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EXHIBIT 10.44
AMENDMENT AGREEMENT
This amendment agreement (the "Agreement") is made and entered
into on this 7th day of September 1997 by and among AG Associates,
Inc., a California corporation (hereinafter: "AGA"), AG Associates
(Israel) Ltd., an Israeli corporation (hereinafter: "AGI"), Arnon
Gat, a U.S. resident (hereinafter: "GAT"), Clal Electronics
Industries Ltd., an Israeli corporation (hereinafter: "CLAL") and
Rapro Technology Inc., a Delaware corporation (hereinafter: "Rapro").
WHEREAS priorto entering this Agreement, the Parties hereto
entered into a certain agreement, dated February 27,
1995 (the "Original Agreement"), by and among AGA,
AGI, GAT, CLAL and Rapro under which, among other
matters, AGA and CLAL invested in AGI's capital in
consideration for shares and pursuant to certain
representations and warranties made by the Parties ,
and certain matters regarding AGI's management and
their relations as shareholders were decided among
them; and
WHEREAS AGI is currently negotiating the execution and
performance of a private placement transaction; and
WHEREAS the Parties hereto desire to make amendments to the provisions
in the Original Agreement, as set forth in this Agreement. in
order to facilitate the forthcoming Private Placement
transaction.
NOW THEREFORE. in consideration of the mutual representations, warranties,
covenants and conditions contained herein, the Parties to this Agreement hereby
agree as follows:
1. Preamble and Annexes
The preamble to this Agreement and all annexes attached hereto form an
integral part of this Agreement.
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2. Construction
2.1 Any reference to a Section of the Original Agreement shall be
deemed to include all of the subsections of such Section,
unless otherwise specifically stated.
2.2 Unless otherwise noted herein. all capitalized terms used
herein, shall have the meaning given to such terms in the
Original Agreement.
3. Condition Precedent
This Amendment Agreement and the consummation of the amendments made hereunder
shall be subject to and conditional upon the occurrence of the two following
events:
(i) Consummation of an Investment of capital in AGI of not less than four
million five hundred thousand U.S. Dollars (US$4,500,000) to be made by
investor(s) (who may include AGA and CLAL as well) not later than
December 31, 1997; and
(ii) the execution of a shareholders agreement among AGA, CLAL, and the other
investor(s) as an integral part of the abovesaid investment transaction.
Notwithstanding that this Amendment Agreement is binding upon the parties hereto
as of the date of its execution, the amendments made herein shall become
effective only upon the fulfillment of the above conditions precedent, ipso
facto, whereas in the event the above conditions precedents are not fulfilled by
December 31, 1997, the Amendment Agreement shall be ipso facto, terminated and
the amendments set forth herein shall be null and void.
4. Amendments to the Original Agreement
The parties agree and consent to make the following amendments to the
Original Agreement, which amendments shall become effective only upon
the fulfillment of the aforementioned conditions precedent, ipso facto:
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4.1 Representations by AGA and GAT
GAT's personal duty and obligation with respect to the
representations. warranties, covenants and undertakings under
Section 6 of the Original Agreement, exceptfor those representations
and warranties under subsection 6.8 and that part of subsection 6.10
insofar as it relates to GAT, are hereby terminated, and deemed null
and void ab initio. such that GAT shall not be responsible in any
way whatsoever and shall have no obligation whatsoever towards any
Party hereto, with respect to the representations, warranties,
covenants and undertakings made thereunder, as if same had not been
made by GAT ab initio.
4.2 Representations AGI, AGA, RAPRO, and GAT
4.2.1 The duty and obligation of each of AGI, AGA,
Rapro and GAT with respect to the
representations, warranties, covenants and
undertakings under Section 7 of the Original
Agreement (excluding AGA's duty and
Obligation under subsection 7.25.7, which
shall continue to be valid and in effect
subject to the terms herein), is hereby
terminated and deemed null and void ab
initio, such that each of the above parties,
their respective directors, officers,
employees, shareholders and representatives,
shall not be responsible in any way
whatsoever and shall have no obligation
whatsoever towards any, Party hereto, with
respect to the representations, warranties,
covenants and undertakings made thereunder,
as if same had not been made by each of said
parties ab initio.
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4.2.2 AGA shall continue to be liable under section 7.25.7 of the Original
Agreement but, notwithstanding anything to the contrary in the original
Agreement as amended, only towards AGI and not towards
CLAL.
4.3 Representations by CLAL
CLAL's duty and obligation with respect to the representations,
warranties, covenants and under takings made under Section 8 of the
Original Agreement toward AGI and GAT are hereby terminated, and deemed
null and void ab initio, such that CLAL, its directors, officers,
employees, shareholders and representatives, shall not be responsible in
any way whatsoever and shall have no obligation whatsoever toward AGI
and GAT, with respect to the representations, warranties, covenants and
undertakings made thereunder, as if same had not been made by CLAL
toward said parties ab initio.
It is hereby clarified that the representations, warranties, covenants and
undertakings made by CLAL under Section 8 of the Original Agreement toward AGA
shall remain valid and in effect.
4.4 The CVD Activities (the "Technology Agreement").
4.4.1 Sections 5.3.9 termination of co-ownership and licensee) and
5.3.12 (purchase of CLAL's Shares if AGI ceases operations) of
the Original Agreement are hereby terminated and shall be deemed
as deleted from the Original Agreement.
4.4.2 The remaining provisions of Section (excluding sub-sections 5.1
and 5.2 of the original Agreement, after deleting
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sub-Sections 5.3.9 and 5.3.12 as aforesaid, are hereby amended to create a
contractual obligation between AGA and AGI only. It is hereby clarified that, as
a result of the foregoing, all other persons and/or entities constituting
parties to the original agreement shall not be parties to such amended
provisions.
4.5 Option
Section 10 of the Original Agreement is hereby terminated.
4.6 Indemnification
The provisions of Section 11 shall apply to each Party hereto only
with respect to those obligations under the representations,
warranties, covenants and undertakings, which shall remain under the
Original Agreement after executing the amendments herein.
4.7 Covenants of AGI
Sections 13.1, 13-2. 13.3. 13.4. 13.5, 13.6, 13.7,
13.8 and 13.9 of the Original Agreement are hereby
terminated.
4.8 Shareholder's Relations
All of the provisions of Section 14 of the Original Agreement, except
for sub-section 14.4 which shall remain in force - are hereby
terminated.
4.9 Covenant Not to Compete
GAT covenants under Section 16.8 of the Original Agreement shall
terminate following the lapse of a 36 month period commencing from the
date of the first Closing, conducted within the framework of AGI's
capital raising transaction, referred to in Section 3(i) hereinabove.
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It is hereby confirmed that the engagement of GAT and his activities with AGA
shall not be deemed as a breach of his undertakings under Section 16.8 of the
Original Agreement as long as AGA fulfills its undertakings under Section 5.3.7
of the Original Agreement not to compete and not to be engaged in AGI's field of
use, set forth in Annex Y attached to the Original Agreement, and any amendment
thereto.
5. Incorporation by Reference
Sections 18 ("Governing Law"), 12 ("Execution in Counterparts"), 19
("Arbitration"), 24 ("Captions"), and 29 ("Notices") of the Original
Agreement are hereby incorporated herein by reference.
6. AGA's address for purposes of notice is hereby changed to 0000 Xxxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, 00000-0000 Fax No. (000) 000-0000.
In witness whereof, the parties hereto have caused this Agreement be
duly executed on the day and year first above written.
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AGA Associates, Inc. AG Associates (Israel) Ltd.
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Clal Electronics Industries Ltd. Arnon Gat
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Rapro Technology Inc.
