EXHIBIT 2.3
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made this 26th day of May, 1999, between Asyst
Technologies, Inc. (the "Company"), a California corporation, and the
purchasers, severally and not jointly, whose names are set forth on the
signature page hereof (each a "Purchaser" and collectively the "Purchasers").
In Consideration of the mutual covenants contained in this Agreement, the
Company and each of the Purchasers, severally and not jointly, agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement:
"Closing" means the execution and delivery of the Share Certificates (as
that term is defined below) and the receipt of the Purchasers' wire transfer on
the Closing Date.
"Closing Date" means May 26, 1999.
"Common Stock" means the Common Stock of the Company, no par value.
"Share Certificate" means the duly executed certificate representing the
number of shares of Common Stock being purchased by each Purchaser hereunder or,
at the Purchasers' election, electronic equivalents customary for institutional
and investment company purchasers.
"Shares" means the aggregate number of shares of Common Stock being
purchased hereunder.
Section 2. Authorization and Execution of Agreement.
2.1 Agreement to Purchase the Common Stock. On the Closing Date, subject
to the terms and conditions of this Agreement, the Company will issue and sell
to each Purchaser, severally and not jointly, and, in reliance upon the
representations and warranties of the Company contained in this Agreement, each
Purchaser, severally and not jointly, will purchase from the Company the number
of shares of Common Stock for the aggregate purchase price set forth opposite
each Purchaser's name on Schedule 1 hereto.
2.2 Closing. The Closing shall be held on the Closing Date.
2.3 Payment and Delivery. The Closing shall take place at the office of
Cooley Godward llp in Palo Alto, California. At the Closing, the following shall
occur:
(a) Each Purchaser shall remit by wire transfer the purchase price
for the Shares to be purchased by such Purchaser, to the Company pursuant to
wire transfer instructions to be delivered by the Company to the Purchaser at
least one day prior to the Closing.
(b) The Company shall deliver the Share Certificates.
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2.4 Termination of Agreement. If the Closing has not occurred
within 10 days from the date hereof, then this Agreement shall terminate. In the
event of termination, no party shall have any further responsibility or
liability to any other party.
Section 3. General Representations and Warranties of the Company. The
Company hereby represents and warrants to, and covenants with, each Purchaser
that the following are and will be true and correct as of the date hereof and
as of the Closing Date.
3.1 Organization; Qualification. The Company and each of its
subsidiaries is a corporation duly organized and validly existing under the laws
of the State of California (in the case of the Company) or other state of
incorporation and is in good standing under such laws. The Company and each of
its subsidiaries has all requisite corporate power and authority to own, lease
and operate its properties and assets, and to carry on its business as presently
conducted. The Company and each of its subsidiaries is qualified to do business
as a foreign corporation in each jurisdiction in which the ownership of its
property or the nature of its business requires such qualification, except where
failure to so qualify would not have a material adverse effect on the Company
and its subsidiaries taken as a whole.
3.2 Capitalization. The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock, no par value, of which 11,536,075
shares were issued and outstanding on April 30, 1999, and 4,000,000 shares of
Preferred Stock, none of which are issued and outstanding as of the date hereof.
All issued and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable.
3.3 Authorization. The Company has all corporate right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All corporate action on the part of the Company, its
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement by the Company, the authorization, sale,
issuance and delivery of the Common Stock and the performance of the Company's
obligations hereunder has been taken. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy as they may apply to the
indemnification provisions set forth in Section 7.3 of this Agreement. Upon
issuance and delivery of the Share Certificates, the Shares will be validly
issued, fully paid and nonassessable and will be free of any liens or
encumbrances. The execution and delivery of this Agreement, and the issuance of
the Shares will not give rise to any preemptive right or right of first refusal
or right of participation on behalf of any person.
3.4 No Conflict. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both), or give rise to a right of termination, cancellation
or acceleration of any obligation or to a loss of material benefit, under, any
provision of the Articles of Incorporation or Bylaws of the Company or any
material mortgage, indenture, lease or other material agreement or instrument,
permit, concession,
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franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company and its subsidiaries or their properties or
assets.
