EXHIBIT 2
AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT
THIS AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT (this
"AMENDMENT"), dated as of December 15, 2000, is entered into by and among
STEAG Electronic Systems AG, an Aktiengesellschaft organized and existing
under the laws of the Federal Republic of Germany ("STEAG"), and Xxxxxxx
Technology, Inc., a Delaware corporation ("XXXXXXX").
RECITALS
X. Xxxxxxx and STEAG have entered into that certain Strategic
Business Combination Agreement, dated as of June 27, 2000 (the
"Agreement"), pursuant to which Xxxxxxx will directly or indirectly acquire
100% of the issued and outstanding capital stock, equity ownership or its
equivalent of the STEAG Subsidiaries (as defined in the Agreement).
B. STEAG and Xxxxxxx desire to amend the Agreement as set forth
below in order to effect certain changes in the structure and consideration
of the transactions contemplated thereby and to implement certain other
modifications and clarifications.
NOW, THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and valuable
consideration, STEAG and Xxxxxxx agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined
in this Amendment shall have the respective meanings ascribed to such terms
in the Agreement.
2. RECITALS. Recitals A, B and C of the Agreement are hereby
deleted and replaced in their entirety by the following:
"A. STEAG and Xxxxxxx desire to enter into a transaction
pursuant to which Xxxxxxx will directly or indirectly acquire 100%
of the issued and outstanding capital stock, equity ownership or
its equivalent (which, for purposes of this Agreement, shall be
referred to as "capital stock") (the "STOCK ACQUISITION") of the
STEAG subsidiaries listed on EXHIBIT A to this Agreement, STEAG
Electronic Systems Semiconductor GmbH, a Gesellschaft mit
beschraenkter Haftung recently organized in connection with this
Agreement and existing under the laws of the Federal Republic of
Germany ("NEWCO"), and STEAG Electronic Systems Semiconductor,
Inc., a corporation to be organized in connection with this
Agreement under the laws of the State of Delaware ("U.S. Newco")
(collectively, the subsidiaries listed on EXHIBIT A, Newco and
U.S. Newco, the "STEAG SUBSIDIARIES").
B. Prior to the Closing (as defined below), STEAG will
contribute, assign or otherwise transfer (i) all of the capital
stock it owns directly in of each of those STEAG Subsidiaries
incorporated or organized in jurisdictions other than the U.S.A.
and Germany to Newco (collectively, all such subsidiaries of STEAG
that STEAG contributes or transfers to Newco, the "FOREIGN STEAG
Subsidiaries," and such directly-owned capital stock, the "FOREIGN
SUBSIDIARY SHARES"), after which STEAG will own 100% of the
capital stock of Newco, and (ii) all of the capital stock it owns
directly in each of those STEAG Subsidiaries incorporated in the
U.S.A. (the "U.S. STEAG SUBSIDIARIES," and such capital stock, the
"U.S. SUBSIDIARY SHARES") to U.S. Newco, after which STEAG will
own 100% of the capital stock of U.S. Newco.
C. To effect the Stock Acquisition, at the Closing, STEAG
will sell, assign and transfer to Xxxxxxx 100% of the issued and
outstanding capital stock of U.S. Newco, and will sell, assign and
transfer to Xxxxxxx (or, at Xxxxxxx'x election, to a wholly owned
subsidiary of Xxxxxxx) 100% of the issued and outstanding capital
stock of Newco and each of the other STEAG Subsidiaries organized
and existing under the laws of the Federal Republic of Germany
(the "DIRECT STEAG SUBSIDIARIES," and such capital stock, the
"DIRECT SUBSIDIARY SHARES"), and in consideration thereof Xxxxxxx
will issue and deliver to STEAG shares of Xxxxxxx'x common stock,
par value $0.001 per share (the "XXXXXXX COMMON Stock"), as
provided in Article II below (the "SHARE ISSUANCE"; together, the
Stock Acquisition and the Share Issuance are referred to herein as
the "STRATEGIC BUSINESS COMBINATION")."
