EXHIBIT 2.4
SECOND AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT
THIS SECOND AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT (the
"Second Amendment"), dated as of November 5th, 2001, is entered into by and
among STEAG Electronic Systems, AG, an Aktiengesellschaft organized and existing
under the laws of the Federal Republic of Germany ("STEAG"), and Xxxxxxx
Technology, Inc., a Delaware corporation ("Xxxxxxx").
RECITALS
X. Xxxxxxx and STEAG have entered into that certain Strategic Business
Combination Agreement, dated as of June 27, 2000, as amended December 15, 2000
(the "Agreement").
X. Xxxxxxx has caused Silicon Valley Bank to amend the terms of that
certain Standby Letter Of Credit No. SVB00IS3367, dated December 29, 2000, as
amended September 20, 2001 (the "Letter of Credit").
C. STEAG and Xxxxxxx desire to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the agreements, and subject to the
satisfaction or waiver of the conditions herein contained, the parties hereby
agree as follows:
1. Definitions. Unless otherwise defined herein or the context otherwise
requires, capitalized terms used in the Second Amendment shall have the
respective meanings ascribed to such terms in the Agreement. Upon the
effectiveness of the Second Amendment, the terms defined in the Second Amendment
shall be incorporated into the Agreement as if such terms were originally
defined therein.
2. Second Amendment Closing. The closing of the transactions contemplated
hereby shall take place, and the amendments to the Agreement contained herein
shall become effective, upon a closing (the "Second Amendment Closing") which
shall take place upon November 5th, 2001 (or on such other date as the parties
agree, the "Second Amendment Closing Date"), at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxx Xxxx, XX
00000, or at such other location as the parties agree.
3. Post Closing Adjustments. Section 2.9 of the Agreement shall be amended
with the addition of the following paragraphs immediately after Section 2.9(d)
of the Agreement:
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"(e) Agreement on Amounts Due. Notwithstanding the foregoing
provisions of this Section 2.9(d): (i) the amount of fiscal year 2000
profit due to STEAG from STEAG RTP Systems GmbH (the predecessor in
interest to Xxxxxxx Thermal Products GmbH, or "MTP"), is agreed and
stipulated by the parties to be DM 19,747,143.03 (the "MTP Profit"); (ii)
the amount of fiscal year 2000 profit due to STEAG from STEAG MicroTech
GmbH (the predecessor in interest to Xxxxxxx Wet Products GmbH or "MWP") is
agreed and stipulated by the parties to be DM 3,478,184.72 (the "MWP
Profit"); (iii) the difference between such aggregate profit payments and
the Year 2000 Profit Estimate due to STEAG from Xxxxxxx pursuant to Section
2.9(d) (the "Profit Differential Payment") is agreed and stipulated to by
DM 13,757,682.70; and (iv) the date on which each of the MTP Profit, MWP
Profit and the Profit Differential Payment shall bear interest from April
1, 2001 at the rate of six percent (6%) per annum until the earliest of (A)
the payment to STEAG by MTP, MWP, or Xxxxxxx of such amounts or (B) the
execution and delivery of the Profits Note (as defined below).
(f) Method of Payment. Not later than the Second Amendment Closing,
MTP, MWP and Xxxxxxx shall pay amounts equal to the MTP Profit, the MWP
Profit and the Profit Differential Payment, respectively, in cash by wire
transfer to STEAG; provided, that Xxxxxxx may, at its option by written
notice to STEAG, cause STEAG to offset the Profit Differential Payment
against the proceeds of the STEAG Loan. With respect to interest payments
due with respect to the MTP Profit, the MWP Profit, and the Profit
Differential Payment, Xxxxxxx may, at its option by written notice to
STEAG, cause STEAG to offset such interest accrued for the period from
July 2, 2001 to the Second Amendment Closing Date against the proceeds of
the STEAG Loan).(1)
(g) Waiver. The agreements and stipulations contained in Section
2.9(e) as to the amounts due under Section 2.9 of the Agreement shall be
final and irrevocable, and in consideration of the payment of the MTP
Profit, the MWP Profit, and the Profit Differential Payment, and subject
to the making of the STEAG Loan, each party hereby waives any right to
dispute or contest the amounts set forth herein, either pursuant to the
terms of the Agreement or otherwise."
4. STEAG Loan. A new Section 2.10 of the Agreement shall be added which
shall read in its entirety as follows:
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(1) Interest accrued for the period from April 1, 2001, to July 1, 2001, will
be capitalized and added to the principal balance of the Profits Note,
while interest accrued for the period from July 2, 2001 will be paid in
cash at the Second Amendment Closing, either in the form of a cash payment
by MTP or MWP to STEAG, or by an offset against the proceeds of the STEAG
loan.
