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Exhibit 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") dated November 23, 1999 is
between Fujimi Incorporated, a Japanese corporation ("Buyer"), and SpeedFam-IPEC
Inc., an Illinois corporation ("Seller").
Seller owns one thousand (1,000) shares of common stock of Fujimi Corporation,
an Illinois corporation (the "Company") (the "Shares"). The Shares constitute
fifty percent (50%) of the issued and outstanding capital stock of the Company.
The remaining shares of the Company are owned by Buyer. Buyer desires to
purchase from Seller and Seller desires to sell to Buyer all of the Shares on
the terms and subject to the conditions set forth herein. The transactions
contemplated in this Agreement are herein referred to as the "Purchase."
ARTICLE 1.
PURCHASE OF SHARES
1.1 PURCHASE OF SHARES. Subject to the terms and conditions set forth
herein, at the Closing (as defined below) Seller will sell all of the Shares to
Buyer and Buyer will purchase all of the Shares from Seller, the Shares
constituting fifty percent (50%) of the issued and outstanding capital stock of
the Company as of the Closing.
1.2 PURCHASE PRICE. Buyer will pay to Seller for the Shares Nine
Million Eight Hundred Thousand Dollars ($9,800,000) (the "Purchase Price").
1.3 PAYMENT OF PURCHASE PRICE. Except as provided in Paragraph 5.2
below, the full Purchase Price will be paid to Seller, in cash or readily
available U.S. funds, at Closing.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this Agreement and purchase the
Shares, Seller represents and warrants that:
2.1 ORGANIZATION AND CORPORATE POWER. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Illinois.
Seller has requisite corporate power and authority to sell the Shares to Buyer.
The originals or copies of the Company's charter documents, bylaws and corporate
records that have been furnished to Buyer's counsel are, to the best of Seller's
knowledge, current, correct and complete.
2.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement and all other agreements contemplated hereby to which Seller is a
party have been duly authorized by Seller, constitute the legal, valid and
binding obligation of Seller, and will be enforceable against Seller except as
the enforceability thereof may be limited by the application of bankruptcy,
insolvency, moratorium or similar laws affecting the rights of creditors
generally or judicial limits on the right of specific performance.
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2.3 NO CONFLICT WITH OTHER INSTRUMENTS OR AGREEMENTS. The execution,
delivery and performance by Seller of this Agreement and all other agreements
contemplated hereby to which Seller is a party will not result in a breach or
violation of, or constitute a default under, its charter documents or bylaws or
any material agreement to which Seller is a party or by which Seller is bound.
2.4 GOVERNMENTAL AUTHORITIES. Other than securities related filings,
Seller is not required to submit any notice, report or other filing to any
governmental or regulatory authority in connection with the execution and
delivery by Seller of this Agreement and the consummation of the Purchase; and
no consent, approval or authorization of any governmental or regulatory
authority is required to be obtained by Seller or any affiliate in connection
with Seller's execution, delivery and performance of this Agreement and the
consummation of the Purchase.
2.5 LITIGATION. To the best of Seller's knowledge, there are no
actions, suits, proceedings, orders, investigations or claims pending or overtly
threatened against the Company or its property, either at law or in equity, or
before or by any governmental department, commission, board, bureau, agency or
instrumentality; the Company is not subject to any arbitration proceeding under
collective bargaining agreements or otherwise and to the best knowledge of the
directors and responsible officers of Seller, there is no basis for any of the
foregoing.
2.6 COMPLIANCE WITH LAWS. To the best of Seller's knowledge, the
Company is, in the conduct of its business, in compliance with all laws,
statutes, ordinances, regulations, orders, judgments or decrees applicable to
it, the enforcement of which, if the Company were not in compliance therewith,
would have a materially adverse effect upon its business.
2.7 BROKERAGE. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the Purchase based on any
arrangement or agreement binding upon Seller or, to the best of Seller's
knowledge, upon the Company.
