JOINT VENTURE TERMINATION &
STOCK REDEMPTION AGREEMENT
BETWEEN
AMTECH SYSTEMS, INC
AND
INDIVIDUAL INVESTORS
AND
SEIL SEMICON, INC.
DATED: September , 1996
JOINT VENTURE TERMINATION &
STOCK REDEMPTION AGREEMENT
BETWEEN
AMTECH SYSTEMS, INC
AND
INDIVIDUAL INVESTORS
AND
SEIL SEMICON, INC.
The parties to this Agreement are Amtech Systems, Inc. ("Amtech"), a
corporation duly organized and existing under the laws of the State of Arizona,
United States of America ("USA") having its principal place of business at 000
Xxxxx Xxxxx Xxxxx, Xxxxx, Xxxxxxx, XXX, the INDIVIDUAL INVESTORS, whose
signatures are subscribed hereto, being hereinafter collectively referred to as
the KOREAN INVESTMENT GROUP ("KIG"), and Seil Semicon, Inc., a Korean joint
stock company (chusik hoesa) ("Seil").
The parties have agreed as follows:
1. RECITALS
1.1 Stock Ownership. Amtech is the owner of 45% of the issued and
outstanding capital stock of Seil and has the proxy of X.X. Xxx to vote an
additional 5% of the outstanding capital stock of Seil. Furthermore, Amtech is a
joint venture partner in Seil, with the second largest interest in the venture,
through the Joint Venture Agreement dated September 30, 1995, as revised per the
Amendment Agreement dated November 23, 1995, and through which certain benefits
and obligations were to accrue to Amtech (the "JVC AGREEMENT").
1.2 Purpose. The KIG has requested the termination of the JVC Agreement
and has sought mutual agreement for termination pursuant to Article 17.1 of that
agreement. Amtech has agreed to said termination on the condition that mutual
agreement is reached for the disposition of its interest in Seil pursuant to
Article 18.2 of the JVC Agreement. Seil desires to redeem the 45% ownership
interest of Seil owned by Amtech through the purchase from it of all of the
outstanding capital stock of Seil owned by Amtech ("Seil Stock"), in accordance
with the mutual agreement reached between the KIG, Amtech, and Seil. Amtech
desires to sell the Seil Stock to Seil pursuant to the terms and conditions of
this Agreement.
2. THE TRANSACTION
2.1 Redemption of Seil Stock. Subject to all of the terms and
conditions of this Agreement, Amtech agrees to sell and Seil
2
agrees to redeem, at the Closing (hereinbelow defined), but effective as of
September 30, 1996, unless closed earlier, the Seil Stock, free and clear of all
liens, claims, options, charges and encumbrances whatsoever, for the redemption
price specified below.
2.2 Redemption Price. The redemption price for the Seil Stock shall be
$478,143 and shall be paid on or before September 30, 1996.
2.3 Termination of JVC. When one or more Certificates of Termination in
the same form as Exhibit A, attached, have been signed by Amtech, Seil, and the
KIG, Mr. Seung Kag Hong, Jae-Im Ko, his wife, and X.X. Xxx (the "Parties"), the
JVC will terminate and the Parties will no longer have any further rights or
obligations under the JVC Agreement, except as may be provided in the
Certificates of Termination.
2.4 Closing. The delivery of the Seil Stock, the delivery of the
Certificates of Termination, and the payment of the redemption price in the
amount of $478,143 and of any other instruments, certificates and items to be
delivered under this Agreement (the "Closing") shall take place by facsimile
assignment of the Seil Stock, facsimile delivery of the Certificates of
Termination and the wire transfer, with facsimile confirmation, of funds via the
SWIFT system to:
Mellon Bank
Pittsburgh, Pennsylvania, USA
ABA # 0000-0000-0
Credit: Xxxxxxx Xxxxx
For further credit to:
Amtech Systems, Inc.
on or before September 30, 1996, Arizona time (the "closing Date") or at such
other place or time upon which the parties may agree in writing. The Parties
hereby agree that signed assignments, certificates and other instruments
delivered by means of facsimile transmission will be legally binding and treated
the same as if an original. Facsimile transmissions to Amtech should be sent to
0-000-000-0000 and if to any of the other Parties to 00-0-000-0000. The Parties
agree to mail a signed original of each document delivered by facsimile, if
requested by one of the other Parties.