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"2.10 STEAG Loan. Upon the satisfaction of the conditions to the
obligations of STEAG to consummate the Second Amendment Closing, including
but not limited to the receipt by STEAG of the MTP Profit and the MWP
Profit and the execution and delivery to STEAG by Xxxxxxx of a promissory
note (the "Profits Note") in the form attached as Exhibit A to the Second
Amendment, dated as of the Second Amendment Closing Date, and in a
principal amount equal to [Thirty Seven Million Five Hundred Thirty-Seven
Thousand Seven Hundred Fifty-Five 61/100 Deutsche Marks (DM 37,537,755.61)]
(the "Profits Note Principal Amount"),(2) STEAG shall make a loan (the
"STEAG Loan") to Xxxxxxx of the Profits Note Principal Amount. Upon the
Second Amendment Closing, STEAG shall pay to Xxxxxxx the Profits Note
Principal Amount, in cash by wire transfer to Xxxxxxx, net of any offset
with respect to the Profit Differential Payment or interest accrued for the
period from July 2, 2001 to the Second Amendment Closing Date."
5. Additional Covenants of Xxxxxxx. A new Section 6.24 shall be added to
the Agreement to read in its entirety as follows:
"6.24 Additional Covenants of Xxxxxxx. From the date of the Second
Amendment until the Xxxxxxx Secured Note (as may be amended from time to
time) and the Profits Note have been repaid in full, except as expressly
contemplated or permitted by this Agreement or to the extent STEAG shall
otherwise consent in writing, neither Xxxxxxx nor any of its subsidiaries
shall:
(a) acquire or agree to acquire by merging or consolidating with,
or by purchasing all or a substantial equity interest in or all or a
substantial portion of the assets of, any business or any corporation,
partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets other than
assets acquired in the ordinary course of business which are
immaterial in nature or amount (any of such transaction, an
"Acquisition Transaction"); provided, however, that Xxxxxxx or its
subsidiaries may agree to, or consummate, an Acquisition Transaction,
provided that (i) the consideration to be paid by Xxxxxxx in such
Acquisition Transaction shall consist solely of newly issued shares of
Xxxxxxx Common Stock, (ii) in the event of a merger or consolidation,
Xxxxxxx is the surviving corporation upon consummation of such
Acquisition Transaction, and (iii) the holders of Xxxxxxx Common Stock
immediately prior to such Acquisition Transaction shall, immediately
following such Acquisition Transaction, own more than 50% of the
Xxxxxxx Common Stock outstanding after such Acquisition Transaction,
and (iv) neither the consummation of such Acquisition Transaction, nor
any of the agreements relating to such Acquisition Transaction, would
impair or limit the ability of Xxxxxxx to repay any amounts due under
the Profits Note or the Prolongation Note; and provided, further; that
Xxxxxxx or its subsidiaries may enter into intercompany consolidation
or merger transactions if such transactions would not otherwise impair
or limit the ability of Xxxxxxx to repay any amounts due under the
Profits Note or the Prolongation Note;
___________________
(2) The Profits Note Principal Amount assumes the treatment of interest set
forth in Footnote 1, above.
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(b) (i) declare, set aside or pay any dividends on or make other
distributions in respect of any of its capital stock, (ii) split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for, shares of its capital stock or (iii) directly or
indirectly repurchase, redeem or otherwise acquire, any shares of its
capital stock;
(c) incur any indebtedness for money borrowed or issue any debt
securities; assume, guarantee, or otherwise become liable or
responsible for the obligations of any other person; or make any loans
or capital contributions to, or investments in, any other person,
except for Authorized New Debt. For the purposes of this Agreement,
"Authorized New Debt" means (i) a credit line with Tokyo Mitsubishi
Bank, not to exceed (Y)900 million in principal amount; (ii) a credit
line with Silicon Valley Bank, not to exceed US $20 million in
principal amount; (iii) an offering of subordinated debt securities to
the public or to Qualified Institutional Buyers (as defined in rules
promulgated under the Securities Act) not to exceed US $100 million in
principal amount; or (iv) a syndicated bank loan, not to exceed US $50
million in principal amount; or
(d) agree in writing to do any of the foregoing."
