<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): November 23, 1999
SPEEDFAM-IPEC, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Illinois 0-26784 36-2421613
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(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
305 North 54th Street
Chandler, AZ 85226
-------------------------------------------------------------
(Address, including zip code, of principal executive offices)
Registrant's telephone number, including area code: (480) 705-2100
Not Applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On November 23, 1999, SpeedFam-IPEC, Inc., a supplier of high-throughput
chemical mechanical planarization (CMP) systems for the semiconductor industry
and flat surface processing systems for the thin film memory disk media and
silicon wafer industries, completed the sale of its 50% interest in a joint
venture, Fujimi Corporation, to its 50% partner, Fujimi Incorporated.
Fujimi Corporation sells polishing liquids (slurries) manufactured by
Fujimi Incorporated, a supplier and distributer of slurries in the Far East,
primarily to silicon wafer, thin film memory disk media and general industrial
manufacturers in North and South America.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro Forma Financial Information.
(c) Exhibits.
2.1 Stock Purchase Agreement, dated November 23, 1999, between the
Company and Fujimi Incorporated.
2.2 Confidentiality Agreement, dated November 23, 1999, between the
Company and Fujimi Incorporated.
2.3 No-Hire Agreement, dated November 23, 1999, between the Company
and Fujimi Incorporated.
2.4 No-Hire Agreement, dated November 23, 1999, between the Company
and Fujimi Incorporated.
2.5 Escrow Agreement, dated November 23, 1999, between the Company
and Fujimi Incorporated.
99.1 Press Release dated November 23, 1999.
<PAGE> 3
Pursuant to the requirements of the Securities Exchange Act of 1934,
SpeedFam-IPEC, Inc. has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
SpeedFam-IPEC, Inc.
By: /s/ J. Michael Dodson
------------------------------
J. Michael Dodson
Chief Financial Officer
Date: December 7, 1999
<PAGE> 4
SPEEDFAM-IPEC, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The following unaudited pro forma condensed consolidated financial statements
(the "Pro Forma Financial Statements") are based on the historical consolidated
financial statements of SpeedFam-IPEC, Inc. (the "Company").
The unaudited pro forma condensed consolidated balance sheet gives effect to the
disposition as if it was consummated on August 31, 1999. The unaudited pro forma
condensed consolidated statements of operations give effect to the disposition
as if it was consummated as of the beginning of the earliest period presented.
The pro forma adjustments are more fully described in the accompanying notes.
The Pro Forma Financial Statements are presented for informational purposes only
and do not purport to be indicative of the results of operations that actually
would have been achieved had the disposition been consummated on the date or for
the periods indicated and do not purport to be indicative of the financial
position or results of operations as of any future date or for any future
period. The Pro Forma Financial Statements should be read in connection with the
Company's Annual Report on Form 10-K for the year ended May 31, 1999, the
Consolidated Financial Statements of the Company and the related notes thereto
and the Company's Quarterly Report on Form 10-Q for the three months ended
August 31, 1999.
<PAGE> 5
SPEEDFAM-IPEC, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Balance Sheet
August 31, 1999
(in thousands)
<TABLE>
<CAPTION>
SPEEDFAM - PRO FORMA
IPEC, INC PRO FORMA SPEEDFAM -
ASSETS AUGUST 31, 1999 ADJUSTMENTS IPEC, INC.
--------------- ----------- ----------
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 67,701 9,500 (a) 77,201
Short-term investments 65,126 -- 65,126
Trade accounts receivable, less allowance for doubtful
accounts of $5,595 in 1999 and $4,487 in 1998 78,543 -- 78,543
Escrow -- 500 (a) 500
Inventories 80,257 -- 80,257
Prepaid expenses and other current assets 9,616 -- 9,616
--------- --------- ---------
Total current assets 301,243 10,000 311,243
Investments in affiliates 25,342 (3,754)(a) 21,588
Property, plant, and equipment, net 85,776 -- 85,776
Other assets 13,934 -- 13,934
--------- --------- ---------
Total assets $ 426,295 6,246 432,541
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 1,371 -- 1,371
Accounts payable 23,730 -- 23,730
Customer deposits 2,418 -- 2,418
Accrued expenses 36,340 -- 36,340
--------- --------- ---------
Total current liabilities 63,859 -- 63,859
--------- --------- ---------
Long-term liabilities:
Long-term debt 115,864 -- 115,864
Other liabilities 9,729 -- 9,729
--------- --------- ---------
Total long-term liabilities 125,593 -- 125,593
--------- --------- ---------
Stockholders' equity:
Common stock, no par value, 96,000 shares authorized, 29,418 and
29,392 shares issued and outstanding at August 31, 1999 1 -- 1
Additional paid-in capital 427,413 -- 427,413
Retained earnings (191,274) 6,246 (a) (185,028)
Accumulated comprehensive income 703 -- 703
--------- --------- ---------
Total stockholders' equity 236,843 6,246 243,089
--------- --------- ---------
Total liabilities and stockholders' equity $ 426,295 6,246 432,541
========= ========= =========
</TABLE>
See accompanying notes to unaudited pro forma condensed consolidated financial
statements.
