAIN RIGHTS
(a) IPEC Put. At the request of and upon notice by IPEC (the "Put
Notice"), at any time during the period during which the Option is exercisable
pursuant to Section 2 (the "Purchase Period") or in accordance with subparagraph
(iv) below, SpeedFam (or any successor entity thereof) shall purchase from IPEC
the Option, to the extent not previously exercised, at the price set forth in
subparagraph (i) below (as limited by subparagraph (iii) below), and the Option
Shares, if any, acquired by IPEC pursuant thereto, at the price set forth in
subparagraph (ii) below (as limited by subparagraph (iii) below):
(i) The difference between the "Market/Tender Offer Price" for
SpeedFam Shares as of the date IPEC gives notice of its intent to
exercise its rights under this Section 7(a) (defined as the higher of
(A) the highest price per share offered as of such date pursuant to any
Acquisition Proposal which was made prior to such date and not
terminated or withdrawn as of such date and (B) the highest closing
sale price of SpeedFam Shares on the Nasdaq National Market during the
twenty (20) trading days ending on the trading day immediately
preceding such date) and the Exercise Price, multiplied by the number
of SpeedFam Shares purchasable pursuant to the Option, but only if the
Market/Tender Offer Price is greater than the Exercise Price. For
purposes of determining the highest price offered pursuant to any
Acquisition Proposal which involves consideration other than cash, the
value of such consideration shall be equal to the higher of (x) if
securities of the same class of the proponent as such consideration are
traded on any national securities exchange or by any registered
securities association, a value based on the closing sale price or
asked price for such securities on their principal trading market on
such date and (y) the value ascribed to such consideration by the
proponent of such Acquisition Proposal, or if no such value is
ascribed, a value determined in good faith by the Board of Directors of
SpeedFam.
(ii) The Exercise Price paid by IPEC for SpeedFam Shares
acquired pursuant to the Option plus the difference between the
Market/Tender Offer Price and such Exercise Price (but only if the
Market/Tender Offer Price is greater than the Exercise Price)
multiplied by the number of SpeedFam Shares so purchased. If IPEC
issued IPEC Shares in connection with any exercise of the Option, the
Exercise Price in connection with such exercise shall be calculated as
set forth in Section 1 as if IPEC had exercised its right to pay cash
instead of issuing IPEC Shares.
(iii) Notwithstanding subparagraphs (i) and (ii) above,
pursuant to this Section 7, SpeedFam shall not be required to pay IPEC
in excess of an aggregate of (x) $6,000,000 plus (y) the Exercise Price
paid by IPEC for SpeedFam Shares acquired pursuant to the Option minus
(z) any amounts paid to IPEC by SpeedFam pursuant to Section 7.3(c) of
the Merger Agreement.
(iv) Notwithstanding the foregoing, upon the commencement of a
tender or exchange offer for 15% or more of any class of SpeedFam's
capital stock (and/or during any time which such a tender or exchange
offer remains open), IPEC may deliver to SpeedFam a Put Notice (a
"Conditional Put Notice") specifying that it
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wishes to exercise and close immediately prior to the consummation of
such tender or exchange offer, a sale to SpeedFam pursuant to this
Section 7(a) of the Option, to the extent not previously exercised, and
the Option Shares, if any, acquired by IPEC pursuant thereto. Unless
the Conditional Put Notice is withdrawn by IPEC, the Closing of any
such sale specified in a Conditional Put Notice shall take place
immediately prior to the consummation of such tender or exchange offer.
In the event that such tender or exchange offer is not consummated
prior to termination of the Option, such Conditional Put Notice shall
be void and of no further force and effect.
(b) Redelivery of IPEC Shares. If IPEC has acquired SpeedFam Shares
pursuant to exercise of the Option by the issuance and delivery of IPEC Shares,
then SpeedFam shall, if so requested by IPEC, in fulfillment of its obligation
pursuant to the first clause of Section 7(a)(ii) with respect to the Exercise
Price paid in the form of IPEC Shares only, redeliver the certificate(s) for
such IPEC Shares to IPEC, free and clear of all claims, liens, charges,
encumbrances and security interests of any kind or nature whatsoever, other than
those imposed by IPEC.
