<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
---
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
OR
___ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________ TO ________
COMMISSION FILE NUMBER 0-22114
ASYST TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 94-2942251
(State or other jurisdiction of (IRS Employer identification No.)
incorporation or organization)
48761 KATO ROAD, FREMONT, CALIFORNIA 94538
(Address of principal executive offices)
(510) 661-5000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO ____
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THE NUMBER OF SHARES OF THE REGISTRANT'S COMMON STOCK, NO PAR VALUE, OUTSTANDING
AS OF NOVEMBER 3, 1997 WAS 11,853,865.
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ASYST TECHNOLOGIES, INC.
INDEX
Part I. Financial Information Page No.
--------------------- --------
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -- 2
September 30, 1997 and March 31, 1997
Condensed Consolidated Statements of Income -- 3
Three Months Ended September 30, 1997 and
September 30, 1996 and Six Months Ended
September 30, 1997 and September 30, 1996
Condensed Consolidated Statements of Cash Flows -- 4
Six Months Ended September 30, 1997 and
September 30, 1996
Notes to Condensed Consolidated Financial 5
Statements
Item 2. Management's Discussion and Analysis of Financial 8
Condition and Results of Operations
Part II. Other Information 11
-----------------
Item 1. Legal Proceedings 11
Item 2. Changes in Securities and Use of Proceeds 11
Item 3. Defaults upon Senior Securities 11
Item 4. Submission of Matters to a Vote of Security Holders 11
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
Signature 14
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Exhibit Index 15
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1
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PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
ITEM 1 - FINANCIAL STATEMENTS
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
SEPTEMBER 30, MARCH 31,
1997 1997
-------------- ----------------
<S> <C> <C>
(UNAUDITED)
ASSETS
Current assets:
Cash and cash equivalents $ 23,225 $12,021
Accounts receivable, net 31,426 35,259
Inventories 23,218 18,609
Prepaid expenses and other current assets 9,611 12,626
Net assets of discontinued operations 4,559 2,749
-------------- ----------------
Total current assets 92,039 81,264
Property and equipment, net 9,935 10,363
Other assets, net 2,186 2,452
-------------- ----------------
$104,160 $94,079
============== ================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 12,027 $13,392
Accrued liabilities 12,757 10,205
Customer deposits 1,832 2,968
Income taxes payable 2,543 2,510
-------------- ----------------
Total current liabilities 29,159 29,075
-------------- ----------------
Shareholders' equity:
Common stock 69,263 66,945
Retained earnings (deficit) 5,738 (1,941)
-------------- ----------------
Total shareholders' equity 75,001 65,004
-------------- ----------------
$104,160 $94,079
============== ================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
2
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<TABLE>
<CAPTION>
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED: IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1997 1996 1997 1996
---------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Net sales $40,312 $33,085 $77,998 $66,233
Cost of sales 22,588 19,461 43,902 38,467
---------- ----------- ---------- -----------
Gross margin 17,724 13,624 34,096 27,766
Operating expenses:
Research and development 3,294 1,331 6,038 3,869
Selling, general and administrative 8,344 7,291 17,054 13,435
---------- ----------- ---------- -----------
Total operating expenses 11,638 8,622 23,092 17,304
Operating income 6,086 5,002 11,004 10,462
Other income, net 698 172 995 311
---------- ----------- ---------- -----------
Income from continuing operations
before income taxes 6,784 5,174 11,999 10,773
Provision for income taxes 2,442 1,790 4,320 3,893
---------- ----------- ---------- -----------
Income from continuing operations 4,342 3,384 7,679 6,880
Discontinued operations:
Loss from operations of Asyst
Automation, Inc., net of applicable
income tax benefit - (971) - (1,329)
---------- ----------- ---------- -----------
Net income $4,342 $ 2,413 $ 7,679 $ 5,551
========== =========== ========== ===========
Weighted average common and common
equivalent shares outstanding 11,728 10,332 11,397 10,362
Net income per share from continuing
operations $ 0.37 $ 0.33 $.67 $.66
========== =========== ========== ===========
Net income per share $ 0.37 $ 0.23 $.67 $.54
========== =========== ========== ===========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
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<TABLE>
<CAPTION>
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED: IN THOUSANDS)
SIX MONTHS ENDED
SEPTEMBER 30,
1997 1996
---------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 7,679 $ 5,551
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization expense 2,209 1,310
Loss from discontinued operations - 1,329
Change in net assets of discontinued operations (1,810) (8,193)
Decrease in provision for doubtful accounts (461) (236)
Tax benefit associated with employee option plan 548 -
Changes in current assets and liabilities:
Accounts receivable 4,294 2,887
Inventories (4,609) (5,864)
Prepaid expenses and other current assets 3,015 2,489
Accounts payable (1,365) 3,953
Accrued liabilities 2,552 1,837
Customer deposits (1,136) (5,299)
Income taxes payable 33 510
------ ------
Net cash provided by operating activities 10,949 274
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property, plan and equipment (1,519) (2,311)
Sale of short-term investments, net - 1,005
Increase (decrease) in other assets 4 (626)
------ ------
Net cash used for investing activities (1,515) (1,932)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock 1,770 912
------ ------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 11,204 (746)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 12,021 12,014
------ ------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $23,225 $11,268
============ ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
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ASYST TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited: In thousands)
BASIS OF PRESENTATION
The condensed consolidated financial statements include the accounts of Asyst
Technologies, Inc., a California corporation ("the Company"), and its wholly-
owned subsidiaries. Significant inter-company accounts and transactions have
been eliminated.