<PAGE> 6
SPEEDFAM-IPEC, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Statement of Operations
Year ended May 31, 1999
(in thousands, except per share data)
<TABLE>
<CAPTION>
SPEEDFAM - PRO FORMA
IPEC, INC. PRO FORMA SPEEDFAM -
MAY 31, 1999 ADJUSTMENTS IPEC, INC.
------------ ----------- ----------
<S> <C> <C> <C>
Revenue:
Net sales $ 210,108 -- 210,108
Commissions from affiliate 2,217 -- 2,217
--------- --------- ---------
Total revenue 212,325 -- 212,325
Cost of sales 182,463 -- 182,463
--------- --------- ---------
Gross margin 29,862 -- 29,862
--------- --------- ---------
Operating expenses:
Research, development, and engineering 70,243 -- 70,243
Selling, general, and administrative 68,237 -- 68,237
Merger, integration, and restructuring 40,300 -- 40,300
--------- --------- ---------
Total operating expenses 178,780 -- 178,780
--------- --------- ---------
Operating loss (148,918) -- (148,918)
Other income 4,296 -- 4,296
--------- --------- ---------
Loss from consolidated companies
before income taxes (144,622) -- (144,622)
Income tax benefit (3,931) -- (3,931)
--------- --------- ---------
Loss from consolidated companies (140,691) -- (140,691)
Equity in net earnings of affiliates 916 (840)(b) 76
--------- --------- ---------
Net loss (139,775) (840) (140,615)
Cumulative dividend on preferred stock (174) -- (174)
--------- --------- ---------
Net loss attributable to common stockholders $(139,949) (840) (140,789)
========= ========= =========
Net earnings per common share-
basic and diluted:
Net loss $ (4.84) (4.87)
Net loss attributable to common stockholders (4.84) (4.87)
========= =========
Weighted average shares used in per share calculation -
basic and diluted: 28,890 28,890
========= =========
</TABLE>
See accompanying notes to unaudited pro forma condensed consolidated financial
statements.
<PAGE> 7
SPEEDFAM-IPEC, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Statement of Operations
Three months ended August 31, 1999
(in thousands, except per share data)
<TABLE>
<CAPTION>
SPEEDFAM - PRO FORMA
IPEC, INC PRO FORMA SPEEDFAM -
AUGUST 31, 1999 ADJUSTMENTS IPEC, INC.
--------------- ----------- ----------
<S> <C> <C> <C>
Revenue:
Net sales $ 50,327 -- 50,327
Commissions from affiliate -- -- --
-------- -------- --------
Total revenue 50,327 -- 50,327
Cost of sales 35,160 -- 35,160
-------- -------- --------
Gross margin 15,167 -- 15,167
-------- -------- --------
Operating expenses:
Research, development, and engineering 12,890 -- 12,890
Selling, general, and administrative 12,260 -- 12,260
-------- -------- --------
Total operating expenses 25,150 -- 25,150
-------- -------- --------
Operating loss (9,983) -- (9,983)
Other income (expense) (88) -- (88)
-------- -------- --------
Loss from consolidated companies
before income taxes (10,071) -- (10,071)
Income tax expense (benefit) -- -- --
-------- -------- --------
Loss from consolidated companies (10,071) -- (10,071)
Equity in net earnings of affiliates (892) (158)(b) (1,050)
-------- -------- --------
Net loss (10,963) (158) (11,121)
======== ======== ========
Net loss per common share -
basic and diluted: (0.37) (0.38)
======== ========
Weighted average shares used in per share calculation -
basic and diluted: 29,404 29,404
======== ========
</TABLE>
See accompanying notes to unaudited pro forma condensed consolidated financial
statements.
<PAGE> 8
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
(IN THOUSANDS)
NOTE 1: PRO FORMA ADJUSTMENTS
(a) Adjusted to reflect the elimination of the Company's investment in Fujimi
Incorporated, the recording of the proceeds from the sale and the gain
associated with the sale of the investment. Proceeds from the sale of the
Company investment in Fujimi Incorporated were $9,800 of which $500 was
placed into an escrow until the final value of liabilities can be
determined. The Company also received proceeds of $200 for entering into a
confidentiality agreement and an agreement not to hire the employees of
Fujimi Incorporated for a period of time subsequent to the transaction.
(b) Adjusted to reflect the elimination of the Company's 50% share of Fujimi
Incorporated earnings which was recorded under the equity method of
accounting.
NOTE 2: LOSS PER SHARE
In calculating net loss per common share for the year ended May 31, 1999 and the
three months ended August 31, 1999, common stock equivalent shares consisting of
stock options and convertible securities have been excluded because their
inclusion would have been anti-dilutive.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<S> <C>
2.1 Stock Purchase Agreement, dated November 23, 1999, between the Company and
Fujimi Incorporated.
2.2 Confidentiality Agreement, dated November 23, 1999, between the Company
and Fujimi Incorporated.