3. REPRESENTATIONS AND WARRANTIES OF AMTECH
3.1. Representations and Warranties. Amtech represents and warrants to
and agrees with Seil that:
(a) Authority. Amtech has all requisite corporate power and
authority to execute, deliver and perform this Agreement
3
and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to consummate
the transactions contemplated by this Agreement. This Agreement has
been duly executed and delivered by Amtech, and each document or
instrument executed or to be executed by Amtech pursuant hereto upon
execution and delivery will have been duly executed and delivered, and
this Agreement constitutes the legal, valid and binding obligation of
Amtech, enforceable in accordance with its terms.
(b) No Conflict. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the
compliance with the terms and conditions hereof will not, to the
knowledge of Amtech, conflict with, or result in a breach of (1) any
relevant statute, law, ordinance, rule or regulation applicable to
Amtech or its business, or (2) the terms, conditions or provisions of
the corporate charter or the by-laws of Amtech, the conflict or breach
of which would adversely affect Seil's rights hereunder in any material
respect.
(c) Disclosure. To the knowledge of Amtech, no representation
or warranty by Amtech hereunder contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading.
3.2. Representations and Warranties True on the Closing Date. To the
knowledge of Amtech, all of the representations and warranties of Amtech
contained herein shall be true and correct in all material respects on and as of
the Closing Date, except as consented to by Seil in writing on or before the
Closing Date.
3.3. Survival of Representations and Warranties. The representations
and warranties of Amtech contained herein shall survive the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF SEIL AND KIG
4.1. Representations and Warranties. Seil and the undersigned
Individual Investors represent and warrant to and agree with Amtech that:
(a) Corporate Existence. Seil is a corporation duly organized
and existing under the laws of Korea and has the corporate power and
authority to enter into this Agreement.
(b) Validity of Agreement. Seil has taken such corporate steps
as are necessary to authorize the execution of the Agreement and to
comply in full with the terms thereof
4
that are to be performed by Seil. This Agreement is a valid obligation
of Seil in accordance with its terms. This Agreement and compliance
with its terms are not inconsistent with Seil's Articles of
Organization, its by-laws or any agreement to which Seil is a party.
This Agreement when signed by the Individual Investors will binding
upon them.
(c) Governmental Interference. Seil and the Individual
Investors do not know or have reasonable grounds to know of any action
before a court or other governmental body pending or threatened by the
government or any agency thereof or by any other third party that might
restrain or prohibit the redemption by Seil of the Seil Stock as herein
contemplated or the termination of the JVC Agreement.
(d) Consents and Approvals. Seil and the Individual Investors
do not know or have reasonable grounds to know of any requirement for
the consents or approvals of third parties, whether they be the
Industrial Bank of Korea, its affiliates, parties to other agreements,
or the government of Korea or its provinces or any agency thereof, in
order to enter into the Agreement and to comply in full with the terms
thereof that are to be performed by them, or that if any such consents
or approvals are so required, they will be obtained by the Closing.
4.2. Representations and Warranties True on Closing Date. All of the
representations and warranties of Seil and the Individual Investors contained
herein shall be true and correct in all respects on and as of the Closing Date,
except as consented to by Amtech on or before the Closing.
5. CONDITIONS TO CLOSING
5.1. Conditions to Closing by the Parties. The obligations of Amtech,
KIG and Seil to consummate the transactions contemplated hereby are, at the
option of each party, subject to the fulfillment of the condition that on the
Closing Date:
(a) there shall not be any injunction, writ, preliminary
restraining order or any order of any nature issued by any court or
governmental agency directing the transaction contemplated by this
Agreement not be consummated, and
(b) there shall not be pending or known to be threatened any
action, proceeding or investigation before any such court or
governmental agency seeking as to any party hereto any such injunction,
writ, or preliminary restraining order.