While the financial information furnished is unaudited, the financial statements
included in this report reflect all adjustments (consisting only of normal
recurring adjustments) which the Company considers necessary for the fair
presentation of the results of operations for the interim periods covered and of
the financial condition of the Company at the date of the interim balance sheet.
The Company closes its books on the last Saturday of each quarter and thus the
actual date of the quarter end is usually different from the month-end dates
used throughout this 10-Q report. The results for interim periods are not
necessarily indicative of the results for the entire year. The condensed
consolidated financial statements should be read in connection with the Asyst
Technologies, Inc. financial statements for the year ended March 31, 1997
included in its Form 10-K.
CASH AND CASH EQUIVALENTS
For purposes of the consolidated statements of cash flows, the Company considers
all highly liquid debt instruments purchased with a maturity of three months or
less to be cash and cash equivalents.
INVENTORIES
Inventories are stated at the lower of cost or market and include materials,
labor and manufacturing overhead costs. Inventories of continuing operations
consist of:
September 28, 1997 March 31, 1997
-------------------- --------------
Raw material $ 18,760 $ 16,302
Work-in-process and finished goods 4,458 2,307
-------- --------
$ 23,218 $ 18,609
======== ========
COMMON STOCK DIVIDEND
On July 21, 1997, the Board of Directors declared a two-for-one stock split of
the Company's Common Stock effected in the form of a stock dividend. The stock
dividend was paid on August 22, 1997 to the holders of record on August 1,
1997. All share and per share amounts have been adjusted retroactively to give
effect to the stock dividend.
NET INCOME PER SHARE
Net income per share has been computed using the weighted average number of
common stockand common equivalent shares outstanding. Common equivalent shares
consist of dilutive shares issuable upon the assumed exercise of outstanding
common stock options. Fully diluted net income per share is substantially the
same as primary net earnings per share.
5
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PROVISION FOR INCOME TAXES
Provision for income taxes for the three month and six month periods ended
September 30, 1997 and September 30, 1996 includes a provision for federal,
state and foreign taxes based upon the annual estimated effective tax rates
applicable to the Company and its subsidiaries for the year.
NEW ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board issued SFAS No. 128,
"Earnings Per Share" and SFAS No. 129, "Disclosure of Information about Capital
Structure." The requirements of both SFAS No. 128 and SFAS No. 129 will become
effective for the Company's year ending March 31, 1998. If SFAS No. 128 had been
applied by the Company, basic income per share would have been $.40 and $.24,
respectively, and diluted income per share of $.37 and $.23, respectively, for
the three month period ended September 30, 1997 and September 30, 1996. For the
six month period ended September 30, 1997 and September 30, 1996, basic income
per share would have been $.72 and $.55, respectively, and diluted income per
share of $.67 and $.54, respectively. SFAS No. 129 will not have a material
impact on the Company's financial statement disclosures.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income," which establishes standards for reporting and
presentation of comprehensive income and its components. SFAS No. 130 will
become effective for the Company's year ending March 31, 1999. SFAS No. 130 will
not have a material impact on the Company's results of operations.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information," which
establishes standards for disclosure of segment information. SFAS No. 131 will
become effective for the Company's year ending March 31, 1999. SFAS No. 131 will
not have a material impact on the Company's financial statement disclosures.