2.3 No-Hire Agreement, dated November 23, 1999, between the Company and Fujimi
Incorporated.
2.4 No-Hire Agreement, dated November 23, 1999, between the Company and Fujimi
Incorporated.
2.5 Escrow Agreement, dated November 23, 1999, between the Company and Fujimi
Incorporated.
99.1 Press Release dated November 23, 1999.
</TABLE>
<PAGE> 1
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.
<PAGE> 2
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:
<PAGE> 3
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.
<PAGE> 4
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.
<PAGE> 5
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;
<PAGE> 6
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:
<PAGE> 7
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.
<PAGE> 8
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/
----------------------
I. Koshiyama, Chairman
SPEEDFAM-IPEC, INC., Seller
By: /s/
----------------------
James N. Farley, Co-Chairman
<PAGE> 9
EXHIBIT A
APPROVALS AND NOTIFICATIONS
1. Post-transaction notice to Ministry of Finance within twenty (20) days of
Closing.
<PAGE> 1
Exhibit 2.2
CONFIDENTIALITY AGREEMENT
DATE: November 23, 1999
<TABLE>
<S> <C>
PARTIES: SPEEDFAM-IPEC Inc., ("Seller")
An Illinois corporation
FUJIMI INCORPORATED, ("Buyer")
a Japanese corporation
</TABLE>
RECITALS:
A. Pursuant to a Stock Purchase Agreement dated November 23, 1999 (the
"Purchase Agreement"), Seller has agreed to sell to Buyer and Buyer
has agreed to purchase from Seller one thousand (1,000) shares of
common stock of Fujimi Corporation, an Illinois corporation (the
"Company") which constitutes all of Seller's interest in the Company.
B. As a condition to closing the sale, Seller and Buyer are obligated to
enter into this Confidentiality Agreement.
AGREEMENT:
In consideration of the covenants set forth below, and in further
consideration of the payment of One Hundred Thousand Dollars ($100,000) paid by
Buyer to Seller, receipt and sufficiency for which is hereby acknowledged, the
parties agree as follows:
SECTION 1. DEFINITION OF CONFIDENTIAL INFORMATION
"Confidential Information" shall be deemed to include all notes,
analyses, compilations, studies, procedures, technical information, customer
lists, products each customer is purchasing from the Company, price lists,
chemical components of any abrasive/polishing compound manufactured by Buyer
and/or any of its affiliates, and other trade secrets, whether or not in
writing, relating to the operations and business of the Company. Confidential
Information does not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure or its
affiliates; (ii) was within Seller's possession prior to its ownership of any
equity interest in the Company; (iii) becomes available to Seller on a
non-confidential basis from a source other than the Company, Buyer or any of
their affiliates, provided that such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company, Buyer, any of their respective affiliates or any
other party with respect to such information; (iv) is developed by Seller
NONCOMPETITION AGREEMENT-PAGE 1
<PAGE> 2
independently of the Confidential Information or (v) is approved for release by
written authorization of the Company or Buyer.
SECTION 2. SELLER'S COVENANTS
Seller hereby covenants and agrees that for a period of five (5) years
from the date of this Agreement:
(1) That neither it nor its affiliates will disclose any of the
Confidential Information in any manner whatsoever unless either the Company or
Buyer has given its prior written consent.
(2) That it will use its best efforts to prevent any affiliate or any
officer, director, employee or agent of either Seller or an affiliate to breach
the terms of this Agreement and shall make all reasonable efforts to assure that
such individuals and/or entities comply with the same standards of
confidentiality as bind Seller pursuant to this Agreement.
(3) That notwithstanding the above, in the event Seller or its
affiliates is requested or required (by oral questions, interrogatories,
requests for information or documents in legal proceedings, subpoena, civil
investigative demand or other similar process) to disclose any of the
Confidential Information, Seller shall provide Buyer with prior written notice
as is practical under the circumstances of any such request or requirement so
that Buyer may take whatever action it deems appropriate. If Seller or any of
its affiliates is legally compelled to disclose the Confidential Information to
any tribunal or is requested by any governmental regulatory organization to
provide the Confidential Information, it or its affiliate may, without liability
hereunder, disclose to such tribunal or governmental regulatory organization
only that portion of the Confidential Information which it is legally required
to disclose or that is requested by any governmental regulatory organization, as
the case may be, provided that Seller or its affiliates must exercise their best
efforts to preserve the confidentiality of the Confidential Information,
including, without limitation, by cooperating with the Buyer as the Buyer may
reasonably request.
SECTION 3. ENFORCEMENT
It is recognized that, in the event of breach of covenants of Seller,
damage to Buyer would be difficult if not impossible to ascertain. It is
therefore agreed that Buyer, in addition to and without limiting any other
remedy or right that it may have, shall have the right to an injunction against
Seller and/or its affiliates, as the case may be, issued by a court of competent
jurisdiction enjoining such breach.