3.5 Accuracy of Reports and Information. The Company's Common Stock
is registered pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). All reports required to be filed by the Company
with the Securities and Exchange Commission ("SEC") during the period from March
31, 1998 to the date of this Agreement pursuant to Section 13(a) or 15(d) of the
Exchange Act, including the Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1998 (the "Form 10-K"), have been duly and timely filed,
were in compliance with the requirements of their respective forms, were
complete and correct in all material respects as of the dates at which the
information was furnished and as of their respective dates did not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. Copies of the Form 10-K and the Form 10-Qs
required to be filed by the Company with the SEC during the period from March
31, 1998 to the date of this Agreement pursuant to Section 13(a) or 15(d) of the
Exchange Act (the "SEC Reports") have been furnished to the Purchasers. The
Company is an issuer eligible to use Form S-3 under the Securities Act of 1933
(the "Securities Act") for the registration of the resale of the Registrable
Shares (as that term is defined below in Section 7.1 (c)).
3.6 Governmental Consent. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of the Agreement, or the consummation of any other transaction
contemplated hereby, except for any post-closing filings as may be required
under applicable federal or state securities laws, which will be timely filed
within the applicable periods therefor and except for the filing with the SEC of
a registration statement on Form S-3 for the purpose of registering the Common
Stock.
3.7 Securities Act Exemption. Assuming and relying in part on the
truth and accuracy of Purchasers' representations and warranties in Section 4 of
this Agreement, the offer, sale and issuance of the Shares is exempt from
registration under the Securities Act and state securities laws.
Section 4. Representations, Warranties and Covenants of the Purchasers.
Each of the Purchasers represents and warrants to, and covenants with, the
Company that the following are and will be, true and correct as of the date
hereof and as of the Closing Date.
4.1 Authority. Such Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
Purchaser and constitutes a legal, valid and binding obligation of such
Purchaser enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy as they may apply to the
indemnification provisions set forth in Section 7.3 of this Agreement.
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4.2 Investment Experience; Investment Intent, etc. (i) The
Purchaser, taking into account the personnel and resources it can practically
bring to bear on the purchase of the Shares contemplated hereby, is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares; (ii) the Purchaser is
acquiring the number of Shares to be purchased by it in the ordinary course of
its business and for its own account solely for investment and with no present
intention of distributing any of such Shares, and no arrangement or
understanding exists with any other person regarding the distribution of such
Shares; (iii) the Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act, and the rules and regulations promulgated thereunder;
and (iv) the Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act.
4.3 Purchaser Understanding and Agreements. The Purchaser
acknowledges and agrees that it will acquire the Shares being purchased by it in
transactions not involving a public offering and that such Shares are subject to
certain restrictions as to resale under the federal and state securities laws.
The Purchaser agrees and understands that until satisfaction of the conditions
set forth in Section 2(c), stop transfer instructions will be given to the
transfer agent for the Shares and each Share Certificate, and each certificate
delivered on transfer of or in substitution for any such certificate, shall bear
a legend in substantially the following form:
The shares represented by this certificate are subject to restrictions
imposed by the Securities Act of 1933, as amended, and applicable state
securities law. The shares may not be sold or transferred in the absence
of registration or an exemption therefrom under the Securities Act of 1933
and any applicable state securities laws.
The Purchaser agrees that it will not sell, pledge, assign, transfer or
otherwise dispose (collectively, "Transfer") of any of the Shares unless the
Transfer will be made pursuant to an exemption from the registration
requirements of the Securities Act or pursuant to an effective registration
statement under the Securities Act and pursuant to an exemption from any
applicable state securities laws or an effective registration or other
qualification under any applicable state securities laws. The Purchaser
understands that exemptions from such registration requirements are limited.
The Company is under no obligation to register the Shares except as provided in
Section 7.
4.4 Transfer of Shares after Registration. The Purchaser hereby
covenants with the Company not to make any sale of the Shares after registration
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied. The Purchaser acknowledges that there may be
times when the Company must suspend the use of the prospectus forming a part of
the Registration Statement (as defined below) until such time as an amendment to
the Registration Statement has been filed by the Company and declared effective
by the SEC, or until such time as the Company has filed an appropriate report
with the SEC pursuant to the Exchange Act. The Purchaser hereby covenants that
it will not sell any Shares pursuant to said prospectus during the period
commencing at the time at which the Company
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gives the Purchaser notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser notice that the Purchaser may
thereafter effect sales pursuant to said prospectus. Such period shall in no
event exceed 30 business days in any 12 month period.