DISCONTINUED OPERATIONS
In January 1997, the Company adopted a formal plan to shutdown its subsidiary,
Asyst Automation, Inc., by the end of September 1997. The decision was based
upon the subsidiary's lack of ability to profitably manufacture and sell the
automation products that were acquired as part of the purchase of Proconics
International, Inc. in October 1994. Accordingly, Asyst Automation, Inc. is
accounted for as a discontinued operation in the accompanying financial
statements. The loss that was reported from discontinued operations for the
three and six month period ended September 30, 1996 was $971 net of an income
tax benefit of $546 and $1,329 net of an income tax benefit of $748,
respectively. Net assets of the subsidiary at September 30, 1997 and March 31,
1997 consist primarily of trade receivables, inventory and property, plant and
equipment.
ACQUISITION OF RADIANCE SYSTEMS INCORPORATED
On November 15, 1996 the Company purchased Radiance Systems Incorporated (RSI),
a developer and supplier of software products to be used in the semiconductor
manufacturing industry, by acquiring all of the outstanding stock of RSI in
exchange for 129,740 shares of common stock of the Company. The total purchase
price was approximately $2.4 million and was accounted for using purchase
accounting in the quarter ended December 28, 1996.
6
<PAGE>
ACQUISITION OF RADIANCE SYSTEMS INCORPORATED (continued)
In connection with the acquisition, the Company received an appraisal of the
intangible assets which indicated that approximately $1.3 million of the
acquired intangible assets consisted of in process research and development.
Because there can be no assurance that the Company will be able to successfully
complete the development of RSI products or that the acquired technology has any
alternative future use, the acquired in process research and development was
charged to expense in the quarter ended December 28, 1996. As a result of the
purchase price allocation, approximately $1.8 million (including $0.6 million of
deferred tax liability) was assigned to intangible assets related to existing
product technology, the assembled workforce and excess of the purchase price
over net assets acquired. These intangible assets will be amortized over a
period up to three years. Management believes that the balance of these assets
not amortized is recoverable.
Comparative pro forma information reflecting the acquisition of RSI has not been
presented because the operations of RSI are not material to the Company's
consolidated financial statements.
SUBSEQUENT EVENTS
Private Placement-
On September 30, 1997, the Company completed a private placement of one million
unregistered shares of its Common Stock at $42.92 per share, generating net
proceeds to the Company of $42.9 million. The Company intends to file a
registration statement, to be effective within 90 days, thus permitting the
resale of the securities. The proceeds from such private placement will augment
the Company's working capital in support of the growth in the 200mm and emerging
300mm semiconductor markets.
Related Party Transaction-
On September 30, 1997, the Company entered into an asset purchase agreement with
Palo Alto Technologies, Inc. ("PAT") pursuant to which the Company sold to PAT
certain intellectual property rights and office equipment which were owned or
licensed by Asyst Automation, Inc. (a discontinued operation) in consideration
for quarterly "Earn-Out Payments" up to an aggregate of $2.0 million. The "Earn-
Out Payments" are equal to 4.0 percent of PAT gross revenue. The Company may
convert the right to receive such "Earn-Out Payments" into shares of PAT
securities at the closing of certain issuances of securities by PAT. In
addition, PAT granted the Company the non-exclusive, worldwide right to
distribute and sell any of PAT's products on PAT's most favorable distributor
terms and conditions; except PAT may grant exclusive distribution rights to
particular markets so long as such rights are first offered to the Company and
the Company does not accept the offer. Such distribution rights shall terminate
on the earlier of (i) the fifth anniversary of such agreement or (ii) if the
Company begins selling its own products which are directly competitive with
PAT's products. The Chairman and Chief Executive Officer of the Company is the
Chairman and principal shareholder of PAT. The parties have agreed that the
Chairman and Chief Executive Officer of the Company and one other officer of the
Company may be advisors or directors of PAT while employed full time by the
Company.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Except for the historical information contained herein, the following discussion
contains forward-looking statements that involve risks and uncertainties. The
Company's actual results could differ materially from those discussed here.
Factors that could cause or contribute to such differences include, but are not
limited to, those discussed in this section and those contained in the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 1997.
RESULTS OF OPERATIONS
- ---------------------
Net sales. Net sales increased from $33.1 million for the three months ended
September 30, 1996, to $40.3 million for the three months ended September 30,
1997. Net sales for the six months ended September 30, 1997 were $78.0 million
which represents a 17.8 percent increase over the same period in the prior year.