SECTION 4. LITIGATION
If any suit or action (including any appeal) is brought to enforce this
Agreement, the prevailing party shall be entitled to receive from the other
party reasonable attorney fees and costs incurred in such litigation, including
any appeals.
NONCOMPETITION AGREEMENT-PAGE 2
<PAGE> 3
SECTION 5. SEVERABILITY
If any provision of this Agreement is deemed to be illegal or otherwise void,
invalid, or unenforceable, the provision shall be disregarded and the remainder
of this Agreement without that provision shall not be affected and shall remain
in full force and effect.
SECTION 6. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with and
under the laws of the state of Illinois.
IN WITNESS WHEREOF, the Seller and Buyer have caused this Agreement to
be executed by their duly authorized representatives, all as of the date first
above written.
SELLER:
SPEEDFAM-IPEC Inc.
By: /s/
------------------------------------
James N. Farley, Co-Chairman
BUYER:
FUJIMI INCORPORATED
By: /s/
------------------------------------
I. Koshiyama, Chairman
NONCOMPETITION AGREEMENT-PAGE 3
<PAGE> 1
Exhibit 2.3
NO-HIRE AGREEMENT
DATE: November 23, 1999
PARTIES: SPEEDFAM-IPEC INC ("Seller")
an Illinois corporation
FUJIMI INCORPORATED, ("Buyer")
a Japanese corporation
RECITALS:
A. Pursuant to a Stock Purchase Agreement dated November 23, 1999 (the
"Purchase Agreement"), Seller has agreed to sell to Buyer and Buyer
has agreed to purchase from Seller one thousand (1,000) shares of
common stock of Fujimi Corporation, an Illinois corporation (the
"Company") which constitutes all of Seller's interest in the Company.
B. As a condition to closing the sale, Seller and Buyer are obligated to
enter into this No-Hire Agreement.
AGREEMENT:
In consideration of the mutual covenants set forth in the Purchase
Agreement and the covenants of the parties set forth here, it is agreed as
follows:
SECTION 1. NO-HIRE COVENANT
Seller hereby covenants and agrees that for a period of three (3) years
from the effective date of this Agreement, neither Seller nor its affiliates
will employ or seek to employ any employees of Buyer, Fujimi America, Inc. or
Fujimi Corporation, nor will Seller or its affiliates directly or indirectly
suggest or encourage that any employees of Buyer, Fujimi America, Inc. or Fujimi
Corporation, leave or otherwise change their employment relationship with Buyer,
Fujimi America, Inc. or Fujimi Corporation. Seller retains the right to hire a
former employee of Buyer, Fujimi America, Inc. or Fujimi Corporation, if such
employee's employment has been terminated at the time of such hiring for any
reason other than as a result of Seller's breach of this Agreement. For purposes
of this Agreement, "affiliates" shall mean any corporation or other business
entity in which Seller owns an equity interest equal to at least ten percent
(10%).
SECTION 2. CONSIDERATION FOR COVENANT
In consideration of Seller's covenants set forth in Section 1, Buyer
agrees to pay to Seller the sum of One Hundred Thousand Dollars ($100,000), the
receipt and sufficiency of which is hereby acknowledged.
<PAGE> 2
SECTION 3. ENFORCEMENT
It is recognized that damage in the event of breach of covenants of
Seller would be difficult if not impossible to ascertain. It is therefore agreed
that Buyer, in addition to and without limiting any other remedy or right that
it may have, shall have the right to an injunction against Seller and/or its
affiliates, as the case may be, issued by a court of competent jurisdiction
enjoining such breach.
SECTION 4. LITIGATION
If any suit or action (including any appeal) is brought to enforce this
Agreement, the prevailing party shall be entitled to receive from the other
party reasonable attorney fees and costs incurred in such litigation, including
any appeals.
SECTION 5. SEVERABILITY
If any provision of this Agreement is deemed to be illegal or otherwise
void, invalid, or unenforceable, the provision shall be disregarded and the
remainder of this Agreement without that provision shall not be affected and
shall remain in full force and effect.
SECTION 6. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with and
under the laws of the state of Illinois.
IN WITNESS WHEREOF, the Seller and Buyer have caused this Agreement to
be executed by their duly authorized representatives, all as of the date first
above written.
SELLER:
SPEEDFAM-IPEC INC.
By: /s/
-----------------------------------
James N. Farley, Co-Chairman
BUYER:
FUJIMI INCORPORATED
By: /s/
-----------------------------------
I. Koshiyama, Chairman
<PAGE> 1
Exhibit 2.4
NO-HIRE AGREEMENT
DATE: November 23, 1999
PARTIES: SPEEDFAM-IPEC Inc., ("Seller")
an Illinois corporation
FUJIMI INCORPORATED, ("Buyer")
a Japanese corporation
RECITALS:
A. Pursuant to an Stock Purchase Agreement dated November 23,
1999 (the "Purchase Agreement"), Buyer has agreed to buy from
Seller and Seller has agreed to sell to Buyer one thousand
(1,000) shares of common stock of Fujimi Corporation, an
Illinois corporation (the "Company") which constitutes all of
Seller's interest in the Company.