3. CAPITALIZATION OF NEWCO AND U.S. NEWCO. The caption to Article
1 of the Agreement is hereby amended by adding at the end thereof the
words: "AND U.S. NEWCO".
4. TRANSFER OF FOREIGN SUBSIDIARY SHARES TO NEWCO. Section 1.1 is
hereby amended: (x) by adding at the end of the parenthetical in clause (b)
thereof the following: "and expenses incidental to its formation and the
transfer to it of the Foreign Subsidiary Shares"; and (y) by deleting from
clause (c) thereof the ending parenthetical and replacing it with the
following: "(the "NEWCO SHARES")".
5. TRANSFER OF U.S. SUBSIDIARY SHARES TO U.S. NEWCO. A new Section
1.2 is hereby added to the Agreement, the text of which shall be as
follows:
"1.2 TRANSFER OF U.S. SUBSIDIARY SHARES TO U.S. NEWCO.
Not later than five (5) days prior to the Closing, (a) STEAG will
form U.S. Newco, all of the shares of which shall be owned
initially and until the Closing by STEAG, and (b) STEAG will
transfer and deliver to U.S. Newco, by means of capital
contribution, all of the issued and outstanding shares of capital
stock of (i) STEAG RTP Systems, Inc., (ii) STEAG Electronic
Systems, Inc., and (iii) STEAG Cutek, Inc. The transactions
described in this Section 1.2 will be effected in such manner that
(a) U.S. Newco will own all of the outstanding shares of capital
stock of the U.S. STEAG Subsidiaries, (b) U.S. Newco will have no
other assets or liabilities (other than its initial $100 cash
capitalization and expenses incidental to its formation and the
transfer to it of the U.S. STEAG Subsidiaries), and (c) STEAG will
own 100% of the issued and outstanding capital stock of U.S. Newco
(the "U.S. NEWCO SHARES" and, together with the Newco Shares and
the Direct Subsidiary Shares, the "STEAG SHARES")."
6. PURCHASE AND SALE OF STOCK. Section 2.1 of the Agreement is
hereby amended: (x) by adding immediately prior to the period in the first
sentence thereof the following clause "; PROVIDED, that at the election of
Xxxxxxx, Xxxxxxx may designate an indirect, wholly owned subsidiary of
Xxxxxxx organized and existing under the laws of the Federal Republic of
Germany ("Xxxxxxx Germany"), by written notice to STEAG given at least 5
days prior to the Closing (which notice shall state the name and registered
seat of Xxxxxxx Germany and such other information as shall be necessary to
effect the transfers in accordance with German law), to accept the delivery
of the Newco Shares and the Direct Subsidiary Shares from STEAG, and
following such notice STEAG shall transfer, and deliver the Newco Shares
and the Direct Subsidiary Shares to Xxxxxxx Germany; PROVIDED, FURTHER,
that such election shall not relieve Xxxxxxx of its obligations under the
next sentence of this Section 2.1 or under any other provision of this
Agreement"; and (y) by deleting part (iii) of clause (a) thereof and
replacing it in its entirety by the following clause: "(iii) the Xxxxxxx
Secured Note referred to in Section 6.13(c) of this Agreement".
7. ASSUMED OBLIGATIONS OF STEAG. (a) Section 2.3 of the Agreement
is hereby amended by inserting between the first and second sentence
thereof the following two new sentences:
"Without limiting the foregoing, the assumption by Xxxxxxx of STEAG's
guarantee obligations (a) under currency exchange rate forward
contracts (subject to Section 6.13(d) below), (b) under the (Y)
500,000,000 credit line described in Section 6.21 below, and (c) for
deposits made under customer contracts (totaling as of the date
hereof, and not to exceed, DM 1,725,000 with respect to STEAG RTP
Systems GmbH and DM 3,947,000 with respect to STEAG MicroTech GmbH)
will be secured, as of the Closing Date with respect to the forward
contracts and the credit line, and as of the date which is 6 months
after the Closing Date with respect to the customer contracts, by one
or more stand-by letters of credit or bank guarantees from a mutually
acceptable bank in form and substance reasonably satisfactory to
STEAG, or such other form of security as may be reasonably acceptable
to STEAG; PROVIDED, that the obligation of Xxxxxxx to provide any such
stand-by letter of credit or bank guarantee shall terminate at such
time as Xxxxxxx obtains from the applicable third-party a full release
of STEAG's obligations, in form and substance reasonably satisfactory
to STEAG. To the extent that STEAG has not been released from any of
the assumed obligations as a matter of law, whether due to the absence
of a third party consent or otherwise, Xxxxxxx will indemnify STEAG in
accordance with Section 9.1(c).".
