Exhibit 10.43
(Translation)
TO: Xxxxxxxx XXXXX
President and Director
Shinko Electric, Co., Ltd. (the "Shinko")
RE: AMENDMENTS TO THE SHAREHOLDERS AGREEMENT
For the purpose of enabling Asyst Technologies, Inc. ("US ASYST
TECHNOLOGIES"), our parent company, to undertake consolidation with Asyst Shinko
Inc., ("ASI") in respect of accounting treatment, we, Asyst Japan Inc. ("AJI")
write to ask your assistance such that Xxxxxx consents to amendment of Section
3.3 (c) and other parts of the Shareholders Agreement (the "SHAREHOLDERS
AGREEMENT") entered into by and between Xxxxxx and us as of May 24, 2002, which
sets forth special resolution matters for the Board of Directors of ASI, as
attached.
Notwithstanding the amendments to the Shareholders Agreement mentioned above,
for the purpose of conducting the business of ASI, we shall undertake a
consultation with Shinko sufficient to address the matters set forth below prior
to the resolution of the Board of Directors of ASI , and shall make efforts to
cause the matters agreed during such consultation to be submitted as an agenda
item of a meeting of the Board of Directors of ASI,;
i) borrowing or incurring any indebtedness exceeding JPY 40 million,
purchasing and/or disposing of any assets and investing in equipment and/or
making any loan;
ii) declaring interim dividends; and
iii) establishment of subsidiaries of ASI.
In addition, we hereby confirm and undertake that this request be submitted
on our own responsibility, that we indemnify Shinko from any and all damages
which may be directly caused by submission of this request and that,
irrespective of whether ASI will undergo consolidation with US Asyst
Technologies, no changes will occur as to our obligations (including our
payment obligation in respect of the Share Purchase Price) under the Share
Purchase Agreement entered into by and between Shinko and us as of May 24,
2002.
Finally, we hereby confirm that the matters mentioned herein have also been
approved by US Asyst Technologies, our parent company.
October 16th, 2002
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
President and Representative Director
Asyst Japan Inc.
October 16th, 2002
We hereby approve the amendments to the Shareholders Agreement pursuant to the
content of the Annex, as attached hereto.
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
President and Director
Shinko Electric Co., Ltd.
Annex
Amendments to the Shareholders Agreement
1. (Definitions)
(a) Unless otherwise expressly provided in this Annex or otherwise
required by the context of this Annex, any words defined in the
Shareholders Agreement shall, in this Annex, have the same meanings as
defined therein.
(b) In the event of difference between the definition of any words in this
Annex and in the Shareholders Agreement, the definition thereof in the
Shareholders Agreement shall prevail.
(c) This Annex shall form a part of the Shareholders Agreement to
constitute one agreement together with the Shareholders Agreement, and
any reference to the "Shareholders Agreement" or the "Agreement" in
the Shareholders Agreement shall mean the Shareholders Agreement which
has been amended according to the content of this Annex.
2. (Agreements to the amendments)
Xxxxxx and XXX hereby agree that the Article 3.3(c) of the Shareholders
Agreement is hereby wholly deleted and the following is inserted in its
place:
3.3 BOARD QUORUM AND VOTING MAJORITIES
(c) Matters requiring Unanimous Approval
Approval of the following matters needs, to the extent permitted under
Applicable Laws, the presence of 5 or more Directors including at
least 1 Shinko Director and 1 Asyst Director, respectively, at the
relevant Board meeting, and also the unanimous approval of the
Directors present at the said Board meeting. The Company shall not
take any of the following actions without obtaining such approval.
Both Parties shall arrange for the Company to observe such
obligations.
(i) commencement of such new business as is not closely related to
the semiconductor and liquid crystal materials conveyance
system business of ASI;
(ii) borrowing or incurring any indebtedness, purchasing and/or
disposing of any assets and investing in equipment and/or
making any loan which are beyond the extent of ordinary
business operation, except as approved in the Business Plan
and Budget;
(iii) establishing, changing and/or closing any branch office of the
Company and other important establishments;
(iv) issuing additional Shares;
(v) election or removal of Representative Directors or adoption of
joint Representative Director system, in accordance with
CLAUSE 3.2.
(vi) approval concerning the transfer of Shares which are subject
to restrictions on transfer, or the appointment of a person
with the right of first refusal;
(vii) issuance of share call options ("Shinkabu Yoyakuken" in
Japanese);
(viii) issuance of bonds with subscription rights ("Shinkabu
Yoyakuken Tsuki Shasai" in Japanese);
(ix) approval of business reports, balance sheets, profit and loss
statements, and proposals relating to the disposition of
profit/loss and annexed specifications thereof (including
matters regarding reserves referred to under CLAUSE 6.2);
(x) crediting the Company's reserve funds to its stated capital;
(xi) declaring interim dividends (excluding such cases as are
implemented through the ordinary business process);
(xii) approval of the establishment of subsidiaries of the Company
(excluding such cases as are implemented through the ordinary
business process);
(xiii) approval of the execution of major contracts between the
Company and any of the Shareholders and of any amendment
thereto; and
(xiv) change to the accounting policies adopted by the Company.
3. (Binding nature)
Xxxxxx and XXX hereby confirm that the amendments to the Shareholders
Agreement according to the contents of this Annex shall be binding on and
enforceable against Xxxxxx and XXX, respectively.
4. (Effective Date)
Amendment to the Shareholders Agreement according to the contents of this
Annex shall become effective retroactively on the effective date of the
Shareholders Agreement.