B. As a condition to closing the sale, Seller and Buyer are
obligated to enter into this No-Hire Agreement.
AGREEMENT:
In consideration of the mutual covenants set forth in the Purchase
Agreement and the covenants of the parties set forth here, it is agreed as
follows:
SECTION 1. NO-HIRE COVENANT
Buyer hereby covenants and agrees that for a period of three (3) years
from the effective date of this Agreement, neither Buyer nor its affiliates will
employ or seek to employ any employees of Seller or SpeedFam-IPEC Corporation,
nor will Buyer or its affiliates directly or indirectly suggest or encourage
that any employees of Seller or SpeedFam-IPEC Corporation leave or otherwise
change their employment relationship with Seller or SpeedFam-IPEC Corporation.
Buyer retains the right to hire a former employee of Seller or SpeedFam-IPEC
Corporation if such employee's employment has been terminated at the time of
such hiring for any reason other than as a result of Buyer's breach of this
Agreement. For purposes of this Agreement, "affiliates" shall mean any
corporation or other business entity in which Buyer owns an equity interest
equal to at least ten percent (10%).
SECTION 2. CONSIDERATION FOR COVENANT
In consideration of Buyer's covenants set forth in Section 1, Seller
agrees to pay to Buyer the sum of One Dollar ($1.00), the receipt and
sufficiency of which is hereby acknowledged.
<PAGE> 2
SECTION 3. ENFORCEMENT
It is recognized that damage in the event of breach of covenants of
Buyer would be difficult if not impossible to ascertain. It is therefore agreed
that Seller, in addition to and without limiting any other remedy or right that
it may have, shall have the right to an injunction against Buyer and/or its
affiliates, as the case may be, issued by a court of competent jurisdiction
enjoining such breach.
SECTION 4. LITIGATION
If any suit or action (including any appeal) is brought to enforce this
Agreement, the prevailing party shall be entitled to receive from the other
party reasonable attorney fees and costs incurred in such litigation, including
any appeals.
SECTION 5. SEVERABILITY
If any provision of this Agreement is deemed to be illegal or otherwise
void, invalid, or unenforceable, the provision shall be disregarded and the
remainder of this Agreement without that provision shall not be affected and
shall remain in full force and effect.
SECTION 6. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with and
under the laws of the state of Illinois.
IN WITNESS WHEREOF, the Seller and Buyer have caused this Agreement to
be executed by their duly authorized representatives, all as of the date first
above written.
SELLER:
SPEEDFAM-IPEC INC.
By: /s/
----------------------------
James N. Farley, Co-Chairman
BUYER:
FUJIMI INCORPORATED
By: /s/
----------------------------
I. Koshiyama, Chairman
<PAGE> 1
Exhibit 2.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of the 23rd day of November 1999, by
and among FUJIMI INCORPORATED, a Japanese corporation (the "Buyer"),
SPEEDFAM-IPEC INC., an Illinois corporation (the "Seller"), and HARRIS TRUST AND
SAVINGS BANK, as escrow agent (the "Escrow Agent").
1. Buyer has agreed to deposit with the Escrow Agent, in escrow, the
sum of Five Hundred Thousand dollars ($500,000.00).
2. The Escrow Agent agrees to accept said sum and to establish and
maintain a separate account therefore (the "Escrow Account").
3. The Escrow Agent agrees to invest and reinvest the funds in the
Escrow Account at the written direction and risk of Seller during the term of
this Escrow Agreement. Upon receipt of the written direction signed by an
authorized officer of Seller, the Escrow Agent shall invest and reinvest the
Escrow Account in one or more of the following investments (the "Obligations")
from time to time:
A. Direct Obligation of, or Obligation the principal and
interest on which are unconditionally guaranteed by, the United States
of America, or
B. Repurchase Agreements with the Escrow Agent involving
securities of the kind listed in (A) above, or
C. Money market funds authorized to invest in short-term
securities issued or guaranteed as to principal and interest by the
United States Government and Repurchase Agreements with respect to such
securities.
No Obligation shall have a maturity which exceeds the shorter of (i) one year
from the date of purchase; or (ii) such period of time as remains between the
date upon which the investment in the Obligations is made and May 22, 2000.
Interest and other earnings on the Obligations shall be added to the Escrow
Account. The parties acknowledge that the Escrow Agent shall not be responsible
for any diminution in the Escrow Account as a result of losses resulting from
investments. Investment and reinvestment of the Escrow Account shall be made
only in Obligations. The Escrow Agent may use its own Bond Department in
executing purchases and sales of permissible investments.