(b) Schedule 2.3 is hereby deleted and replaced in its
entirety by Schedule 2.3A attached to this Amendment, and all references in
the Agreement to Schedule 2.3 shall be deemed to refer to such Schedule
2.3A.
8. CLOSING. Section 2.4 of the Agreement is hereby amended by
adding immediately prior to the period in the first sentence thereof the
following clause: "; PROVIDED, that the parties may elect to specify that
the Closing will be deemed to take place at the time which is both 24:00
hours on December 31, 2000 and 0:00 on January 1, 2001".
9. ALLOCATION OF PURCHASE PRICE. Section 2.6 of the Agreement is
hereby amended by deleting the first sentence thereof and replacing it with
the following sentence:
"STEAG and Xxxxxxx agree to allocate the value of (i) the Newco
Shares among the Foreign STEAG Subsidiaries, (ii) the U.S. Newco
Shares among the U.S. STEAG Subsidiaries and (iii) the Xxxxxxx
Shares among the Direct STEAG Subsidiaries, Newco and U.S. Newco
for financial accounting and tax purposes in accordance with the
percentages set forth on the allocation schedule attached as
SCHEDULE 2.6 attached hereto.",
by deleting in the second sentence thereof the words "Xxxxxxx Shares and
Newco Shares" and replacing them with the words "Xxxxxxx Shares, Newco
Shares and U.S. Newco Shares", and by deleting the words "Direct Subsidiary
Shares" in the last sentence thereof and replacing them with the words
"Foreign Subsidiary Shares".
10. EARLY CONDITION SATISFACTION DATE. Section 2.8 of the
Agreement is hereby amended by deleting from clause (i) of the introductory
paragraph thereof the words: "prior to December 1, 2000," and by deleting
from the end of the second to last paragraph thereof the words "January 1,
2001" and replacing them with the words "24:00/0:00 hours on December 31,
2000/January 1, 2001".
11. POST-CLOSING ADJUSTMENTS. Section 2.9 of the Agreement is
hereby deleted and replaced in its entirety by the following:
"2.9 POST-CLOSING ADJUSTMENTS. The following adjustments will be
made with regard to the profits and losses of the STEAG Subsidiaries
following the Closing:
(a) As promptly as practicable, but in no event more than 60 days
following the Closing Date, Xxxxxxx shall prepare and deliver to STEAG
(i) audited income statements of STEAG RTP Systems GmbH and STEAG
MicroTech GmbH for the 10 months ended October 31, 2000 (the "October
Income Statements"), and (ii) audited income statements of STEAG RTP
Systems GmbH and STEAG MicroTech GmbH for the year ended December 31,
2000 (the "Year 2000 Income Statements" and, together with the October
Income Statements, the "Closing Financial Statements"). The Closing
Financial Statements shall be prepared in accordance with German GAAP
(as defined in Section 3.5) applied on a basis consistent with the
accounting principles used in preparation of the income statements for
STEAG RTP Systems GmbH and STEAG MicroTech GmbH referred to in Section
3.5(a), except, in the case of the October Income Statements, for such
differences as are appropriate for interim financial statements. The
Closing Financial Statements shall be audited by
PricewaterhouseCoopers ("PWC"), using procedures and methods
consistent with past practice; PROVIDED that Xxxxxxx'x auditors,
Xxxxxx Xxxxxxxx ("AA"), shall be permitted to participate in such
audits. STEAG will make available such STEAG employees who are
reasonably necessary for the preparation of the Closing Financial
Statements, using the books and records of the STEAG Subsidiaries, to
assist Xxxxxxx in preparing the Closing Financial Statements.