The increase in the three month and six month periods are due primarily to the
increased sales of the Load Port Products (LPP) which represent 47.3 percent of
sales for the first six months ended September 30, 1997, compared to less than
7.0 percent of sales for the same period last year and an increase in sales
across most of the 200mm SMIF product lines. International sales for the Company
increased from $17.4 million, or 52.6 percent of net sales during the three
months ended September 30, 1996, to $26.5 million, or 65.7 percent of net sales
during the three months ended September 30, 1997. For the six month periods
ended September 30, 1996 and 1997, respectively, international sales increased
from $35.6 million, or 53.7 percent of net sales, to $51.3 million, or 65.8
percent of net sales. The increase in international sales is being driven
largely by repeat sales to customers in Taiwan for both new capacity and
retrofit projects. The Company's results of operations have not been adversely
affected by currency exchange rates because the Company has invoiced
substantially all of its international sales in United States dollars. However,
there can be no assurance that the Company's results of operations will not be
adversely affected by such fluctuations in the future. A substantial portion of
the Company's international sales are to customers in the Asia Pacific region.
The currencies of the countries located in that region in which the Company
serves, have been under valuation pressures. While the Company has not
experienced any cancellation or delay of orders from that region, there can be
no assurance that currency valuation pressures will not result in future
cancellation or delay in orders.
Gross Margin. Gross margin increased from 41.2 percent for the three months
ended September 30, 1996, to 44.0 percent for the three months ended September
30, 1997. Gross margin during the six months ended September 30, 1997
increased to 43.7 percent from 41.9 percent during the six months ended
September 30, 1996. The increase in gross margin for both the three month and
the six month periods ended September 30, 1997, resulted from improved margins
for the Load Port Product (LPP) line and more efficient scheduling of production
throughout the periods. The Company expects that its gross margin percentage may
fluctuate over the next few quarters as product mix varies and manufacturing
processes for the newer products mature. While it is the goal of the Company to
improve gross margins as a percentage of net sales in the future through
reduction of manufacturing costs and other inefficiencies in the Company's
distribution system, there can be no assurance that such improved margins can be
realized through such efforts or that margins may not be negatively affected by
other factors such as those contained in the Company's Annual Report on Form 10-
K for the fiscal year end March 31, 1997.
8
<PAGE>
RESULTS OF OPERATIONS (CONTINUED)
- ---------------------------------
Research and development. Research and development expenses increased from
$1.3 million or 4.0 percent of net sales during the three months ended
September 30, 1996, to $3.3 million or 8.2 percent of net sales during the
three months ended September 30, 1997. Research and development expenses
increased from $3.9 million or 5.8 percent of net sales during the six months
ended September 30, 1996, to $6.0 million or 7.7 percent of net sales for the
same period ended September 30, 1997. The increase is due primarily to
increases in staffing and personnel related expenses and other costs driven by
the Company's commitment to develop new products and product enhancements. The
Company expects that its research and development costs will increase in
future periods, although that spending will fluctuate as a percentage of net
sales.
Selling, general and administrative. Selling, general and administrative
expenses increased from $7.3 million or 22.0 percent of net sales during the
three months ended September 30, 1996, to $8.3 million or 20.7 percent of net
sales during the three months ended September 30, 1997. Selling, general, and
administrative expenses increased from $13.4 million or 20.3 percent of net
sales during the six months ended September 30, 1996, to $17.1 million or
21.9 percent of net sales during the six months ended September 30, 1997. Most
of the increases resulted from the Company's continued expansion of its sales,
general and administrative efforts, including the hiring of additional
personnel, in order to support the growth of the Company. The increase in
selling, general and administrative expenses as a percentage of net sales for
the six month period ended September 30, 1997 over the same period in the prior
fiscal year is related to the timing of the growth of Asyst Software, Inc.
during the second, third and fourth quarters of the prior fiscal year. The
Company expects that selling, general and administrative spending will
increase in future periods to support the future growth of the Company, although
that spending may vary as a percentage of net sales.
Other income, net. Other income, net, increased from $0.2 million during the
three months ended September 30, 1996 to $0.7 million during the three months
ended September 30, 1997. Other income, net, increased from $0.3 million
during the six months ended September 30, 1996 to $1.0 million during the six
months ended September 30, 1997. The increases resulted from an increase in
royalty income under a manufacturing license agreement and higher average cash
and cash investments available during the periods.