4. (a) As used in this Agreement, "Claim" shall mean:
(i) Any final, non-appealable order from a court of competent
jurisdiction containing an award against the Fujimi Corporation, an
Illinois corporation (the "Company"), equaling or exceeding (including
reasonable costs of the Company) the amount of Twenty-Five Thousand
Dollars ($25,000) and relating to acts, omissions or obligations of the
Company which occurred prior to November 23, 1999, and which was not
accrued, reserved against or disclosed in the audited balance sheet of
the Company as
<PAGE> 2
of December 31, 1998, and/or unaudited balance sheet as of June 30,
1999, or incurred in the ordinary course of business consistent with
past practices of the Company;
(ii) Any final decision by an arbitrator or panel of
arbitrators that is binding upon all parties to such arbitration,
containing an award against the Company equaling or exceeding
(including reasonable costs of the Company) the amount of Twenty-Five
Thousand Dollars ($25,000) and relating to acts, omissions or
obligations of the Company which occurred prior to November 23, 1999,
and which was not accrued, reserved against or disclosed in the audited
balance sheet of the Company as of December 31, 1998, and/or unaudited
balance sheet as of June 30, 1999, or incurred in the ordinary course
of business consistent with past practices of the Company.
(iii) Any final decision by a governmental regulatory body that
is binding upon the parties to the regulatory proceeding, containing an
award, levy, fine, assessment, tax or other act of monetary enforcement
against the Company equaling or exceeding (including reasonable costs
of the Company) Twenty-Thousand Dollars ($25,000) and relating to acts,
omissions or obligations of the Company which occurred prior to
November 23, 1999, and which was not accrued, reserved against or
disclosed in the audited balance sheet of the Company as of December
31, 1998, and/or unaudited balance sheet as of June 30, 1999, or
incurred in the ordinary course of business consistent with past
practices of the Company; and
(iv) Any settlement of a claim against the Company, prior to a
final court order, administrative award or regulatory award, in an
amount equaling or exceeding (including reasonable costs of the
Company, Twenty-Five Thousand Dollars ($25,000) and relating to acts,
omissions or obligations of the Company which occurred prior to
November 23, 1999, and which was not accrued, reserved against or
disclosed in the audited balance sheet of the Company as of December
31, 1998, and/or unaudited balance sheet as of June 30, 1999, or
incurred in the ordinary course of business consistent with past
practices of the Company.
The parties acknowledge and agree that accounts receivable of the
Company from Strasbaugh which remain uncollected after the date hereof
shall not constitute a "Claim."
(b) If the Company becomes liable for any Claim that becomes known to
Buyer on or before May 22, 2000, or if any claim is made on or before May 22,
2000, that could reasonably result in a Claim for which the Company could be
liable, Buyer shall immediately notify in writing the Seller and the Escrow
Agent of the Claim. If Buyer notifies the Escrow Agent in writing of a Claim (a
"Claim Notice"), the Escrow Agent shall reserve and set aside sufficient
escrowed funds to be able to be pay one-half (1/2) of the amount of any such
prospective Claim (including as the Company's reasonable costs an amount equal
to thirty-five percent (35%) of the Claim), as determined by the Buyer in good
faith (the "Claimed Funds"). Upon receipt of a Claim Notice the Escrow Agent
shall promptly notify Seller in writing of any proposed transfer of Claimed
Funds in satisfaction of such Claim. If the Escrow Agent does not receive
written objection from Seller within thirty (30) days from the date the Escrow
Agent sent the notice to the Seller, the Escrow Agent may distribute the Claimed
Funds to Buyer or the party to whom
-2-
<PAGE> 3
the Claim is owing as directed by the Claim Notice. If the Escrow Agent does
receive a written objection from Seller within such thirty-day period, the
Escrow Agent shall hold the Claimed Funds pending receipt of (i) written
instructions signed by both Buyer and Seller or (ii) a copy of a final,
non-appealable order from a court of competent jurisdiction with respect to the
Claimed Funds. Any court order referred to in (ii) above shall be accompanied by
a legal opinion of counsel for the presenting party satisfactory to the Escrow
Agent to the effect that said court order or judgement is final and enforceable
and not subject to further appeal.
(c) On May 23, 2000, if no Claim Notices have been delivered or
contested by Seller as provided in 4(b) hereof, then all remaining escrowed
funds held by the Escrow Agent as of the close of business May 22, 2000, shall
be distributed to Seller and this Escrow Agreement shall terminate. If at the
close of business on May 22, 2000, any Claim Notice remains pending for which
Claimed Funds continue to be held, then (i) the Escrow Account shall remain open
until (A) the Escrow Agent is provided with written instruction signed by both
Buyer and Seller or (B) a copy of a final non-appealable order from a court of
competent jurisdiction with respect to the Claimed Funds; and (ii) on May 23,
2000, all escrowed funds exceeding monies held for such continuing Claim Notices
shall be paid to Seller. When all such Claim Notices have been resolved pursuant
to this Agreement, any escrowed funds remaining in the Escrow Account shall be
distributed by the Escrow Agent to Seller and this Escrow Agreement shall
terminate. If at any time prior to the full satisfaction of all Claims, there
shall be no escrowed funds remaining in the Escrow Account, this Escrow
Agreement shall terminate. Any court order referred to in 4(c)(i)(B) above shall
be accompanied by a legal opinion of counsel for the presenting party
satisfactory to the Escrow Agent to the effect that said court order or
judgement is final and enforceable and not subject to further appeal.