(c) Payment and Redelivery of Option or Shares. In the event IPEC
exercises its rights under Sections 7(a) or (b), SpeedFam shall, within ten
business days after IPEC delivers notice pursuant to Section 7(a), pay the
required amount to IPEC in immediately available funds (and IPEC Shares, if
applicable) and IPEC shall surrender to SpeedFam the Option and the certificates
evidencing the SpeedFam Shares purchased by IPEC pursuant thereto, and IPEC
shall represent and warrant that such shares are then free and clear of all
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever, other than those imposed by SpeedFam.
(d) SpeedFam Call. If IPEC has acquired Option Shares pursuant to
exercise of the Option (the date of any Closing relating to any such exercise
herein referred to as an "Exercise Date") and no Acquisition Proposal with
respect to SpeedFam has been consummated at any time after the date of this
Agreement and prior to the date one year following such Exercise Date (nor has
SpeedFam entered into a definitive agreement or letter of intent with respect to
such an Acquisition Proposal which agreement or letter of intent remains in
effect at the end of such year), then, at any time after the date one year
following such Exercise Date and prior to the date eighteen months following
such Exercise Date, SpeedFam may require IPEC, upon delivery to IPEC of written
notice, to sell to SpeedFam any SpeedFam Shares held by IPEC as of the day that
is ten business days after the date of such notice, up to a number of shares
equal to the number of Option Shares acquired by IPEC pursuant to exercise of
the Option in connection with such Exercise Date. The per share purchase price
for such sale (the "SpeedFam Call Price") shall be equal to the Exercise Price
plus interest at 7% per annum, less any dividends paid on the SpeedFam Shares to
be purchased by SpeedFam pursuant to this Section 7(d). The closing of any sale
of SpeedFam Shares pursuant to this Section 7(d) shall take place at the
principal offices of SpeedFam at a time and on a date designated by SpeedFam in
the aforementioned notice to IPEC, which date shall be no more than 20 and no
less than 12 business days from the date of such notice. The SpeedFam Call Price
shall be paid in immediately available funds,
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provided that, in the event IPEC has acquired Option Shares pursuant to exercise
of the Option by issuance and delivery of IPEC Shares, at the option of
SpeedFam, the SpeedFam Call Price for part or all of any purchase of SpeedFam
Shares pursuant to this Section 7(d), up to a number of such shares equal to the
number of Option Shares acquired by IPEC by issuance and delivery of IPEC
Shares, shall be paid by delivery of a number of IPEC Shares equal to the
SpeedFam Call Price divided by the closing sale price of IPEC Shares on the
Nasdaq National Market for the trading day immediately preceding the date of the
Exercise Date on which the Option Shares to be purchased by SpeedFam pursuant to
this Section 7(d) were originally issued to IPEC.
(e) Restrictions on Transfer. Until the expiration of the Purchase
Period, SpeedFam shall not sell, transfer or otherwise dispose of any IPEC
Shares acquired by it pursuant to this Agreement.