2.8 DISCLOSURE. Neither this Agreement nor any document attached to
this Agreement and prepared or supplied to Buyer by or on behalf of Seller with
respect to the Purchase contains any untrue statement of a material fact or
omits a material fact necessary to make each statement contained herein and
therein, to the best of Seller's knowledge, not misleading. No responsible
officer or director of Seller has intentionally concealed any fact known by such
person to have a material adverse effect upon the existing or expected financial
condition, operating results, assets, customer relations, employer relations or
business prospects of the Company.
2.9 KNOWLEDGE. Buyer acknowledges and agrees that for purposes of this
Agreement, "Seller's knowledge" shall be defined as the actual knowledge of
James N. Farley and Makoto Kouzuma
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF BUYER
As material inducement to Seller to enter into this Agreement and sell the
Shares, Buyer hereby represents and warrants to Seller as follows:
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3.1 ORGANIZATION; POWER. Buyer is a corporation duly incorporated and
validly existing under the laws of Japan and has all requisite corporate power
and authority to enter into this Agreement and perform its obligations
hereunder.
3.2 AUTHORIZATION. The execution, delivery and performance by Buyer of
this Agreement and all other agreements contemplated hereby to which Buyer is a
party have been duly and validly authorized by all necessary corporate action of
Buyer, and this Agreement and each such other agreement, when executed and
delivered by the parties thereto, will constitute the legal, valid and binding
obligation of Buyer enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency and
similar statutes affecting creditors' rights generally and judicial limits on
equitable remedies.
3.3 NO CONFLICT WITH OTHER INSTRUMENTS OR AGREEMENTS. The execution,
delivery and performance by Buyer of this Agreement and all other agreements
contemplated hereby to which Buyer is a party will not result in a breach or
violation of, or constitute a default under, its charter documents or bylaws or
any material agreement to which Buyer is a party or by which Buyer is bound.
3.4 GOVERNMENTAL AUTHORITIES. Except as set forth in Exhibit A attached
hereto,
3.4.1 Buyer is not required to submit any notice, report or other
filing to any governmental or regulatory authority in connection with the
execution and delivery by Buyer of this Agreement and the consummation of the
Purchase; and
3.4.2 no consent, approval or authorization of any governmental or
regulatory authority is required to be obtained by Buyer or any affiliate in
connection with Buyer's execution, delivery and performance of this Agreement
and the consummation of the Purchase.
3.5 LITIGATION. There are no actions, suits, proceedings or
governmental investigations or inquiries pending or, to the knowledge of Buyer,
threatened against Buyer or its properties, assets, operations or businesses
that might delay, prevent or hinder the consummation of the Purchase.
3.6 INVESTMENT REPRESENTATIONS.
3.6.1 Buyer is acquiring the Shares for its own account with the
present intention of holding such securities for purposes of investment, and
Buyer has no present intention of selling such securities in a public
distribution in violation of United States securities laws or any applicable
state securities laws. During the course of the negotiation of this Agreement,
Buyer has reviewed information provided to it by the Company and has had the
opportunity to ask questions of and receive answers from representatives of the
Company and Seller concerning the Company, the securities offered and sold
hereby, and the Purchase, and to obtain certain additional information requested
by Buyer. Further, Buyer is currently an owner of fifty percent (50%) of the
outstanding stock of the Company and in that capacity, acknowledges that it has
access to a broad range of information with respect to the Company, including
its financial statements, contracts, personal property, real property and
personnel matters.
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3.6.2 Buyer understands that the Shares to be Purchased have not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent as expressed herein.
3.6.3 Buyer understands that the Shares cannot be resold in a
transaction to which the Securities Act applies unless subsequently registered
under the Securities Act or an exemption from such registration is available.
Buyer is aware of the provisions of Rule 144 promulgated under the Securities
Act which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions.