(b) Unless within 10 business days after its receipt of the
Closing Financial Statements, STEAG delivers to Xxxxxxx a detailed
written statement describing its objections to the October Income
Statements or the Year 2000 Income Statements, such Closing Financial
Statements shall be final and binding. If STEAG delivers such a
written objection statement to Xxxxxxx, the parties and their
respective auditors will use reasonable efforts to resolve any
disputes, but if a final resolution is not reached within 20 business
days after STEAG has submitted its objections, any remaining disputes
will be resolved by an internationally recognized firm of independent
certified public accountants (excluding PWC and AA) mutually selected
by Xxxxxxx and STEAG or, if they are unable to agree, by PWC and AA
(the "Reviewing Accountants"). The Reviewing Accountants shall be
instructed to resolve any matters in dispute as promptly as
practicable and, in any event, within 30 days after the dispute is
submitted to them. The determination of the Reviewing Accountants will
be final and binding. Xxxxxxx and STEAG will each pay one-half of the
fees and expenses of the Reviewing Accountants. Xxxxxxx and STEAG
shall cooperate with each other and the Reviewing Accountants in
connection with the matters contemplated by this Section 2.9,
including by furnishing such information and access to such books,
records (including accountants' work papers), personnel and properties
as may be reasonably requested.
(c) The parties agree that the estimated aggregate pre-tax profits
for STEAG RTP Systems GmbH and STEAG MicroTech GmbH for the year
ending December 31, 2000 are DM 30.7 million (the "Year 2000 Profit
Estimate"), based on the assumptions that (i) the aggregate pre-tax
profits for such companies for the 10 months ended October 31, 2000
were as set forth in Part A of Schedule 2.9, and (ii) the reserve
adjustment set forth in Part B of Schedule 2.9 will be made in fiscal
2000 after October 31, 2000. If the actual aggregate pre-tax profits
for STEAG RTP Systems GmbH and STEAG MicroTech GmbH for the 10 months
ended October 31, 2000, as set forth in the October Income Statements,
are greater than or less than the amount set forth in Part A of
Schedule 2.9, then the Year 2000 Profit Estimate shall be adjusted up
or down, as the case may be, by the amount of the difference. Any
dispute as to the need for such an adjustment or the amount thereof
shall be resolved in the manner provided in Section 2.9(b).
(d) Within 5 business days after the Closing Financial Statements
(and any adjustment to the Year 2000 Profit Estimate) become final, in
accordance with the Profit Transfer Contracts (as defined in Section
3.5(c)), Xxxxxxx will cause each of STEAG RTP Systems GmbH and STEAG
MicroTech GmbH to transfer its profit for fiscal year 2000 to STEAG.
If the aggregate payments to STEAG pursuant to the preceding sentence
are less than the Year 2000 Profit Estimate (as adjusted, if
necessary), then, concurrently with the profit payments required by
the preceding sentence, Xxxxxxx will make a cash payment, by wire
transfer to an account designated in writing by STEAG, equal to the
difference between such aggregate profit payments and the Year 2000
Profit Estimate. If the aggregate payments to STEAG pursuant to the
first sentence of this paragraph are more than the Year 2000 Profit
Estimate (as adjusted, if necessary), then, within 10 business days
after receipt of such payments, STEAG will make a cash payment, by
wire transfer to an account designated in writing by Xxxxxxx, equal to
the difference between such aggregate profit payments and the Year
2000 Profit Estimate."
For the avoidance of doubt, neither party shall be required to
make any payment based on the aggregate cash balances of the combined STEAG
Subsidiaries.
12. TRANSFER OF U.S. STEAG SUBSIDIARIES TO U.S. NEWCO. Section
2.10 of the Agreement is hereby deleted in its entirety.
13. DUE INCORPORATION. Section 3.1(b) of the Agreement is hereby
amended by deleting the last sentence thereof and replacing it with the
following sentence:
"At the Closing, (i) Xxxxxxx will receive good and valid title to
shares or other units of capital stock representing one hundred
percent (100%) of the equity ownership interest of U.S. Newco, Newco,
and each Direct STEAG Subsidiary; (ii) U.S. Newco will hold good and
valid title to each U.S. STEAG Subsidiary; and (iii) Newco will hold
good and valid title to each Foreign STEAG Subsidiary, free and clear
of any Encumbrances."