SECTION 8. REGISTRATION RIGHTS
(a) Following the termination of the Merger Agreement, each party
hereto (a "Holder") may by written notice (a "Registration Notice") to the other
party (the "Registrant") request the Registrant to register under the Securities
Act all or any part of the shares acquired by such Holder pursuant to this
Agreement (the "Registrable Securities") in order to permit the sale or other
disposition of such shares pursuant to a bona fide firm commitment underwritten
public offering in which the Holder and the underwriters shall effect as wide a
distribution of such Registrable Securities as is reasonably practicable and
shall use reasonable efforts to prevent any person or group from purchasing
through such offering shares representing more than 1% of the outstanding shares
of Common Stock of the Registrant on a fully diluted basis (a "Permitted
Offering"); provided, however, that any such Registration Notice must relate to
a number of shares equal to at least 2% of the outstanding shares of Common
Stock of the Registrant on a fully diluted basis and that any rights to require
registration hereunder shall terminate with respect to any shares that may be
sold pursuant to Rule 144(k) under the Securities Act. The Registration Notice
shall include a certificate executed by the Holder and its proposed managing
underwriter, which underwriter shall be an investment banking firm of nationally
recognized standing (the "Manager"), stating that (i) the Holder and the Manager
have a good faith intention to commence a Permitted Offering and (ii) the
Manager in good faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at a per share
price equal to at least 80% of the per share average of the closing sale prices
of the Registrant's Common Stock on the Nasdaq National Market for the twenty
trading days immediately preceding the date of the Registration Notice. The
Registrant shall thereupon have the option exercisable by written notice
delivered to the Holder within ten business days after the receipt of the
Registration Notice, irrevocably to agree to purchase all or any part of the
Registrable Securities for cash at a price (the "Option Price" equal to the
product of (i) the number of Registrable Securities so purchased and (ii) the
per share average of the closing sale prices of the Registrant's Common Stock on
the Nasdaq National Market for the twenty trading days immediately preceding the
date of the Registration Notice. Any such purchase of Registrable Securities by
the Registrant hereunder shall take place at a closing to be held at the
principal executive offices of the Registrant or its counsel at any reasonable
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date and time designated by the Registrant in such notice within 10 business
days after delivery of such notice. The payment for the shares to be purchased
shall be made by delivery at the time of such closing of the Option Price in
immediately available funds.
(b) If the Registrant does not elect to exercise its option to purchase
pursuant to Section 8(a) with respect to all Registrable Securities, the
Registrant shall use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the unpurchased
Registrable Securities requested to be registered in the Registration Notice;
provided, however, that (i) neither party shall be entitled to more than an
aggregate of two effective registration statements hereunder and (ii) the
Registrant will not be required to file any such registration statement during
any period of time (not to exceed 40 days after a Registration Notice in the
case of clause (A) below or 90 days after a Registration Notice in the case of
clauses (B) and (C) below) when (A) the Registrant is in possession of material
non-public information which it reasonably believes would be detrimental to be
disclosed at such time and, in the written opinion of counsel to such
Registrant, such information would have to be disclosed if a registration
statement were filed at that time; (B) such Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) such Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant.
If consummation of the sale of any Registrable Securities pursuant to a
registration hereunder does not occur within 180 days after the filing with the
SEC of the initial registration statement therefor, the provisions of this
Section 8 shall again be applicable to any proposed registration, it being
understood that neither party shall be entitled to more than an aggregate of two
effective registration statements hereunder. The Registrant shall use all
reasonable efforts to cause any Registrable Securities registered pursuant to
this Section 8 to be qualified for sale under the securities or blue sky laws of
such jurisdictions as the Holder may reasonably request and shall continue such
registration or qualification in effect in such jurisdictions; provided,
however, that the Registrant shall not be required to qualify to do business in,
or consent to general service of process in, any jurisdiction by reason of this
provision.
(c) The registration rights set forth in this Section 8 are subject to
the condition that the Holder shall provide the Registrant with such information
with respect to such Holder's Registrable Securities, the plan for distribution
thereof, and such other information with respect to such Holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to enable the
Registrant to include in a registration statement all material facts required to
be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 8 shall be effected at
the Registrant's expense, except for underwriting discounts and commissions and
the fees and expenses of counsel to the Holder, and the Registrant shall provide
to the underwriters such documentation (including certificates, opinions of
counsel and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings and as such underwriters may reasonably require.
In connection with any registration, the Holder and the Registrant agree to
enter into an underwriting agreement reasonably acceptable to each
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such party, in form and substance customary for transactions of this type with
the underwriters participating in such offering.
(e) Indemnification. (i) The Registrant will indemnify the Holder, each
of its directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Registrant of any rule or regulation
promulgated under the Securities Act applicable to the Registrant in connection
with any such registration, qualification or compliance, and the Registrant will
reimburse the Holder and each of its directors and officers and each person who
controls the Holder within the meaning of Section 15 of the Securities Act, and
each underwriter for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Registrant will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Registrant by such Holder or director or
officer or controlling person or underwriter seeking indemnification.
