EXHIBIT 2.2
IRREVOCABLE ACKNOWLEDGMENT AND WAIVER
THIS IRREVOCABLE ACKNOWLEDGMENT AND WAIVER (this "Waiver"), dated as of
December 15, 2000, is entered into by and among Xxxxxxx Technology, Inc., a
Delaware corporation ("Xxxxxxx"), and STEAG Electronic Systems AG, an
Aktiengesellschaft organized and existing under the laws of the Federal Republic
of Germany ("STEAG").
RECITALS
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X. Xxxxxxx and STEAG entered into a Strategic Business Combination
Agreement dated as of June 27, 2000, as amended by the Amendment to Strategic
Business Combination Agreement dated as of December 15, 2000 (the "SBCA"), which
provides that the transactions contemplated thereby (the "Strategic Business
Combination") shall close no earlier than 24:00/0:00 hours on December 31,
2000/January 1, 2001.
B. Pursuant to Section 2.8(c) of the SBCA, if certain enumerated
conditions are satisfied prior to the Closing, then Xxxxxxx and STEAG shall each
execute and deliver to the other an irrevocable acknowledgment and waiver, in
form and substance reasonably satisfactory to the parties, acknowledging or
waiving satisfaction of certain conditions to such party's obligations to
consummate the Strategic Business Combination, and waiving certain termination
rights of such party otherwise provided in Section 8.1 of the SBCA. This Waiver
is delivered in satisfaction of Section 2.8(c) of the SBCA.
C. Concurrently with delivery of this Waiver, the parties are delivering
or causing delivery of various closing certificates and other documents intended
to satisfy certain of the conditions set forth in Sections 7.2 and 7.3 of the
SBCA.
D. The CFM Early Satisfaction Date Actions are being taken simultaneously
with delivery of this Waiver.
NOW, THEREFORE, in consideration of the foregoing, the undersigned agree as
follows:
1. Xxxxxxx and STEAG hereby jointly and irrevocably acknowledge the
satisfaction of, and waive any further need to satisfy, the closing conditions
set forth in Sections 7.1(a), (c), and (e) of the SBCA.
2. Xxxxxxx hereby irrevocably (i) acknowledges the satisfaction of, and
waives any further need to satisfy, the closing conditions set forth in Section
7.1(d) and Section 7.2 of the SBCA, except to the extent of the remaining
conditions to the obligations of Xxxxxxx set forth in paragraph 4 of this
Waiver, and (ii) waives all of Xxxxxxx'x termination rights set forth in Section
8.1 of the SBCA, with the exception of subsections (a), (b) and (c) of Section
8.1.
3. STEAG hereby irrevocably (i) acknowledges the satisfaction of, and
waives any further need to satisfy, the closing conditions set forth in Section
7.1(f) and Section 7.3 of the SBCA, except to the extent of the remaining
conditions to the obligations of STEAG set forth in
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paragraph 5 of this Waiver, and (ii) waives all of STEAG's termination rights
set forth in Section 8.1 of the SBCA, with the exception of subsections (a), (b)
and (c) of Section 8.1.
4. The obligation of Xxxxxxx to consummate the Strategic Business
Combination under the SBCA shall remain subject to the condition that Xxxxxxx
receives the following at the Closing, except as may be waived by Xxxxxxx in
writing:
(a) The share certificates evidencing the STEAG Shares, and any
documents and instruments required for the notarization and transfer of the
STEAG Shares under German or other applicable law.
(b) Written evidence reasonably satisfactory to Xxxxxxx (e.g., stock
certificates, official extracts from company registers, and stock transfer
agreements) that Newco has become the owner of all of the Foreign Subsidiary
Shares in the manner described in Section 1.1 of the SBCA.
(c) Written evidence reasonably satisfactory to Xxxxxxx (e.g., stock
certificates and stock powers) that U.S. Newco has become the owner of all of
the outstanding capital stock of each of the U.S STEAG Subsidiaries in the
manner described in Section 1.2 of the SBCA.