14. NON-CONTRAVENTION/CONSENTS AND APPROVALS. Subsection (iii) of
Section 3.3(b) of the Agreement is hereby amended by deleting the words
"Direct Subsidiary Shares" and replacing them with the words "Foreign
Subsidiary Shares".
15. CONDUCT OF BUSINESS OF STEAG SUBSIDIARIES FOLLOWING THE STEAG
EARLY CONDITION SATISFACTION DATE. A new Section 5.5 is hereby added to the
Agreement, the text of which shall be as follows:
"5.5 CONDUCT OF BUSINESS OF STEAG SUBSIDIARIES FOLLOWING THE STEAG
EARLY CONDITION SATISFACTION Date. During the period between the STEAG
Early Condition Satisfaction Date and the Closing, STEAG shall use its
reasonable efforts to cause the STEAG Subsidiaries to comply with
policies, procedures and directives of the proposed management team
designated by the Integration Committee (as defined in Section 6.3 of
this Agreement). Notwithstanding the foregoing, neither STEAG, any
STEAG Subsidiary nor any officer, director or employee of any STEAG
Subsidiary shall be required to take any action pursuant to the
preceding sentence if: (a) such action would breach, violate or
conflict with any of STEAG's representations, warranties, covenants or
obligations under any other provision of this Agreement or the
transactions contemplated hereby; (b) such action would cause STEAG,
any STEAG Subsidiary or any of their respective officers, directors or
employees to violate any law, applicable regulation or binding
agreement; (c) such action would require the consent of Xxxxxxx under
Section 5.1 of this Agreement, unless such action has received the
prior written consent of STEAG as well as Xxxxxxx (for the avoidance
of doubt, but without limiting the foregoing, any action to close down
any facility or business unit shall require such consent); or (d) such
action would reasonably be expected to result in expense, loss or
damage to STEAG or would otherwise adversely affect STEAG or any of
its officers or directors (other than by reducing the profits or net
assets of any of the STEAG SUBSIDIARIES). Notwithstanding the previous
sentence, the parties agree that, following the STEAG Early Condition
Satisfaction Date, the proposed management team designated by the
Integration Committee shall be permitted, without any further consent,
to cause the STEAG Subsidiaries to (x) increase reserve amounts, (y)
take asset write-offs and (z) make inventory valuation changes.
Nothing contained in this Section 5.5 shall restrict or limit STEAG's
right to receive such reports and information from the STEAG
Subsidiaries as are customary or as otherwise requested by STEAG."
16. STOCK OPTION GRANTS. Section 6.11 of the Agreement is hereby
amended by adding after the last sentence thereof the following sentence:
"Nowithstanding the foregoing, Xxxxxxx shall not be required to grant
options to employees of STEAG Subsidiaries in Japan, Korea or the United
Kingdom to the extent such grants would violate applicable laws in such
countries; PROVIDED, that Xxxxxxx shall use its reasonable efforts to grant
such options in compliance with applicable local law as soon as practicable
following the closing; and PROVIDED, FURTHER, that upon such grants being
made the respective vesting period for such grantee shall begin as of the
Closing Date, notwithstanding the date of option grant."