(ii) The Holder will indemnify the Registrant, each of its directors
and officers and each underwriter of the Registrant's securities covered by such
registration statement and each person who controls the Registrant within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Holder of any rule or regulation
promulgated under the Securities Act applicable to the Holder in connection with
any such registration, qualification or compliance, and will reimburse the
Registrant, such directors, officers or control persons or underwriters for any
legal or any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Registrant by the Holder for use therein, provided that
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in no event shall any indemnity under this Section 8(e) exceed the gross
proceeds of the offering received by the Holder.
(iii) Each party entitled to indemnification under this Section 8(e)
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnifying Party shall pay such
expense if representation of the Indemnified Party by counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 8(e) unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's ability
to defend such action. No Indemnifying Party, in the defense of any such claim
or litigation shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party shall be required to indemnify any Indemnified
Party with respect to any settlement entered into without such Indemnifying
Party's prior consent (which shall not be unreasonably withheld).
(f) Contribution. If the indemnification from the Indemnifying Party
provided for in Section 8(e) is found, pursuant to a final judicial
determination not subject to appeal, to be unavailable to an Indemnified Party
hereunder or insufficient in respect of any claims, losses, damages and
liabilities incurred by such Indemnified Party, then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the claims,
losses, damages and liabilities paid or payable by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and the Indemnified Party in connection with the actions or
omissions that resulted in such claims, losses, damages and liabilities, as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action or omission in question, including any
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
claims, losses, damages and liabilities referred to above shall be deemed to
include any legal or other expenses reasonably incurred by such party in
connection with any investigation or proceeding.
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SECTION 9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; RIGHTS PLANS
(a) In the event of any change in the SpeedFam Shares by reason of
stock dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like, the
type and number of shares or securities subject to the Option, the Exercise
Ratio and the Exercise Price shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction so that
IPEC shall receive, upon exercise of the Option, the number and class of shares
or other securities or property that IPEC would have received in respect of the
SpeedFam Shares if the Option had been exercised immediately prior to such event
or the record date therefor, as applicable.
(b) At any time during which the Option is exercisable, and at any time
after the Option is exercised (in whole or in part, if at all), SpeedFam shall
not adopt a shareholders rights plan (a so-called "poison pill"), and IPEC shall
not amend the IPEC Rights Plan or adopt a new shareholders rights plan, that
contains provisions for the distribution of rights thereunder as a result of the
other party being the beneficial owner of shares of the first party by virtue of
the Option being exercisable or having been exercised (or as a result of such
other party beneficially owning shares issuable in respect of any Option
Shares). It is understood, however, that following termination (if any) of the
Merger Agreement, a party may adopt (or in the case of IPEC, adopt and/or amend)
a shareholders rights plan, that contains provisions for the distribution of
rights thereunder as a result of the other party being the beneficial owner of
shares of the first party in addition to those that may be beneficially owned by
virtue of the Option being exercisable or having been exercised (or as a result
of such other party beneficially owning shares issuable in respect of any Option
Shares).
SECTION 10. RESTRICTIVE LEGENDS
Each certificate representing Option Shares issued to IPEC hereunder, and each
certificate representing IPEC Shares delivered to SpeedFam at a Closing, shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY IF SO
REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN
THE STOCK OPTION AGREEMENT DATED AS OF NOVEMBER 19,
1998, A COPY OF WHICH MAY BE OBTAINED FROM THE
ISSUER.
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SECTION 11. LISTING AND HSR FILING
SpeedFam, upon the request of IPEC, shall promptly file an application to list
the SpeedFam Shares to be acquired upon exercise of the Option for quotation on
the Nasdaq National Market and shall use its best efforts to obtain approval of
such listing as soon as practicable. IPEC, upon the request of SpeedFam, shall
promptly file an application to list the IPEC Shares issued and delivered to
SpeedFam pursuant to Section 4 for quotation on the Nasdaq National Market and
shall use its best efforts to obtain approval of such listing as soon as
practicable. Promptly after the date hereof, each of the parties hereto shall
promptly file with the Federal Trade Commission and the Antitrust Division of
the United States Department of Justice all required premerger notification and
report forms and other documents and exhibits required to be filed under the HSR
Act to permit the acquisition of the SpeedFam Shares subject to the Option at
the earliest possible date.