4.5 No Legal, Tax or Investment Advice. The Purchaser understands
that nothing in this Agreement or any other materials presented to the Purchaser
in connection with the purchase of the Common Stock constitutes legal, tax or
investment advice. The Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Common Stock.
Section 5. Conditions to Obligations of Purchaser at Closing Date. The
obligation of each Purchaser to purchase the Common Stock is subject to the
fulfillment on or prior to the Closing Date of the following conditions, any or
all of which may be waived in writing at the option of all Purchasers:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 shall be true and correct when made
and shall be true and correct in all material respects on the Closing Date with
the same force and effect as if they had been made on and as of said date.
5.2 Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to such Closing
Date, shall have been performed or complied with in all material respects.
5.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
5.4 No Law Prohibiting or Restricting Such Sale of Shares. There
shall not be in effect any law, rule or regulation prohibiting or restricting
sale of the Shares, or requiring any consent or approval of any person which
shall not have been obtained to issue the Shares.
5.5 Legal Opinion. Each Purchaser shall have received a legal
opinion of Cooley Godward LLP, dated the Closing Date, to the effects set forth
in Exhibit A.
Section 6. Conditions to Obligations of Company at the Closing Date. The
Company's obligation to execute and deliver the Share Certificates at the
Closing is subject to the fulfillment on or prior to the Closing Date of the
following conditions, any or all of which may be waived in writing at the option
of the Company:
6.1 Representations and Warranties Correct. The representations and
warranties made by the Purchasers in Section 4 hereof shall be true and correct
when made, and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date.
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Section 7. Registration of the Shares; Compliance with the Securities Act.
7.1 Definitions. For the purpose of this Section 7 the following
terms shall have the following respective meanings:
(a) the term "Registrable Shares" shall mean the shares of
Common Stock issued pursuant to this Agreement;
(b) the term "Registration Statement" shall mean any
registration statement required to be filed by Section 7.2 below, and shall
include any preliminary prospectus, final prospectus, exhibit or amendment
included in or relating to such Registration Statement; and
(c) the term "Untrue Statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
7.2 Registration Procedures and Expenses. The Company shall within
90 days following the Closing Date:
(a) prepare and file with the SEC an S-3 registration
statement under the Securities Act (providing for shelf registration of the
Common Stock under SEC Rule 415) on a form which is appropriate to register all
of the Registrable Shares;
(b) use its best efforts, subject to receipt of necessary
information from the Purchasers, to cause such Registration Statement to become
effective as promptly after filing as practicable and thereafter to use its best
efforts to keep such Registration Statement continuously effective for the
resale of the Registrable Shares until all such Registrable Shares are sold;
(c) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
until termination of such obligation as provided in Section 7.6 below;
(d) furnish to each Purchaser (and to each underwriter, if
any, of such Common Stock) such number of copies of prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Purchasers may reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Registrable Shares by the Purchasers;
(e) prepare and file such documents as may be required of the
Company for normal securities law clearance for the resale of the Registrable
Shares in which states of the United States as may be reasonably requested by
each Purchaser provided, however, that the Company shall not be required in
connection with this paragraph (e) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
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(f) advise each Purchaser promptly:
(i) of any request by the SEC for amendments to the
Registration Statement or amendments to the prospectus or for additional
information relating thereto:
(ii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Registrable Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes; and
(iii) of the existence of any fact and the happening of
any event that makes any statement of a material fact made in the Registration
Statement, the prospectus, and amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the prospectus in order
to make the statements therein not misleading;
(g) upon the occurrence of any event described in Section
7.2(f)(ii) above, use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of any such Registration
Statement or the lifting of such suspension;
(h) use its best efforts to cause all Registrable Shares to be
listed on each securities exchange or automated interdealer quotation system, if
any, on which equity securities by the Company are then listed or quoted;
(i) bear all expenses in connection with the procedures in
paragraphs (a) through (g) of this Section 7.2 and the registration of the
Registrable Shares on such Registration Statement and the satisfaction of the
blue sky laws of such states, other than any (i) fees and expenses, if any, of
counsel or other advisors to the Purchasers and (ii) expenses relating to the
sale of the Registrable Shares by the Purchasers, including broker's commission,
discounts or fees and transfer taxes; and
(j) on or before the effective date of such Registration
Statement provide the transfer agent of the Company with printed share
certificates for the Registrable Shares.
