Exhibit 99.1
SpeedFam International, Inc.
Indemnity Agreement
This Indemnity Agreement is entered into on this 29th day of January, 1997,
between SpeedFam International, Inc. (the "Company") and the shareholder of the
Company named on the signature page hereof (the "Selling Shareholder").
Whereas, The Company has filed with the Securities and Exchange Commission
a Registration Statement on Form S-3, File No. 333-20679 (the "Registration
Statement"), covering shares of Common Stock to be sold by the Company and
certain selling shareholders of the Company (collectively, the "Selling
Shareholders");
Whereas, The Company and the Selling Shareholders propose to enter into an
Underwriting Agreement with Xxxxxx Brothers Inc., Alex. Xxxxx & Sons
Incorporated and Xxxxxxx & Company, Inc. (as "Representatives" of the
Underwriters) pursuant to which the shares of Common Stock registered pursuant
to the Registration Statement will be sold by the Company and the Selling
Shareholders;
Whereas, The Company believes that it is in the best interest of the
Company that any shares of Common Stock proposed to be sold by the Selling
Shareholders be included in the Registration Statement, and for other good and
valuable consideration;
The Company and the Selling Shareholder hereby agree to the following:
The Company shall indemnify and hold harmless the Selling Shareholder and
any person controlling such Selling Shareholder from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Common Stock), to which the Selling
Shareholder may become subject, under the Securities Act of 1933, as amended,
(the "Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any preliminary
prospectus, the Registration Statement or the prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, and shall reimburse the Selling
Shareholder promptly upon demand for any legal or other expenses reasonably
incurred by the Selling Shareholder in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred;
The Selling Shareholder shall indemnify and hold harmless the Company, its
officers and employees, and each person, if any, who controls the Company within
the meaning of the Securities Act and the Exchange Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Common Stock), to which the Company,
officer, employee or controlling person may become subject, under the Securities
Act or the Exchange Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the prospectus or in any amendment or
supplement thereto, but only with reference to information relating to the
Selling Shareholder furnished in writing by or on behalf of the Selling
Shareholder expressly for use in the Registration Statement or prospectus, or
(ii) the omission or alleged omission to state in any preliminary prospectus,
Registration Statement or the prospectus, or in any amendment or supplement
thereto, any material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to information
relating to the Selling Shareholder furnished in writing by or on behalf of the
Selling Shareholder expressly for use in the Registration Statement or
prospectus, and shall reimburse the Company, its officers and employees and each
such controlling person for any legal or other expenses reasonably incurred by
the Company, its officers and employees or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Shareholder shall not be liable for losses or claims exceeding
the proceeds received by the Selling Shareholder from the sale of Common Stock
upon the consummation of the sale contemplated in the Underwriting Agreement.
Promptly after receipt by an indemnified party of notice of any claim or
the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party, notify the
indemnifying party in writing of the claim of the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may otherwise have to an indemnified party. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying
party, the indemnifying party shall be entitled to participate therein and to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent
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includes an unconditional release of the indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but it settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Agreement shall for any reason
be unavailable to or insufficient to hold harmless an indemnified party in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to herein, then the indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof in such proportion as is appropriate to reflect the
relative fault of the Company and the Selling Shareholder, respectively, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Shareholder, the interest of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Selling Shareholder agree that
it would not be just and equitable if contributions pursuant to this Agreement
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Agreement shall be deemed to include any legal of
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions herein, the Selling Shareholder shall not be required to contribute
any amount in excess of the amount by which the proceeds received by the Selling
Shareholder from the sale of the shares of Common Stock exceeds the amount of
any damages which such Selling Shareholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act or the Exchange Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The respective indemnities of the Company and the Selling Shareholder
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Common Stock and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
This Agreement shall be governed by and construed in accordance with the
laws of Illinois.
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This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to
be an original but all such counterparts shall together constitute one and the
same instrument.
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