SECTION 12. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing contained
in this Agreement, express or implied, is intended to confer upon any person
other than the parties hereto and their respective successors and permitted
assigns any rights or remedies of any nature whatsoever by reason of this
Agreement. Any shares sold by a party in compliance with the provisions of
Section 8 shall, upon consummation of such sale, be free of the restrictions
imposed with respect to such shares by this Agreement and any transferee of such
shares shall not be entitled to the rights of such party. Certificates
representing shares sold in a registered public offering pursuant to Section 8
shall not be required to bear the legend set forth in Section 10.
SECTION 13. SPECIFIC PERFORMANCE
The parties recognize and agree that if for any reason any of the provisions of
this Agreement are not performed in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused for
which money damages would not be an adequate remedy. Accordingly, each party
agrees that in addition to other remedies the other party shall be entitled to
an injunction restraining any violation or threatened violation of the
provisions of this Agreement. In the event that any action shall be brought in
equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
SECTION 14. ENTIRE AGREEMENT
This Agreement and the Merger Agreement (including the appendices thereto)
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
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SECTION 15. FURTHER ASSURANCES
Each party will execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 16. VALIDITY
The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the other provisions of this Agreement,
which shall remain in full force and effect. In the event any Governmental
Entity of competent jurisdiction holds any provision of this Agreement to be
null, void or unenforceable, the parties hereto shall negotiate in good faith
and shall execute and deliver an amendment to this Agreement in order, as nearly
as possible, to effectuate, to the extent permitted by law, the intent of the
parties hereto with respect to such provision.
SECTION 17. NOTICES
All notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally or by commercial delivery service, or sent
via telecopy (receipt confirmed) to the parties at the following addresses or
telecopy numbers (or at such other address or telecopy numbers for a party as
shall be specified by like notice):
(1) if to IPEC, to: Integrated Process Equipment Corp.
4717 East Hilton Avenue
Phoenix, Arizona 85034
Attention: Roger D. McDaniel
Telephone No.: (602) 517-7200
Telecopy No.: (602) 517-6016
with a copy to: Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Francis Currie
Telephone No.: (650) 493-9300
Telecopy No.: (650) 845-5000
(2) if to SpeedFam, to: SpeedFam International, Inc.
305 N. 54th Street
Chandler, Arizona 85226-2416
Attention: ____________________
Telephone No.: (602) 705-2100
Telecopy No.: (602) 705-2122
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with a copy to: Chapman and Cutler
111 West Monroe Street
Chicago, Illinois 60603
Attention: Jonathan A. Koff
Telephone No.: (312) 845-3000
Telecopy No.: (312) 701-2361
SECTION 18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of Illinois applicable to agreements made and to be performed entirely
within such State.
SECTION 19. COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall be
deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
SECTION 20. EXPENSES
Except as otherwise expressly provided herein or in the Merger Agreement, all
costs and expenses incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such expenses.
SECTION 21. AMENDMENTS; WAIVER
This Agreement may be amended by the parties hereto and the terms and conditions
hereof may be waived only by an instrument in writing signed on behalf of each
of the parties hereto, or, in the case of a waiver, by an instrument signed on
behalf of the party waiving compliance.
SECTION 22. ASSIGNMENT
Neither of the parties hereto may sell, transfer, assign or otherwise dispose of
any of its rights or obligations under this Agreement or the Option created
hereunder to any other person, without the express written consent of the other
party, except that the rights and obligations hereunder shall inure to the
benefit of and be binding upon any successor of a party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers as of the date first above written.
INTEGRATED PROCESS EQUIPMENT CORP.
By /s/ Roger D. McDaniel
---------------------------------------------
Name: Roger D. McDaniel
Title: President and Chief Executive Officer
SPEEDFAM INTERNATIONAL, INC.
By /s/ Richard J. Faubert
---------------------------------------------
Name: Richard J. Faubert
Title: President and Chief Executive Officer