7.3 Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Purchaser (and each of its officers, directors, partners or persons, if any, who
controls such Purchaser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) from and against any losses, claims, damages
or liabilities to which such Purchaser (and each of officers, directors,
partners or persons, if any, who controls such purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any Untrue Statement on the effective date thereof, or
arise out of any failure by the Company to fulfill any undertaking included in
the Registration Statement, and the Company will, as
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incurred, reimburse such Purchaser (and each of its officers, directors,
panniers or persons, if any, who controls such Purchaser within the meaning of
Section 5 of the Securities Act) for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon, an Untrue Statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Purchaser specifically for use in the
Registration Statement.
(b) Each Purchaser, severally and not jointly, agrees to indemnify
and hold harmless the Company (and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each officer of the Company who signs the Registration Statement
and each director of the Company), from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement with respect to such Purchaser on the effective date thereof, if, and
to the extent, such Untrue Statement was made in reliance upon and in conformity
with written information furnished by or on behalf of such Purchaser
specifically for use in the Registration Statement, and such Purchaser will, as
incurred, reimburse the Company (and each of its officers, directors or
controlling persons) for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided that in no event shall any indemnity by a Purchaser under this
Section 7.3 exceed the net proceeds received by such Purchaser from the sale of
the Registrable Shares by such Registration Statement.
(c) Promptly after receipt by any indemnified person of a notice of
a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent that it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate in the reasonable judgment of the indemnified person for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
(d) If after proper notice of a claim or the commencement of any
action against the indemnified party, the indemnifying party does not choose to
participate, then
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the indemnified party shall defend itself at its own cost and expense until
there is an adjudication at which point the indemnifying party shall then
reimburse the indemnified party for its costs and expenses.
(e) If the indemnification provided for in this Section 7.3 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged Untrue Statement of material fact or the omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission; provided, that in no event shall any contribution by a Purchaser
hereunder exceed the net proceeds received by such Purchaser from the sale of
the Registrable Shares covered by the Registration Statement. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
7.4 Prospectus Delivery. Each Purchaser hereby covenants with the Company
to comply with the prospectus delivery requirements in connection with the
resale of the Registrable Shares.
7.5 Assignability of Registration Rights. The registration rights set
forth in this Section 7 are not assignable other than to an affiliate of a
Purchaser.
7.6 Termination of Obligations. The obligations of the Company pursuant to
Sections 7.2 hereof shall cease and terminate upon the earlier to occur of (i)
such time as all of the Registrable Shares have been re-sold, or (ii) such time
as all of the Registrable Shares may be re-sold pursuant to Rule 144(k) of the
Securities Act.
7.7 Reporting Requirements.
(a) With a view to making available the benefits of certain rules and
regulations of the SEC that may at any time permit the sale of the Shares to the
public without registration or a registration on SEC Form S-3, the Company
agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
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(iii) so long as any of the Purchasers own Registrable
Securities, to furnish to the Purchasers forthwith upon request (1) a written
statement by the Company as to whether it complies with the reporting
requirements of said Rule 144, the Securities Act and Exchange Act, or whether
it qualifies as a registrant whose securities may be resold pursuant to SEC Form
S-3, (2) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company, and (3) such other
information as may be reasonably requested in availing the Selling Shareholders
of any rule or regulation of the SEC that would permit the selling of the
Registrable Shares without registration.
Section 8. Legal Fees and Expenses. Each of the parties shall pay its own
fees and expenses in connection with this Agreement and the transactions
contemplated hereby, except as provided in Section 7 with respect to the
Registrable Shares.
Section 9. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be telecopied or mailed by
first class registered or certified airmail (return receipt requested), postage
prepaid, and shall be deemed given when so telecopied or, if mailed, when
received:
(a) if to the Company, to
Asyst Technologies, Inc.
48761 Kato Road
Fremont, CA 94538
Attn: Douglas McCutcheon
Telecopier No.: (510) 661-5151
or to such other person at such other place as the Company shall designate
to the Purchaser in writing;
(b) if to the Purchasers, to the addresses set forth on the
signature page hereto or at such other address or addresses as may have been
furnished to the Company in writing; or
(c) if to any transferee or transferees of a Purchaser, at
such address or addresses as shall have been furnished to the Company at the
time of the transfer or transfers, or at such other address or addresses as may
have been furnished by such transferee or transferees to the Company in writing.