5. (a) The Escrow Agent shall be indemnified, jointly and severally,
and saved harmless by the undersigned, from and against any and all liability,
including all expenses reasonably incurred in its defense, to which the Escrow
Agent shall be subject by reason of any action taken or omitted or any
investment or disbursement of any part of the Escrow Account made by the Escrow
Agent pursuant to this Escrow Agreement, except as a result of the Escrow
Agent's own gross negligence or willful misconduct. The costs and expenses of
enforcing this right of indemnification shall also be paid by Buyer and Seller.
This right of indemnification shall survive the termination of this Escrow
Agreement and the removal or resignation of the Escrow Agent.
(b) The Escrow Agent undertakes to perform such duties as are
specifically set forth in this Escrow Agreement, and the Escrow Agent shall not
be liable except for the performance of such duties as are specifically set
forth in this Escrow Agreement, and no implied covenants or obligations shall be
read into this Escrow Agreement against the Escrow Agent. The Escrow Agent may
consult with counsel (of its choice) regarding any of its duties or obligations
hereunder, and shall be fully protected in any action taken in good faith in
accordance with such advice. The Escrow Agent shall be fully protected in acting
in accordance with any written instructions given to it hereunder and believed
by it to have been executed by the proper party or parties. The Escrow Agent's
duties shall be determined only with reference to this Escrow Agreement and
applicable laws and is not charged with any duties or responsibilities in
connection with any other documents or agreements. Attached hereto as Exhibit B
are the
-3-
<PAGE> 4
names, titles, and specimen signatures of each of the persons who are
authorized, on behalf of Buyer and Seller to execute and deliver written notices
and direction to the Escrow Agent.
(c) Buyer and Seller agree to pay the Escrow Agent a fee according to
the fee letter attached hereto as Exhibit A. Fees are payable in advance as
compensation for the ordinary administrative services to be rendered hereunder
and Buyer and Seller, jointly and severally, agree to pay all the expenses of
the Escrow Agent, including the indemnity provided in Section 5(a) hereof. To
the extent such fees and expenses are not paid by Buyer and Seller, the
foregoing shall be paid from the Escrow Account after written notice from the
Escrow Agent to Buyer and Seller. As between Buyer and Seller, each agrees to be
responsible for one-half (1/2) of any fees due to the Escrow Agent.
(d) It is understood and agreed that in the event any disagreement
among the parties hereto results in adverse claims or demands being made in
connection with the Escrow Account, or in the event the Escrow Agent in good
faith is in doubt as to what action it should take hereunder, the Escrow Agent
shall retain the Escrow Account until the Escrow Agent shall have received (i)
an enforceable final order of a court of competent jurisdiction which is not
subject to further appeal directing delivery of the Escrow Account or (ii) a
written agreement executed by the other parties hereto directing delivery of the
Escrow Account, in which event Escrow Agent shall disburse the Escrow Account in
accordance with such order or agreement. Any court order referred to in (i)
above shall be accompanied by a legal opinion of counsel for the presenting
party satisfactory to the Escrow Agent to the effect that said court order or
judgment is final and enforceable and is not subject to further appeal. The
Escrow Agent shall act on such court order and legal opinion without further
question.
(e) The Escrow Agent may resign at any time by giving written notice
thereof to the other parties hereto, but such resignation shall not become
effective until a successor Escrow Agent shall have been appointed and shall
have accepted such appointment in writing. If an instrument of acceptance by a
successor Escrow Agent shall not have been delivered to the Escrow Agent within
thirty (30) days after the giving of such notice of resignation, the resigning
Escrow Agent may, at the expense of Buyer and Seller, petition any court of
competent jurisdiction for the appointment of a successor Escrow Agent. Subject
to Section 5(d) hereof, if any property subject hereto is at any time attached,
garnished or levied upon, under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by any court affecting such property, or any part
thereof, then in any of such events, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ judgment or
decree, which it is advised by legal counsel (of its own choosing) is binding
upon it, and if it complies with any such order, writ, judgment or decree, it
shall not be liable to any of the parties hereto or to any other person, firm,
or corporation by reason of such compliance, even though such order, writ,
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
(f) In no event shall the Escrow Agent be liable to any party hereto
for any special, indirect or consequential loss or damage of any kind
whatsoever, even if the Escrow Agent has been previously advised of such loss or
damage.
-4-
<PAGE> 5
6. Any notice to any party hereto given pursuant to this Escrow
Agreement shall be given by fax, certified first-class mail or nationally
recognized express overnight courier delivery service addressed as follows.
Notices shall not be deemed to be given until actually received.
A. If to Escrow Agent:
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
Attn: Escrow Division/Linda Garcia
Phone: (312) 461-2623
Fax:(312) 461-3525
Buyer: Mr. I. Koshiyama
Chairman
Fujimi Incorporated
1-1, Chiryo-2, Nishibiwajima-cho
Aichi Pref. 452, Japan
Phone: (052) 503-8111
Fax: (052) 503-7712
Seller: Mr. James N. Farley
Co-Chairman
SpeedFam-IPEC Inc.