Provision for income taxes. The Company's effective income tax rate increased
from 34.6 percent for the three month period ended September 30, 1996 to 36.0
percent during the three month period ended September 30, 1997. The effective
tax rate was 36.0 percent for the six month periods ended September 30, 1996 and
1997. The increase in the rate for the three month period ended September 30,
1997, is because of a reduction in the effective tax rate made in the same
quarter last fiscal year to reflect a change in the estimated effective tax rate
for the year from 37.5 percent to 36 percent.
Discontinued operations. In the third quarter of fiscal year 1997, the Company
adopted a formal plan to close Asyst Automation, Inc., by September 30, 1997.
During the three and six month periods ended September 30, 1996, a loss from
discontinued operations was reported in the amount of $1.0 million, net of an
income tax benefit of $0.5 million and $1.3 million, net of an income tax
benefit of $0.7 million, respectively.
9
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
As of September 30, 1997, the Company had approximately $23.2 million in cash
and cash equivalents and approximately $62.8 million of working capital. In
addition, under a working capital line of credit agreement with a bank, the
Company can borrow up to $20.0 million conditioned upon meeting certain
financial covenants, including maintaining specific levels of quarterly and
annual earnings, working capital, tangible net worth and liquidity. As of
September 30, 1997, there were no outstanding borrowings against the line of
credit and the Company was in compliance with all the covenants required by the
bank. Interest is at the bank's prime rate.
Subsequent to the close of the quarter ended September 30, 1997, the Company
completed a private placement of 1.0 million unregistered shares of its common
stock, generating $42.9 million of proceeds. These proceeds will further augment
the Company's working capital in support of the growth in the 200mm and emerging
300mm semiconductor markets.
Although the Company cannot anticipate with certainty the effect of inflation on
its operations, to date inflation has not had a material impact on the Company's
net sales or results of operations.
The nature of the semiconductor industry, combined with the current economic
environment, make it very difficult for the Company to predict future liquidity
requirements with certainty. However, the Company believes that cash generated
from operations, together with its existing sources of working capital and the
proceeds from the private placement, will be adequate to finance continuing
operations, investments in property and equipment, inventories and expenditures
for the development of new products, at least through September 30, 1998.
10
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In October 1996, the Company filed a lawsuit in the United States District Court
for the Northern District of California against Jenoptik A.G. ("Jenoptik"),
Jenoptik-Infab, Inc. ("Infab"), a joint venture comprised of Jenoptics, Emtrak,
Inc. (Emtrak") and Empak, Inc. ("Empak"), Emtrak and Empak alleging
infringements of two patents related to the Company's SMART - Traveler System.
The Company has amended its Complaint to allege cause of action for breach of
fiduciary duty against Jenoptik and Meissner & Wurst, GmbH and misappropriation
of trade secrets and unfair business practices against all defendants. The
Company's Complaint seeks damages and injunctive relief against further
infringement. All defendants have counter-sued, seeking a judgment declaring the
patents invalid, unenforceable and not infringed. Jenoptik, Infab, and Emtrak
have also alleged that the Company has violated federal antitrust laws. The
Company has denied these allegations. While it is not possible to predict
accurately or to determine the eventual outcome of these matters, the Company
believes that the outcome of these legal proceedings will not have a material
adverse effect on the financial position of the Company.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On September 30, 1997, the Company sold 1,000,000 shares of Common Stock to a
group of mutual funds managed by a single, large institutional management firm
for an aggregate purchase price of $42,920,000. The sale of such shares of
Common Stock was deemed to be exempt from registration under the Securities Act
of 1933, as amended, pursuant to Regulation D/Rule 506. The Company intends to
file a registration statement, to be effective within 90 days, thus permitting
the resale of the securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of shareholders of Asyst Technologies, Inc. was held on
September 29, 1997 for the purposes of (1) electing directors to the Company's
Board of Directors to serve a one-year term expiring on the date of the
Company's 1998 annual meeting of shareholders and until his successor is elected
and has qualified, (2) approving an amendment to the Company's 1993 Stock Option
Plan, as amended, to increase the aggregate number of shares of common stock
authorized for issuance under such plan by 500,000, increasing the total number
of authorized shares from 2,100,000 shares to 2,600,000 shares and to add
provisions with respect to Section 162(m) of the Internal Revenue Code of 1986,
as amended, (3) approving an amendment to the Company's 1993 Non-Employee
Directors' Stock Option Plan, as amended, to increase the aggregate number of
shares of common stock authorized for issuance under such plan by 150,000
shares, increasing the total number of authorized shares from 100,000 shares to
250,000 shares and to increase the size of the initial options to purchase
common stock granted thereunder from 10,000 shares to 14,000 shares, (4)
ratifying the selection of Arthur Andersen LLP as the Company's independent
auditors for the fiscal year ending March 31, 1998. Proxies for the meeting were
solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as
amended, and there was no solicitation in opposition to management's
solicitations. The meeting was adjourned on September 29, 1997 and reconvened on
October 8, 1997, at which time the final vote on the proposals were recorded
as follows:
11
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS (CONTINUED)
Proposal 1:
Mihir Parikh was elected to the board of directors for a one-year term with
4,516,494 votes for and 200,445 votes against.