6. Fees and Expenses. A new Section 6.25 shall be added to the Agreement to
read in its entirety as follows:
"6.25 Fees and Expenses. At the Second Amendment Closing, Xxxxxxx
shall pay to STEAG an amount in cash equal to STEAG's out of pocket
expenses (including legal fees and disbursements), not to exceed $30,000,
incurred through the Second Amendment Closing Date in connection with the
preparation, negotiation, and execution of the Second Amendment and the
transactions contemplated hereby (the "STEAG Expenses")."
7. Prolongation Note. A new subsection (m) shall be added to Section 7.3 of
the Agreement to read in its entirety as follows:
"(m) Prolongation Note. At the Second Amendment Closing, Xxxxxxx shall
make and deliver to STEAG an amendment and restatement of the Xxxxxxx
Secured Note in the form attached as Exhibit B to the Second Amendment (the
"Prolongation Note")."
8. Tax Indemnification. The following sentence is hereby added after the
first sentence of Section 9.1(b) of the Agreement:
"Notwithstanding the foregoing, any Damages arising from a breach of
Section 3.13 that relate to the STEAG Subsidiaries, and the subsequent
obligation of STEAG to indemnify Xxxxxxx for Damages resulting therefrom,
shall be subject to offset by any refunds for overpayment of taxes, or
other similar gains or payments, made to or recognized by any STEAG
Subsidiary that relates to tax periods prior to the Closing. For the
avoidance of doubt, by way of example and without limitation, in the event
that STEAG RTP Systems, Inc. (or its successor in interest) shall be liable
to the State of California for any Taxes for any tax period ending on or
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before the Closing Date (the amount of such liability, the "California Tax
Liability"), and in the event that STEAG RTP Systems GmbH (or its successor
in interest) shall be eligible to receive a credit for the overpayment of
Taxes in the Federal Republic of Germany for any tax period ending on or
before the Closing Date (the amount of such credit, the "German Tax
Credit"), then STEAG shall not be obligated to indemnify Xxxxxxx under this
Section 3.13 unless the California Tax Liability shall exceed the German
Tax Credit, and then STEAG's liability for indemnification shall be limited
to the amount by which the California Tax Liability shall exceed the German
Tax Credit."
9. Conditions to Second Amendment Closing. The obligations of STEAG to
consummate the Second Amendment Closing shall be subject to the satisfaction, or
the waiver by STEAG, of the following conditions:
(a) Profits Note. Xxxxxxx shall have made and delivered to STEAG
the Profits Note, and shall not, as of the Second Amendment Closing
Date, have suffered an Event of Default (as defined in the Profits
Note) under the Profits Note, nor shall there exist any facts or
circumstances which would constitute (with or without notice or lapse
of time or both) and Event of Default thereunder.
(b) Profit Payments. MTP and MWP shall have delivered the payment
of the MTP Profit and the MWP Profit, respectively, and shall have
paid the Accrued Interest thereon, in cash, by execution of the
Profits Note, or a permitted combination thereof.
(c) Globalzession. Xxxxxxx shall have executed and delivered the
"Globalzession" in the form attached as Exhibit C hereto, and such
Globalzession shall remain in full force and effect.
(d) Prolongation Note. Xxxxxxx shall have made and delivered to
STEAG the Prolongation Note, and shall not, as of the Second Amendment
Closing Date, have suffered an Event of Default (as defined in the
Prolongation Note) under the Prolongation Note, nor shall there exist
any facts or circumstances which would constitute (with or without
notice or lapse of time or both) an Event of Default thereunder.
(e) Letter of Credit. The Letter of Credit, as amended, shall
remain in full force and effect.
(f) Amendment to Stockholder Agreement. Xxxxxxx and Xxxx Xxxxxxx
shall have executed and delivered to STEAG an amendment to the
Stockholder Agreement in the form attached as Exhibit D hereto, and
such amendment shall remain in full force and effect.
(g) Fees and Expenses. Xxxxxxx shall have paid to STEAG in
immediately available funds an amount equal to the amount of the STEAG
Expenses.
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IN WITNESS WHEREOF, STEAG and Xxxxxxx have caused this Second Amendment to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
XXXXXXX TECHNOLOGY, INC.
By: /s/ Ludger Viefhues
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STEAG ELECTRONIC SYSTEMS, AG
By:
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IN WITNESS WHEREOF, STEAG and Xxxxxxx have caused this Second Amendment to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
XXXXXXX TECHNOLOGY, INC.
By:
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STEAG ELECTRONIC SYSTEMS, AG
By: /s/ Xxxxxxx Xxxxxxxx /s/
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