5
5.2. Conditions to Closing by Seil and the KIG. The obligations of Seil
and the KIG to consummate the transactions contemplated hereby are, at the
option of Seung Kag Hong, subject to the fulfillment of each of the conditions
that, on or before the Closing Date:
(a) Representations and Warranties True; Obligations
Performed.
(i) The representations and warranties of Amtech
contained in Section 3.1 hereof shall be true and correct in
all material respects at and as of the Closing Date except for
specifically consented to or approved by Seil in writing, with
the same force and effect as if made at and as of the Closing
Date;
(ii) Amtech shall have delivered to Seil an
assignment of the Seil Stock or other documents reflecting the
legal transfer of ownership as may reasonably be requested by
Seil, dated the Closing Date and signed by the President of
Amtech.
(c) Certain Legal Matters. All actions, proceedings,
instruments and documents required to carry out this Agreement, or
incidental thereto, and all other related legal matters, shall be
reasonable satisfactory to the President of or counsel for Seil and
such person shall have received all documents, instruments or copies
thereof, certified if and as may be reasonably requested.
(d) Compliance. Amtech shall have performed and complied in
all material respects with all agreements, covenants and conditions
required by this Agreement to have been performed or complied with
prior to or at the Closing Date.
(e) Other Instruments and Actions. Amtech shall have executed
and delivered to Seil such other instruments and taken such other
action as Seil may reasonably have requested with respect to the
transactions contemplated by this Agreement.
5.3 Conditions to Closing by Amtech. The obligations of Amtech to
consummate the transactions contemplated hereby are, at the option of Amtech,
subject to the fulfillment of each of the conditions that, on or before the
Closing Date:
(a) Representations and Warranties True; Obligations
Performed. (i) The representations and warranties of Seil and the
Individual Investors contained in Section 4.1 hereof shall be true and
correct at and as of the Closing Date except
6
for specifically consented to or approved by Amtech in writing, with
the same force and effect as if made at and as of the Closing Date.
(b) Compliance. Seil and the KIG shall have performed and
complied with all agreements, covenants and conditions required by this
Agreement to have been performed or complied with prior to or at the
Closing Date.
6. BROKERS
Amtech and Seil represent that they have dealt with no broker in
connection with any of the transactions contemplated by this Agreement and that
no broker or other person is entitled to any commission or finder's fee in
connection with any of such transactions.
7. INDEMNIFICATION BY AMTECH
Amtech hereby agrees to indemnify and hold harmless Seil and KIG
(herein referred to as "Seil/KIG"), at all times after the date of this
Agreement, against and in respect of:
(a) Any and all damage or deficiency resulting from any
material inaccuracy of any representation or warranty made by or
non-fulfillment of any agreement on the part of Amtech under this
Agreement, whether or not such inaccuracy, breach, nonfulfillment,
misrepresentation or omission was or should have been known by Seil/KIG
on the date of this Agreement, it being the agreed intention of the
parties that Amtech shall be completely responsible for, and Seil/KIG
shall be conclusively deemed to have relied upon, such representations,
warranties, agreements and instruments.
(b) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including without
limitation, reasonable attorneys' fees, incident to any of the
foregoing; provided that no claim for indemnification shall be made
pursuant to this Section 7 unless Seil/KIG has suffered such loss,
damage or expense in a cumulative minimum of $5,000.
