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EXHIBIT 1.2
1,900,000 SHARES*
APPLIED FILMS CORPORATION
COMMON STOCK
AMENDMENT NO. 1 TO UNDERWRITING AGREEMENT
November 25, 1997
XXXXXXX & COMPANY, INC.
X.X. XXXXXXXX & CO.
As Representatives of the several Underwriters
c/o Needham & Company, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
On November 20, 1997, Applied Films Corporation, a Colorado corporation
(the "Company"), the stockholders of the Company named in Schedule II (the
"Selling Stockholders") to the Underwriting Agreement, dated November 20, 1997
(the "Underwriting Agreement") and you, acting as representatives of the
Underwriters (the "Representatives") entered into the Underwriting Agreement
whereby the Company proposed to issue and sell 500,000 shares of the Company's
Common Stock, no par value per share (the "Common Stock"), and one of the
Selling Stockholders, Xxxxxxxx Corporation ("Xxxxxxxx") proposed to sell
1,400,000 shares (the "Selling Stockholder Firm Shares") of Common Stock, in
each case to you and to the several other Underwriters named in Schedule I to
the Underwriting Agreement (collectively, the "Underwriters").
On the date hereof, Xxxxxxxx desires to transfer its 1,400,000 shares to
Xxxxxxxx Technology, Inc. (the "Transferee"), a corporation duly organized
under the laws of the State of Michigan. The Company, Xxxxxxxx, the remaining
Selling Stockholders and the Representatives desire to amend the Underwriting
Agreement to include the Transferee as a party to the Underwriting Agreement
effective as of the date hereof (the "Amendment").
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* Plus an option to purchase up to an additional 285,000 shares to cover
over-allotments.
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In consideration of the mutual promises and covenants hereinafter set
forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Xxxxxxxx agrees that it shall remain subject to all of its obligations
under the Underwriting Agreement notwithstanding the transfer of the shares
contemplated hereby, including without limitation, its obligations under
Section 7 relating to indemnification and contribution. For purposes of the
cap on indemnification set forth in Section 7(b) of the Underwriting Agreement,
the purchase price received by the Transferee shall be deemed also to have been
received by Xxxxxxxx. The representations and warranties made by Xxxxxxxx in
the Underwriting Agreement shall be deemed to be amended to the extent
necessary to reflect that the record ownership of the shares have been
transferred from Xxxxxxxx to the Transferee. Xxxxxxxx represents that it is
the sole record and beneficial owner of the Transferee.
2. The Transferee agrees to become a party to the Underwriting Agreement
as if an original party thereto effective as of the date set forth above.
Transferee acknowledges and agrees that, as a recipient of the rights under the
Underwriting Agreement, it is subject to certain prospective obligations under
the Underwriting Agreement, including without limitation, obligations relating
to indemnification and contribution, and will execute any document requested of
it by the Company and the Underwriters to reflect these obligations.
3. The Transferee hereby makes the same representations and warranties of
Xxxxxxxx that were originally contained in the Underwriting Agreement. The
Company, the Selling Stockholders and the Representatives hereby acknowledge
the Transferee as a party to the Underwriting Agreement, effective and
contingent upon the execution of this Amendment by the Company, the Selling
Stockholders and the Representatives.
4. Notwithstanding the transfer of the shares by Xxxxxxxx to the
Transferee, each of Xxxxxxxx and the Transferee shall be considered a Selling
Stockholder under the Underwriting Agreement.
This Amendment has been and is made solely for the benefit of the several
Underwriters, the Company, the Selling Stockholders, the Transferee and the
controlling persons, directors and officers referred to in Section 7 of the
Underwriting Agreement, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Amendment
Any action required or permitted to be made by the Representatives under
this Amendment may be taken by them jointly or by Xxxxxxx & Company, Inc.
This Amendment shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
entirely within such State.
This Amendment may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
2.
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In case any provision in this Amendment shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company and the Underwriters each hereby waive any right they may have
to a trial by jury in respect of any claim based upon or arising out of this
Amendment or the transactions contemplated hereby.
Except as specifically amended herein, the Underwriting Agreement shall
continue to remain in full force and effect.
3.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders, the Transferee and the several
Underwriters.
Very truly yours,
XXXXXXXX CORPORATION
By: ____________________________
Name: ___________________________
Title: __________________________
XXXXXXXX TECHNOLOGY, INC.
By:______________________________
Name: ___________________________
Title: __________________________
APPLIED FILMS CORPORATION
By: ____________________________
Name: ___________________________
Title: _________________________
SELLING STOCKHOLDERS
(named in Schedule I hereto)
By: ____________________________
Attorney-in-Fact
Confirmed as of the date first
above mentioned:
XXXXXXX & COMPANY, INC.
X.X. XXXXXXXX & CO.
Acting on behalf of themselves and as the Representatives of the
other several Underwriters named in Schedule I to the Underwriting
Agreement.
By: XXXXXXX & COMPANY, INC.
By: _________________________
Title:
4.
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SCHEDULE I
Xxxxxx Xxxxxx Trust
Xxxx Xxxxx
