EXHIBIT 2.2
AMENDMENT AGREEMENT
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THIS AMENDMENT AGREEMENT ("Amendment") is made and entered into this 23rd
day of March, 2000 by and among Asyst Technologies, Inc., a corporation
organized and existing under the laws of California (hereinafter, "Asyst"), MECS
Corporation, a kabushiki kaisha organized and existing under the laws of Japan
(hereinafter, the "Company"), and Xx. Xxxxx Xxxxxx (hereinafter, "Xx. Xxxxxx").
WITNESSETH:
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WHEREAS, Asyst, the Company and Xx. Xxxxxx previously executed that certain
Agreement for Sale and Purchase of Common Stock, dated as of September 27, 1999
(hereinafter the "Purchase Agreement") concerning Asyst's acquisition of up to
all of the issued and outstanding shares of common stock of the Company; and
WHEREAS, the parties desire to amend certain provisions of the Purchase
Agreement as contemplated in this Amendment;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises contained herein, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined herein
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shall have the meanings ascribed thereto in the Purchase Agreement.
Notwithstanding the foregoing, the following terms shall have the following
definitions:
(a) "MECS Ryu" means MECS Ryu K.K., a kabushiki kaisha organized under the
laws of Japan.
(b) "Purchase Price" shall mean (Yen)285 per share for each Selling
Shareholder Share.
(c) "Selling Shareholder Shares" means 3,628,000 shares of the issued and
outstanding common stock of the Company owned by Xx. Xxxxxx and the
persons listed on Schedule 1.
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(d) "Technowave" means Technowave K.K., a kabushiki kaisha organized under
the laws of Japan.
2. Phase Two Closing. The parties hereby agree that at the Phase Two
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Closing, Asyst shall acquire only the Selling Shareholder Shares and shall not
be obligated to acquire or otherwise offer to acquire any Other Shares. For the
avoidance of doubt, nothing in this Amendment shall preclude or otherwise
restrict Asyst from acquiring or offering to acquire Other Shares other than as
part of the Phase Two Closing.
3. Payment. The Purchase Price shall be paid to the following account at
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Okagi Kyoritsu Bank, Xxxxx Xxxxxx, Ordinary Account no. 621873, Account Holder:
Xx. Xxxxx Xxxxxx.
4. Asyst Waiver of Closing Conditions. Asyst hereby waives the following
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closing conditions set forth in the Purchase Agreement to the Phase Two Closing:
(a) Sections 7.2(a) and 7.2(c) as to the Company's achievement of the
performance targets set forth in Schedule 7.2(a) of the Purchase
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Agreement and in the Business Plan.
(b) Section 7.2(b) solely as to the requirement of retention of all of the
senior management of the Company.
(c) Section 7.2(d) solely to the extent that MECS Ryu shall not have been
disposed as of the Phase Two Closing.
(d) Section 7.2(h) to the extent that the Company's aggregate cash and
deposits at the Phase Two Closing will be (Yen)285,000,000, after
payment of (Yen)55,000,000 from the Company to Xx. Xxxxxx.
(e) Section 7.2(k) to the extent that the Y2K advisor was never retained
by the Company.
5. Xx. Xxxxxx Waiver of Closing Conditions. Xx. Xxxxxx hereby waives the
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following closing conditions set forth in the Purchase Agreement to the Phase
Two Closing:
(a) Section 8.2(a) as to the requirement of the release of Xx. Xxxxxx'x
guaranty.
6. New Phase Two Closing Obligations. The parties hereby agree, as
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conditions precedent to the Phase Two Closing, that:
(a) Asyst and Xx. Xxxxxx shall execute and deliver to one another
counterpart originals of the Indemnity Agreement attached as Schedule
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2;
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(b) If the Company's guaranty of the MEC Ryu debt has not been released as
of the Phase Two Closing, the Company shall be entitled to reserve 30%
of the face amount of such guaranty from any amounts that the Company
may owe to Xx. Xxxxxx;
(c) The Company agrees to make the following one-time payments: (1) to Xx.
Xxxxxx, the amount of (Yen)11,000,000 as a director's retirement
allowance, (2) to Technowave, (Yen)6,000,000 as a consulting fee, and
(3) to Xx. Xxxxxx, (Yen)5,850,000 as his salary for the month of
March;
(d) Xx. Xxxxxx agrees to pay the Company (Yen)4,900,000 in exchange for
the stock of Technowave;
(e) Xx. Xxxxxx agrees to allow the Company and Asyst to adjust certain
payments that may be hereafter due to him to take into account the
difference between the amount paid for the Selling Shareholder Shares
at the Phase One Closing and the Purchase Price hereunder; and
(f) Xx. Xxxxxx agrees to assume all obligation and responsibility for, and
to indemnify and hold harmless the Company and Asyst from and against,
any and all claims, costs or other liabilities arising in connection
with those certain equipment leases attached as Schedule 3 hereto or
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the Company's guaranty of such equipment leases.
7. Amendment. The terms of this Amendment may be amended, modified or
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altered only by an instrument in writing executed by all of the parties hereto.
8. No Other Amendments. Except as provided herein, all other terms and
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conditions of the Purchase Agreement remain in full force and effect.
9. Governing Law and Language. This Amendment shall be governed by and
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construed in accordance with the laws of Japan. Disputes arising out of, or
relating to, this Amendment may be brought in the District Court of Tokyo. This
Amendment is entered into solely in the English language, which language shall
exclusively govern its meaning and interpretation.
10. Severability. The invalidity or unenforceability of any provision of
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this Amendment shall not affect the validity or enforceability of any other
provision. This Amendment shall continue in full force and effect except for
any such invalid or unenforceable provision.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date hereinabove mentioned.
ASYST TECHNOLOGIES, INC., XX. XXXXXX
a California corporation
By:_______________________ ________________________
Name:_____________________ Xxxxx Xxxxxx
Title:______________________
MECS CORPORATION,
a kabushiki kaisha
By:_______________________
Name:_____________________
Title:______________________
Schedule 1
The Selling Shareholders
Name of Shareholder Number of Shares
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1. Xxxxx Xxxxxx 621,000 shares
2. Xxxxxxxx Xxxxxx 1,470,000 shares
3. Xxxxxx Xxxxxx 740,000 shares
4. Xxxxxxx Xxxxxx 700,000 shares
5. Xxxxxx Xxxx 24,000 shares
6. Xxxxxx Xxxx 24,000 shares
7. Xxxxxx Xxxxxx 49,000 shares
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Total 3,628,000 shares
Schedule 2
Indemnity Agreement
Schedule 3
The Equipment Leases