(c) Promptly after receipt by Seil/KIG under this Section 7 of
notice of the commencement of any action, Seil/KIG will, if a claim in
respect thereof is to be made against Amtech under this Section 7,
notify Amtech in writing of the commencement thereof, but the omission
to notify Amtech will not relieve Amtech from any liability that it may
have to Seil/KIG otherwise than under this Section 7. In case any such
action is brought against Seil/KIG and it notifies Amtech of the
commencement thereof, Amtech will be entitled to
7
participate therein and, to the extent that it may elect by written
notice delivered to Seil/KIG promptly after receiving the aforesaid
notice from Seil/KIG, to assume the defense thereof; provided, however,
if the defendants in any such action include both Seil/KIG and Amtech
and either (i) Amtech mutually agrees, or (ii) representation of both
Seil/KIG and Amtech by the same counsel is inappropriate under the
applicable standards of professional conduct due to actual or potential
conflicting interests between them, Seil/KIG shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action. Amtech will not be liable to
Seil/KIG under this Section 7 for any legal or other expenses
subsequently incurred by Seil/KIG in connection with the defense
thereof unless (i) Seil/KIG shall have employed counsel in connection
with the assumption of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however, that Amtech
shall not be liable for the expense of more than one separate counsel
approved by Amtech), (ii) Amtech shall not have employed counsel to
represent Seil/KIG within a reasonable time after notice of
commencement of the action, or (iii) Amtech has authorized the
employment of counsel for Seil/KIG at the expense of Amtech. In no
event shall Amtech be liable under this Section 7 for any settlement
effected without its written consent, of any claim or action against
Seil/KIG.
8. INDEMNIFICATION BY SEIL AND KIG
Seil and the KIG (herein referred to as "Seil/KIG") hereby agree to
indemnify and hold harmless Amtech and to accept joint and several liability
therefor, at all times after the date of this Agreement, against and in respect
of:
(a) Any and all damage or deficiency resulting from any
material inaccuracy of any representation or warranty made by or
non-fulfillment of any agreement on the part of Seil/KIG under this
Agreement, whether or not such inaccuracy, breach, nonfulfillment,
misrepresentation or omission was or should have been known by Amtech
on the date of this Agreement, it being the agreed intention of the
parties that Seil/KIG shall be completely responsible for, and Amtech
shall be conclusively deemed to have relied upon, such representations,
warranties, agreements and instruments.
(c) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including without
limitation, reasonable attorneys' fees, incident to any of the
foregoing; provided that no claim for indemnification shall be made
pursuant to this Section 8 unless Amtech has suffered such loss, damage
or expense in a cumulative minimum of $5,000.
8
(d) Promptly after receipt by Amtech under this Section 8 of
notice of the commencement of any action, Amtech will, if a claim in
respect thereof is to be made against Seil/KIG under this Section 8,
notify Seil/KIG in writing of the commencement thereof, but the
omission to notify Seil/KIG will not relieve Seil/KIG from any
liability that it may have to Amtech otherwise than under this Section
8. In case any such action is brought against Amtech and it notifies
Seil/KIG of the commencement thereof, Seil/KIG will be entitled to
participate therein and, to the extent that it may elect by written
notice delivered to Amtech promptly after receiving the aforesaid
notice from Amtech, to assume the defense thereof; provided, however,
if the defendants in any such action include both Amtech and Seil/KIG
and either (i) Seil/KIG mutually agrees, or (ii) representation of both
Seil/KIG and Amtech by the same counsel is inappropriate under the
applicable standards of professional conduct due to actual or potential
conflicting interests between them, Amtech shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action. Seil/KIG will not be liable
to Amtech under this Section 8 for any legal or other expenses
subsequently incurred by Amtech in connection with the defense thereof
unless (i) Amtech shall have employed counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that Seil/KIG shall
not be liable for the expense of more than one separate counsel
approved by Seil/KIG), (ii) Seil/KIG shall not have employed counsel to
represent Amtech within a reasonable time after notice of commencement
of the action, or (iii) Seil/KIG has authorized the employment of
counsel for Amtech at the expense of Seil/KIG. In no event shall
Seil/KIG be liable under this Section 8 for any settlement effected
without its written consent, of any claim or action against Amtech.
9. NOTICE
Any and all notices herein provided for or relating to the transactions
contemplated by this Agreement shall be in writing and shall be deemed to have
been sufficiently given to Amtech if mailed, postage prepaid, by certified mail
with return receipt requested and addressed to, or if delivered, to:
AMTECH SYSTEMS, INC.