17. STEAG INTERCOMPANY INDEBTEDNESS; FORWARD CONTRACTS. STEAG
hereby represents and warrants that: (x) in accordance with Section 6.13(b)
of the Agreement, as of June 30, 2000, STEAG caused all indebtedness of any
of the STEAG Subsidiaries to STEAG or any of its affiliates (other than
indebtedness of one STEAG Subsidiary to another, and other than Excluded
Indebtedness), in aggregate principal amount of approximately $100,974,000,
to be cancelled and converted to equity without any payment on the part of
such STEAG Subsidiaries; (y) subsequent to such cancellation of
indebtedness STEAG extended additional loans to the STEAG Subsidiaries, the
aggregate principal amount of which was approximately $21,726,906 as of
November 30, 2000; and (z) as of November 30, 2000, the STEAG Subsidiaries
had aggregate cash in an amount not less than $20 million. New subsections
(c) and (d) are hereby added to Section 6.13 of the Agreement, the text of
which shall be as follows:
"(c) Notwithstanding anything to the contrary in subsection (b) of
this Section 6.13, in Section 5.1((h), or in any other provision of
this Agreement, (i) from and after December 15, 2000, STEAG shall not
be required to cancel any indebtedness of any STEAG Subsidiary to
STEAG; (ii) STEAG will not loan any additional amounts to any STEAG
Subsidiary following the date which is 10 days prior to the expected
Closing Date without the prior written consent of Xxxxxxx; PROVIDED,
that if the expected Closing Date is postponed, STEAG shall be
entitled to loan additional amounts until the date which is 10 days
prior to such later expected Closing Date; (iii) from and after
December 15, 2000, STEAG will not cause or permit any STEAG Subsidiary
to make any cash payments to STEAG (other than in respect of Excluded
Indebtedness described in clauses (i), (iii) or (v) of the second
sentence of Section 6.13(b)); and (iv) at the Closing, STEAG will
accept as payment for all remaining indebtedness of the STEAG
Subsidiaries to STEAG (other than Excluded Indebtedness) a secured
promissory note from Xxxxxxx, or, at the request of Xxxxxxx, will
assign all remaining indebtedness of the STEAG Subsidiaries to STEAG
(other than Excluded Indebtedness) to a wholly owned subsidiary of
Xxxxxxx (to be designated in a written notice from Xxxxxxx to STEAG at
least 2 days prior to the Closing), and such assignment by STEAG will
be made in exchange for a secured promissory note from Xxxxxxx. The
secured promissory note referred to in the immediately preceding
sentence will be equal in principal amount to the aggregate amount of
intercompany indebtedness cancelled or assigned by STEAG (to be set
forth in a notice from STEAG to Xxxxxxx at least 2 days prior to the
Closing), and will be in the form of Exhibit F and secured by a
stand-by letter of credit or bank guarantee from a mutually acceptable
bank in form and substance reasonably satisfactory to STEAG (the
"Xxxxxxx Secured Note").
(d) Between December 15, 2000 and the Closing, STEAG will cancel
all currency exchange rate forward contracts listed on Schedule 2.3,
the cancellation of which, in the aggregate, would not result in a
loss, as of the time of cancellation, to STEAG or any STEAG
Subsidiary. For the avoidance of doubt, in determining which forward
contracts to cancel pursuant to the preceding sentence, STEAG shall
not be required to take into account any potential exchange rate gain
or loss on the underlying accounts receivable. In accordance with
Section 2.3 of this Agreement, Xxxxxxx will assume and become solely
responsible for the guarantee obligations of STEAG under any forward
contracts listed on Schedule 2.3 which are not so cancelled as of the
Closing."
18. ACTIONS OF DIRECTORS OF STEAG SUBSIDIARIES. A new Section 6.19
is hereby added to the Agreement, the text of which shall be as follows:
"6.19 ACTIONS OF DIRECTORS OF STEAG SUBSIDIARIES. Upon the
availability of audited financial statements as of December 31, 2000,
for the STEAG Subsidiaries other than Newco and U.S. Newco, Xxxxxxx
will promptly review such financial statements. As soon as practicable
after the review of such audited financial statements in the case of
the STEAG Subsidiaries other than Newco and U.S. Newco, and not later
than 30 days after the Closing in the case of Newco and U.S. Newco,
except with respect to fraud or intentional violations of law, Xxxxxxx
will approve, or cause the applicable holding company to approve, to
the fullest extent permitted under applicable law, the prior actions
of the officers and directors of the STEAG Subsidiaries in its
capacity as sole shareholder of such subsidiaries. Except with the
prior written consent of STEAG, Xxxxxxx further agrees not to, and to
cause its applicable direct and indirect subsidiaries not to, commence
or institute any claim, action or proceeding against any such officers
and directors with respect to actions taken prior to the Closing by
such persons in their capacity as officers or directors of any of the
STEAG Subsidiaries (other than for fraud or intentional violations of
law)."