(d) Written evidence reasonably satisfactory to Xxxxxxx (e.g.
resolutions certified to have been adopted by the relevant board of directors)
that the STEAG RTP Systems Inc. 401(k) Savings Plan has been terminated
effective prior to the Closing Date.
(e) The written resignations of directors of the STEAG Subsidiaries
required by Section 7.2(i) of the SBCA.
(f) If applicable, an instrument of assignment, in form mutually
acceptable to the parties, evidencing assignment from STEAG to an affiliate of
Xxxxxxx (as designated by Xxxxxxx in accordance with Section 6.13(c) of the
SBCA) of intercompany indebtedness between STEAG and the STEAG Subsidiaries
(other than Excluded Indebtedness), equal in amount to the principal amount of
the Xxxxxxx Secured Note.
(g) Executed copies of each of the Transition Services Agreements
contemplated by Section 6.23 of the SBCA (executed by STEAG and, if applicable,
by each relevant STEAG Subsidiary).
(h) An executed copy of the Slovakia General Supply Contract
contemplated by Section 6.23 of the SBCA (executed by STEAG and by STEAG
Electronic Systems spol. s r.o.).
5. The obligation of STEAG to consummate the Strategic Business
Combination under the SBCA shall remain subject to the condition that STEAG
receives the following at the Closing, except as may be waived by STEAG in
writing:
(a) One or more share certificates evidencing the Xxxxxxx Shares, in
such denominations as requested by STEAG prior to the Closing.
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(b) The Xxxxxxx Secured Note, the stand-by letters of credit, bank
guarantees and the other instruments required by Section 7.3(l) of the SBCA,
and $100,000 in cash.
(c) Written evidence reasonably satisfactory to STEAG that Xxxxxxx
has taken the actions required under Section 6.16 of the SBCA, and that Xxxxxxx
has caused the amendments to its Certificate of Incorporation, as approved by
its stockholders at the special meeting of stockholders held on November 8,
2000, to become effective under Delaware law.
(d) Written evidence reasonably satisfactory to STEAG that Xxxxxxx
has taken all action necessary to grant the options contemplated by Section 6.11
of the SBCA, other than delivery of such options to the employees (which shall
be done as soon as reasonably practicable following the Closing), and other than
the granting of options to employees of the STEAG Subsidiaries in Japan, Korea
and the U.K., subject to the last sentence of Section 6.11 of the SBCA.
(e) Written evidence reasonably satisfactory to STEAG that the
Xxxxxxx Shares have been approved for listing by NASDAQ upon official notice of
issuance.
(f) A copy, executed by Xxxxxxx, of the Transition Services Agreement
relating to patent services.
6. Notwithstanding the other provisions of this Waiver, each party
remains obligated to perform and comply with all of its covenants and
obligations in the SBCA. Other than with respect to the waivers of conditions to
their respective obligations to consummate the Strategic Business Combination
and the waivers of the specified termination rights, neither party waives any of
its rights with respect to any breach by the other party of any representation,
warranty, covenant or obligation under the SBCA, or any of the remedies it would
be entitled to seek for such breach from and after the Closing. In the case of
breaches of representations and warranties under Article III and Article IV of
the SBCA, any such breaches shall, from and after the date hereof, be subject to
the terms of Article IX ("Indemnification") of the SBCA.
7. Terms used in this Waiver and not otherwise defined herein have the
meanings set forth in the SBCA.
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This Waiver may be executed in counterparts, each of which may be treated
as an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Irrevocable Acknowledgment and Waiver Agreement as of the day and year first
above written.
XXXXXXX TECHNOLOGY, INC. STEAG ELECTRONIC SYSTEMS AG
By: /S/ Xxxx Xxxxxxx By: /S/ ppa Lockowandt
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Xxxx Xxxxxxx, Chairman and Xx. Xxxxx Xxxxxxxxxx, General Counsel
Chief Executive Officer
By: /S/ X.Xxxxxx
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Xx. Xxxx Xxxxxx, Chief Financial Officer
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