Section 10. Miscellaneous.
10.1 Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement or any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
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10.2 Amendments. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company and by each
Purchaser.
10.3 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
10.4 Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
10.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other party.
10.7 Publicity. No party shall issue any press releases or
otherwise make any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of the other
party, except as may be required by applicable law or regulation.
10.8 Survival. The representations and warranties in this Agreement
shall survive the Closing.
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In Witness Whereof, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives the day and year first above
written.
Asyst Technologies, Inc.
By: /s/ Douglas J. McCutcheon
-------------------------
Title:
-------------------------
Douglas J. McCutcheon
Senior Vice President
Chief Financial Officer
Purchasers:
/s/MAS Funds Small Cap Value Portfolio
/s/Van Kampen American Value Funds
/s/Couts Fund Managers Limited
/s/Seligman Communications and
Information Fund, Inc.
/s/Hermes Advisors, Inc.
/s/Mentor Investment Advisors, LLC
/s/Lighthouse Partners USA, LP
/s/Pharos Fund Limited
/s/Watson Investment Partners L.P.
/s/Lindemann Capital
/s/The Lincoln Fund, L.P.
Schedule 1
- ------------------------------------------------------------------------------------------------------
Number of Shares Per Share Aggregate
Name of Purchaser to Be Purchased Purchase Price Purchase Price
- ------------------------------------------------------------------------------------------------------
MAS Funds Small Cap Value 142,200 $18.00 $2,5559,600
Portfolio
- ------------------------------------------------------------------------------------------------------
Van Kampen American Value 106,000 $18.00 $ 1,908,000
Funds
- ------------------------------------------------------------------------------------------------------
Couts Fund Managers Limited 1,800 $18.00 $ 32,400
- ------------------------------------------------------------------------------------------------------
Seligman Communications and 100,000 $18.00 $ 1,800,000
Information Fund, Inc.
- ------------------------------------------------------------------------------------------------------
Hermes Advisors, Inc. 90,000 $18.00 $ 1,620,000
- ------------------------------------------------------------------------------------------------------
Mentor Investment Advisors, 70,000 $18.00 $ 1,260,000
LLC
- ------------------------------------------------------------------------------------------------------
Lighthouse Partners USA, LP 10,000 $18.00 $ 180,000
- ------------------------------------------------------------------------------------------------------
Pharos Fund Limited 30,000 $18.00 $ 540,000
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Watson Investment Partners 25,000 $18.00 $ 450,000
L.P.
- ------------------------------------------------------------------------------------------------------
Lindemann Capital 25,000 $18.00 $ 450,000
- ------------------------------------------------------------------------------------------------------
The Lincoln Fund, L.P. 25,000 $18.00 $ 450,000
- ------------------------------------------------------------------------------------------------------
TOTAL 625,000 $18.00 $11,250,000
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EXHIBIT A
Legal Opinion of Cooley Godward LLP
(i) The Company has been duly incorporated and is in good standing
under the laws of the State of California.
(ii) The Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except as
rights to indemnity and contribution under Section 7.3 of the Agreement may be
limited by applicable laws and except as enforcement may be limited by
applicable laws and except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws affecting creditors' rights, and subject to general equity principles and
to limitations on availability of equitable relief, including specific
performance.
(iii) The Company's authorized capital stock consists of 20,000,000
shares of Common Stock, no par value, and 4,000,000 shares of Preferred Stock,
no par value. The Shares have been duly authorized, and upon issuance and
delivery against payment therefor in accordance with the terms of the Agreement,
the Shares will be validly issued, outstanding, fully paid and nonassessable. To
the best of our knowledge, there are no options, warrants, conversion
privileges, preemptive rights or other rights presently outstanding to purchase
any of the authorized but unissued capital stock of the Company, other than
rights created in connection with the transactions contemplated by the
Agreement, shares reserved for issuance under the Company's 1993 Stock Option
Plan, 1993 Non-Employee Directors' Stock Option Plan, 1993 Employee Stock
Purchase Plan and additional shares of common stock under reserve for issuance
to key employees, directors and consultants of the Company.
(iv) All consents, approvals, authorizations, or orders of, and
filings, registrations, and qualifications with any regulatory authority or
governmental body in the United States and California required for the
consummation by the Company of the issuance of the Shares have been obtained,
except for filing of a Form D notice.
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