3.6.4 Buyer understands that no public market now exists for any
of the securities issued by the Company and it is uncertain that a public market
will ever exist for the Shares.
3.6.5 Buyer understands that the certificates for the Shares will
bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.
3.7 EMPLOYMENT REPRESENTATIONS. Buyer will use reasonable efforts to
keep as employees of the Company all individuals employed by the Company at
Closing, but Seller acknowledges that for practical business reasons, Buyer
makes no further guarantees or promises in this regard.
3.8 BROKERAGE. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the purchase based on any
arrangement or agreement entered into by Buyer and binding upon Seller.
ARTICLE 4.
RELATED AGREEMENTS
4.1 CONFIDENTIALITY AGREEMENT. At Closing Buyer and Seller will enter
into a Confidentiality Agreement in the form attached hereto as Exhibit B.
4.2 NO-HIRE AGREEMENTS. At Closing Buyer and Seller will enter into
No-Hire Agreements in the forms attached hereto as Exhibit C-1 and C-2.
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ARTICLE 5.
ESCROW
To the best of Buyer's and Seller's knowledge, the Company does not have any
liability or obligation (whether absolute, accrued, contingent or other, and
whether due or to become due) that is not accrued, reserved against or disclosed
in the audited balance sheet of the Company as at December 31, 1998 and/or
unaudited balance sheet as at June 30, 1999, other than liabilities incurred in
the ordinary course of business consistent with past practices of the Company,
which individually do not exceed Twenty-Five Thousand Dollars ($25,000) per
liability or obligation. Buyer and Seller acknowledge, however, the possibility
that unknown liabilities or obligations may exist or arise that could affect the
value of the Shares had such liabilities or obligations been known to Buyer and
the Seller at the time of Closing. To protect against such unknown liabilities
and obligations:
5.1 ESCROW. There shall be established at Closing an Escrow pursuant to
the terms of an Escrow Agreement in the form attached hereto as Exhibit D.
5.2 ESCROW FUNDING. Of the purchase price to be paid at Closing, the
sum of Five Hundred Thousand Dollars ($500,000) shall be paid into the Escrow
established pursuant to the Escrow Agreement, to be held by the Escrow Agent and
paid or distributed, as the case may be, as provided in the Escrow Agreement.
5.3 LIMITATION ON LIABILITY. Buyer acknowledges and agrees that
Seller's liability for the unknown obligations or liabilities described in this
Article 5 shall be limited to the funds placed in the Escrow.
ARTICLE 6.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
Each and every obligation of Buyer under this Agreement is subject to the
satisfaction, at or before the Closing, of each of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES: PERFORMANCE. Each of the
representations and warranties made by Seller herein will be true and correct in
all material respects as of the Closing except for changes contemplated,
permitted or required by this Agreement. Seller will have performed and complied
with all agreements, covenants and conditions required by this Agreement to be
performed and complied with prior to the Closing, and Buyer will have received,
at the Closing, a certificate of Seller, signed by the Chairman of Seller,
stating that each of the representations and warranties made by the Seller
herein is true and correct in all material respects as of the Closing except for
changes contemplated, permitted or required by this Agreement and that Seller
has performed and complied with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by it prior to the
Closing.
6.2 CORPORATE ACTION. Seller will have furnished to Buyer:
6.2.1 the corporate charter and all amendments thereto and
restatements thereof of the Company;
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6.2.2 the current bylaws and minutes of all meetings and consents
of shareholders and directors of the Company;
6.2.3 each certificate of qualification to do business as a
foreign corporation of the Company;
6.2.4 all stock transaction records of the Company;
6.2.5 a copy, certified by the secretary or an assistant secretary
of Seller, of the resolutions of the parent company of the Seller authorizing
the execution, delivery and performance of this Agreement, the Confidentiality
Agreement, the No-Hire Agreements, and the Escrow Agreement; and
6.2.6 resignations of all employees of Seller who are officers or
directors of the Company or trustees of the Company's Employees' Savings and
Profit Sharing Trust.