000 XXXXX XXXXX
XXXXX, XXXXXXX 00000
ATTN: X.X. XXXXX, PRESIDENT
and to Seil if mailed, postage prepaid, by certified mail with return receipt
requested and addressed to, or delivered, to:
0
XXXX XXXXXXX, XXX.
XXXXX, XXXXX XXXXX
ATTN: SEUNG KAG HONG, PRESIDENT
and to KIG if mailed, postage prepaid, by certified mail with return receipt
requested and addressed to, or delivered, to:
MR. SEUNG KAG HONG AND
JAE-IM-KO
211-1402 LG APT.
JUNG-XX XXXX, SUNG-XXX
XXXXX-KI DO, KOREA
or to such other address as either party may specify in writing by notice to the
other.
10. EXPENSES
Amtech and Seil shall each pay their own costs and expenses incurred in
connection with the preparation of this Agreement and the carrying out of the
transactions contemplated hereby. However, transfer taxes on the transfer of the
Seil Stock, if any, shall be born by Seil.
11. ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT
This Agreement contains the entire agreement and understanding of the
parties hereto with respect to Seil's redemption of Seil Stock from Amtech and
supersedes any other oral or written agreements or understandings with respect
thereto, which agreements or understandings, if any, are hereby terminated. This
Agreement may not be altered, modified or changed in any manner whatsoever
except by a writing signed by Amtech, Seil and KIG.
13. SUCCESSORS AND ASSIGNS
The terms of this Agreement shall be binding upon, and the benefits of
this Agreement shall inure to, the successors and assigns of the parties hereto.
Seil shall have the right to assign its rights and obligations under this
Agreement to replacement investor; provided, however, that Seil shall remain
liable with respect to its obligations hereunder.
14. GOVERNING LAW; LEGAL PROCEEDINGS
Notwithstanding the termination of the JVC Agreement at the Closing,
the dispute resolution, arbitration and governing law applicable to this
Agreement shall be as provided in Article 23 of the JVC Agreement as if fully
setforth herein. Furthermore, this
10
Agreement is written in the English language and executed in three (3)
counterparts, each of which shall be deemed an original. The English language
text of this Agreement shall prevail over any translation thereof. Any provision
or clause hereof which shall be invalidated by virtue of the fact that it is
prohibited by law shall be ineffective to the extent of such illegality;
however, this shall in no way affect the remaining provisions of this Agreement,
and this Agreement shall be interpreted as if such clause or provision were not
contained herein, unless such ineffective provision or clause shall be so
significant as to materially affect the parties' expectations regarding this
Agreement.
15. COUNTERPARTS
This Agreement may be executed and delivered in a number of
counterparts, each of which, when so executed and delivered, shall be an
original and all of such counterparts shall together constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
AMTECH, INC. SEIL SEMICON, INC.
By____________________________ By_________________________
X. X. Xxxxx, President& CEO Seung Kag Hong, President
INDIVIDUAL INVESTORS
By____________________________ By____________________________
Mr. Seung Kag Hong Xx. X.X. Xxx
By____________________________
Jae-Im Ko
11
EXHIBIT 1
CERTIFICATE OF TERMINATION
DATE:
Pursuant to the terms and conditions in the Joint Venture Termination & Stock
Redemption Agreement, each of the undersigned does hereby agree to the
termination of the Joint Venture Agreement dated September 30, 1995, as revised
per the Amendment Agreement dated November 23, 1995, and further agrees that all
rights and obligations arising out of that agreement are terminated. This
Certificate of Termination shall be effective when Amtech Systems, Inc., Seil
Semicon, Inc., Seung Kag Hong, Jae-Im Ko, his wife, and X.X. Xxx have all signed
this Certificate of Termination or another one with the same content and Amtech
has received the redemption price.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
AMTECH, INC. SEIL SEMICON, INC.
By____________________________ By_________________________
X. X. Xxxxx, President & CEO Seung Kag Hong, President
INDIVIDUAL INVESTORS
By____________________________
Mr. Seung Kag Hong
By____________________________
Jae-Im Ko
By____________________________
Xx. X.X. Xxx