19. COOPERATION ON TAX MATTERS. A new Section 6.20 is hereby added
to the Agreement, the text of which shall be as follows:
"6.20 COOPERATION ON TAX MATTERS. Following the Closing, Xxxxxxx
and STEAG shall each promptly notify the other in writing upon receipt
by STEAG, Xxxxxxx, any of their Affiliates or any of the STEAG
Subsidiaries of written notice of any pending or threatened federal,
state, local or foreign tax audits, claims for taxes or assessments
that may affect the tax liabilities of any of the STEAG Subsidiaries
with respect to any tax period ending on or before the Closing Date.
Xxxxxxx will (a) provide STEAG with copies of all correspondence
received from any tax authority with respect to such tax periods and
(b) will consult with STEAG with respect to, and allow STEAG a
reasonable opportunity to comment on, any response by Xxxxxxx or any
STEAG Subsidiary. STEAG will assist Xxxxxxx and any STEAG Subsidiary
with respect to any such matter and will cooperate with any request
for information. Nothing contained in this Section 6.20 shall be
deemed to create an obligation by STEAG to pay any Taxes on behalf of
any STEAG Subsidiary. For a period of six years following the Closing
Date, Xxxxxxx and STEAG will each provide to the other, upon request,
access during normal business hours to all Tax records relating to the
STEAG Subsidiaries."
20. JAPANESE LOAN GUARANTY. A new Section 6.21 is hereby added to
the Agreement, the text of which shall be as follows:
"6.21 JAPANESE LOAN GUARANTY. Each of Xxxxxxx and STEAG will use
their reasonable efforts to have STEAG released from its guarantee
obligations under the (Y)500,000,000 credit line from Westdeutsche
Landesbank Girozentrale Tokyo Branch, Japan to STEAG Electronic
Systems Japan Co., Ltd. (which obligations Xxxxxxx will assume
pursuant to Section 2.3 of this Agreement). In the event that STEAG is
not so released within 18 months after the Closing, Xxxxxxx will cause
such credit line to be repaid or refinanced without any continuing
obligation on the part of STEAG."
21. INSURANCE. A new Section 6.22 is hereby added to the
Agreement, the text of which shall be as follows:
"6.22 INSURANCE. Regardless whether the Closing or the STEAG Early
Condition Satisfaction Date has occurred, as from January 1, 2001,
Xxxxxxx shall provide or cause to be provided, at its own expense,
insurance under Xxxxxxx'x insurance policies listed on Schedule 6.22
hereto with respect to the STEAG Subsidiaries (other than the STEAG
Subsidiaries located in Asia); PROVIDED, that Xxxxxxx will not be
providing the following types of insurance: (a) environmental
liability insurance; (b) legal expense insurance; (c) personal
accident insurance; (d) travel insurance abroad; (e) automobile
insurance; (f) luggage insurance; and (g) director and officer
insurance. Until the Closing Date, such insurance policies shall name
STEAG as an additional insured party. In the event this Agreement is
thereafter terminated, Xxxxxxx shall continue such insurance coverage
until the earlier of (a) the date STEAG obtains replacement insurance
coverage or (b) 60 days following the date of termination, following
which STEAG shall reimburse Xxxxxxx for its allocated share of
Xxxxxxx'x insurance costs with respect to the STEAG Subsidiaries."
22. TRANSITION SERVICES AGREEMENTS. A new Section 6.23 is hereby
added to the Agreement, the text of which shall be as follows:
"6.23. TRANSITION SERVICES AGREEMENT. The parties agree that the
Transition Services Agreements to be executed and delivered at the
Closing, including the supply agreement between STEAG MicroTech GmbH
and STEAG Electronic Systems spol. s r.o. shall be true and correct
German language translations of substantially the English language
forms initialed and dated by STEAG and Xxxxxxx on December 15, 2000."
23. CONDITIONS TO EACH PARTY'S OBLIGATIONS. Section 7.1(f) of the
Agreement is hereby amended by deleting all of the language following the
comma and replacing it with the following: "of the outstanding Foreign
Subsidiary Shares".