305 N. 54th Street
Chandler, AZ 85226-2416
Phone: (480) 705-2100
Fax: (480) 705-2122
7. If any provision of this Escrow Agreement or the application
thereof to any person or circumstances shall be determined to be invalid or
unenforceable, the remaining provisions of this Escrow Agreement or the
application of such provision to persons or circumstances other than those to
which it is held invalid or unenforceable shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
8. This Escrow Agreement shall be construed in accordance with and
governed by the laws of the State of Illinois.
9. This Escrow Agreement may be executed in several counterparts or by
separate instruments and all of such counterparts and instruments shall
constitute one agreement, binding on all the parties hereto.
-5-
<PAGE> 6
IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement
as of the day and year first above written.
HARRIS TRUST AND SAVINGS BANK, FUJIMI INCORPORATED
as Escrow Agent
By /s/ By /s/
---------------------------- -----------------------------------
Its Its Chairman
----------------------------
SPEEDFAM-IPEC INC.
By /s/
-----------------------------------
Its Co-Chairman
-6-
<PAGE> 7
EXHIBIT A
FEE LETTER
<PAGE> 8
EXHIBIT B
AUTHORIZED PERSONS
FOR THE BUYER:
Name Title Specimen Signature
I. Koshiyama Chairman ________________________
FOR THE SELLER
Name Title Specimen Signature
James N. Farley Co-Chairman ________________________
<PAGE> 1
Exhibit 99.1
For more information, contact:
J. Michael Dodson
Chief Financial Officer
Addo Barrows
Director, Treasury Operations
(480) 705-2113
FOR IMMEDIATE RELEASE
SPEEDFAM-IPEC COMPLETES SALE OF 50% INTEREST IN FUJIMI CORPORATION
CHANDLER, Ariz. -- November 23, 1999 -- SpeedFam-IPEC, Inc. (Nasdaq:SFAM), a
leading supplier of high-throughput chemical mechanical planarization (CMP)
systems for the semiconductor industry and flat surface processing systems for
the thin film memory disk media and silicon wafer industries worldwide, today
announced the completion of the sale of its 50% interest in a joint venture,
Fujimi Corporation, to its 50% partner, Fujimi Incorporated. The cash
transaction was valued at $9.8 million.
Fujimi Corporation sells abrasives and slurries (polishing liquids)
manufactured by Fujimi Incorporated, a leading global supplier and distributor
of abrasives and slurries, primarily to silicon wafer, thin film memory disk
media and general industrial manufacturers in North and South America.
According to the respective companies, this sale will enable Fujimi
Incorporated to consolidate its global abrasive and slurry distribution system
and SpeedFam-IPEC to increase its focus on the worldwide CMP market.
"We are pleased that after 15 years of mutual cooperation, the joint
owners of Fujimi Corporation have been able to reach a fair agreement on its
future ownership," said Richard J. Faubert, president and chief executive
officer of SpeedFam-IPEC. "This transaction makes business sense for both
parties -- Fujimi Incorporated will have 100% control of its major marketing
outlet in the United States, and SpeedFam-IPEC will continue to sharpen its
focus on the global market for CMP equipment. SpeedFam-IPEC will also continue
to sell Fujimi products to the thin film memory disk media market."
SPEEDFAM-IPEC, INC.
SpeedFam-IPEC, Inc. designs, develops, manufactures, markets, and
supports chemical mechanical planarization (CMP) systems used in the fabrication
of semiconductor devices and other high-throughput precision surface processing
systems. SpeedFam-IPEC's flat surface processing systems are used in the thin
film memory disk media, silicon wafer and general industrial applications
markets.
--more--
<PAGE> 2
2
SpeedFam-IPEC Completes Sale of 50% Interest in Fujimi Corporation
The company also markets and distributes slurries (polishing liquids),
parts and consumables used in its customers' manufacturing processes.
SpeedFam-IPEC, Inc. owns a 50-percent interest in a joint venture, SpeedFam-IPEC
Co., Ltd. (the Far East Joint Venture).
This news release contains forward-looking statements. Actual results may vary.
The CMP market may not grow. Competitive conditions in the industry and
technological changes may affect the market for CMP equipment, and the timing of
CMP growth in Asia is uncertain. The company may not be successful in developing
copper CMP and 300mm process technologies, delivering to market products based
on these technologies, generating revenue from these products, and increasing
its market share in CMP. The increase in buying capacity from semiconductor
manufacturers may not materialize as anticipated, and the company may not be
successful in leveraging the anticipated increase. The thin film memory disk
media and silicon wafer markets may not recover from their respective downturns.
See SpeedFam-IPEC's, SpeedFam's and IPEC's filings with the SEC, including the
Form S-4 filed on March 8, 1999 and the Annual Report on Form 10-K filed on
August 30, 1999, for additional risks affecting the company.
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