ARTICLE 7.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
Each and every obligation of Seller under this Agreement is subject to the
satisfaction, at or before the Closing, of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE. Each of the
representations and warranties made by Buyer herein will be true and correct in
all material respects as of the Closing; Buyer will have performed and complied
with all agreements, covenants and conditions required to be performed and
complied by it prior to the Closing; and Seller will have received, a
certificate of Buyer, signed by the Chairman of Buyer, stating that each of the
representations and warranties made by Buyer herein is true and correct in all
material respects as of the Closing.
7.2 CORPORATE ACTION. Buyer will have furnished to Seller a copy,
certified by the Chairman of Buyer, of the resolutions of Buyer authorizing the
execution, delivery and performance of this Agreement, the Confidentiality
Agreement, the No-Hire Agreements and the Escrow Agreement.
ARTICLE 8.
MISCELLANEOUS
8.1 BINDING EFFECT. This Agreement shall be binding on and inure to the
benefit of the parties and their successors and assigns.
8.2 NOTICES. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be mailed by
certified mail, return receipt requested, postage prepaid, addressed to the
parties as follows:
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SELLER: Mr. James N. Farley
Co-Chairman of the Board
SpeedFam - IPEC Inc.
305 N. 54th Street
Chandler, AZ 85226-2416
BUYER: Mr. I. Koshiyama
Chairman
Fujimi Incorporated
1-1 Chiryo-2, Nishibiwajima-cho
Aichi Pref. 452-8502, Japan
Such notice or other communication shall be deemed to be given at the expiration
of the fifth day after the date of the deposit in the United States mail. The
addresses to which notices or other communications shall be mailed may be
changed from time to time by giving written notice to the other party as
provided in this Section 8.2.
8.3 ATTORNEYS' FEES. If any suit or action is filed by any party to
enforce this Agreement or otherwise with respect to the subject matter of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees incurred in preparation or in prosecution or defense of such
suit or action as fixed by the trial court, and if any appeal is taken from the
decision of the trial court, reasonable attorneys' fees as fixed by the
appellate court.
8.4 AMENDMENTS. This Agreement may be amended only by an instrument in
writing executed by all the parties.
8.5 HEADINGS. The headings used in this Agreement are solely for
convenience of reference, are not part of this Agreement, and are not to be
considered in construing or interpreting this Agreement.
8.6 ENTIRE AGREEMENT. This Agreement (including the exhibits) sets
forth the entire understanding of the parties with respect to the subject matter
of this Agreement and supersedes any and all prior understandings and
agreements, whether written or oral, between the parties with respect to such
subject matter.
8.7 SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any respect for any reason, the validity and enforceability
of any such provision in any other respect and of the remaining provisions of
this Agreement shall not be in any way impaired.
8.8 WAIVER. A provision of this Agreement may be waived only by a
written instrument executed by the party waiving compliance. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
Failure to enforce any provision of this Agreement shall not operate as a waiver
of such provision or any other provision.
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8.9 TIME OF THE ESSENCE. Time is of the essence for each and every
provision of this Agreement, including all exhibits hereto.
8.10 EXHIBITS. The exhibits referenced in this Agreement are a part of
this Agreement as if fully set forth in this Agreement.
8.11 VENUE. This Agreement has been made entirely within the State of
Illinois This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois If any suit or action is filed by any party to
enforce this Agreement or otherwise with respect to the subject matter of this
Agreement, venue shall be in the federal or state courts in Cook County,
Illinois.
FUJIMI INCORPORATED, Buyer
By: /s/
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I. Koshiyama, Chairman
SPEEDFAM-IPEC, INC., Seller
By: /s/
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James N. Farley, Co-Chairman
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EXHIBIT A
APPROVALS AND NOTIFICATIONS
1. Post-transaction notice to Ministry of Finance within twenty (20) days of
Closing.