24. CONDITIONS TO OBLIGATIONS OF STEAG. A new subsection (l) is
hereby added to Section 7.3 of the Agreement, the text of which shall be as
follows:
"(l) XXXXXXX SECURED NOTE; SECURITY FOR ASSUMED GUARANTEE. STEAG
shall receive at the Closing (i) the Xxxxxxx Secured Note referred to
in Section 6.13(c), (ii) the stand-by letter of credit or bank
guarantee securing the Xxxxxxx Secured Note, and (iii) the stand-by
letter(s) of credit or bank guarantee(s) securing Xxxxxxx'x
obligations with respect to forward contracts and the (Y) 500,000,000
credit line pursuant to Section 2.3."
25. TERMINATION. Section 8.1(j) of the Agreement is hereby deleted
in its entirety.
26. INDEMNIFICATION. A new subsection (c) is hereby added to
Section 9.1 of the Agreement, the text of which shall be as follows:
"(c) Xxxxxxx shall indemnify and hold harmless the STEAG
Indemnified Persons from and against all Damages arising out of (i)
the failure of STEAG RTP Systems GmbH and STEAG MicroTech GmbH to
discharge after the Closing their obligations to third parties to the
extent of any obligation of STEAG under ss.303 AktG (German Stock
Corporation Act), as a result of the termination of the Profit
Transfer Contracts, to guarantee such obligations up until the date of
publication or deemed publication of the registration of the
termination of the Profit Transfer Contracts with the German
Commercial Register, and (ii) the obligations assumed by Xxxxxxx
pursuant to Section 2.3 of this Agreement."
27. NOTICES. The address for copies of notices to STEAG under
Section 10.1(b) of the Agreement is hereby deleted and replaced by the
following:
"Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000"
28. EXPENSES. Section 10.8 of the Agreement is hereby amended by
adding after the second sentence thereof the following:
"In order to implement the preceding sentence, within 60 days
following the Closing, STEAG will deliver to Xxxxxxx an accounting of
all costs and expenses incurred by STEAG in connection with this
Agreement and the transactions contemplated hereby, including legal,
accounting and investment banking fees, together with true and
complete copies of all invoices relating to such costs and expenses.
None of such costs or expenses have been paid by or allocated to the
STEAG Subsidiaries prior to the Closing. Xxxxxxx will, or will cause
one or more of the STEAG Subsidiaries to, reimburse STEAG for 50% of
the aggregate costs and expenses shown on such accounting within 10
days of Xxxxxxx'x receipt of such accounting."
29. GERMAN COUNTERPART AMENDMENT. As soon as practicable after the
date of this Amendment, and in any event prior to the Closing, Xxxxxxx and
STEAG shall execute and deliver an amendment to the German law-governed
version of the Agreement, in such form as may be necessary or appropriate
to effectuate the purposes of this Amendment and is otherwise mutually
acceptable to Xxxxxxx and STEAG, which document shall be notarized in
accordance with German law or as otherwise agreed among the parties.
30. GENERAL PROVISIONS. (a) Except as expressly amended or
modified by this Amendment, the Agreement remains in full force and effect.
(b) This Amendment may be executed in one or more counterparts,
all of which shall be considered one and the same instrument and shall
become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(c) In the event that any provision of this Amendment, or the
application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void, or unenforceable, the remainder of this
Amendment will continue in full force and effect nd the application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Amendment
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business, and other purposes of such void or
unenforceable provision.
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IN WITNESS WHEREOF, STEAG and Xxxxxxx have caused this Amendment
to be executed and delivered by each of them or their respective officers
thereunto duly authorized, all as of the date first written above.
STEAG ELECTRONIC SYSTEMS AG
By:/s/ Xxxxx Xxxxxxxxxx
---------------------------------
Xx. Xxxxx Xxxxxxxxxx
General Counsel
By:/s/ Xxxx Xxxxxx
---------------------------------
Xx. Xxxx Xxxxxx
Chief Financial Officer
XXXXXXX TECHNOLOGY, INC.
By:/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, Chairman
and Chief Executive Officer