Stanley Grubel was elected to the board of directors for a one-year term with
4,512,864 votes for and 204,075 votes against.
Tsuyoshi Kawanishi was elected to the board of directors for a one-year term
with 4,515,197 votes for and 201,742 votes against.
Ashok K. Sinha was elected to the board of directors for a one-year term with
4,512,744 votes for and 204,195 votes against.
James E. Springgate was elected to the board of directors for a one-year term
with 4,515,982 votes for and 200,957 votes against.
Walter W. Wilson was elected to the board of directors for a one-year term with
4,515,927 votes for and 201,012 votes against.
Proposal 2:
The adoption of the amendment of the Company's 1993 Stock Option Plan to
increase the number of shares authorized for issuance under the plan by 500,000
shares to a total of 2,600,000 shares authorized was approved by the following
votes:
BROKERED
"FOR" "AGAINST" "ABSTAIN" "NON-VOTES"
----- --------- --------- -----------
1,916,097 1,809,207 4,824 986,811
Proposal 3:
The adoption of the amendment to the Company's 1993 Non-Employee Directors'
Stock Option Plan to increase the number of shares authorized for issuance under
the plan by 150,000 shares to a total of 250,000 shares authorized and the
adoption of the amendment to the Company's 1993 Non-Employee Directors' Stock
Option Plan to increase the number of shares underlying options granted
initially from 10,000 shares to 14,000 shares was approved by the following
votes:
BROKERED
"FOR" "AGAINST" "ABSTAIN" "NON-VOTES"
----- --------- --------- -----------
3,337,142 346,222 5,456 1,028,119
Proposal 4:
The selection of Arthur Andersen LLP as the Company's independent auditors for
the fiscal year ending March 31, 1998 was ratified by the following vote:
"FOR" "AGAINST" "ABSTAIN"
----- --------- ---------
4,709,352 4,332 3,255
12
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ITEM 5. OTHER INFORMATION
NONE
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
10.15* Asset Purchase Agreement between Palo Alto Technologies, Inc.,
the Company and Asyst Automation Inc., dated September 30, 1997
27.1 Financial Data Schedule
b) Form 8-K
No reports on Form 8-K were filed during the period covered by this report
* Confidential Treatment Requested
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ASYST TECHNOLOGIES, INC.
Date: November 10, 1997 By: /s/ Douglas J. McCutcheon
----------------------- ----------------------------
Douglas J. McCutcheon
Senior Vice President
Chief Financial Officer
Signing on behalf of the registrant
and as the principal accounting and
financial officer
14
<PAGE>
EXHIBIT INDEX
Sequential
Page
Exhibit Number Description of Exhibit Number
- -------------- ---------------------- ------
10.15* Asset Purchase Agreement between Palo Alto Technologies,
Inc., the Company and Asyst Automation, Inc., dated September
30, 1997
27.1 Financial Data Schedule
* Confidential Treatment Requested
15
<PAGE>
EXHIBIT 10.15
ASSET PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 30, 1997
BY AND AMONG
ASYST TECHNOLOGIES, INC
A CALIFORNIA CORPORATION,
ASYST AUTOMATION, INC
A DELAWARE CORPORATION
AND
PALO ALTO TECHNOLOGIES, INC
A CALIFORNIA CORPORATION
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1. SALE OF ASSETS.................................................. 1
SECTION 2. CONSIDERATION FOR TRANSFER OF THE ASSETS........................ 2
2.1 Purchase Price.................................................. 2
2.2 Earn-Out Payments............................................... 2
2.3 Audit........................................................... 2
2.4 Conversion...................................................... 2
2.5 License Back.................................................... 3
2.6 Distribution.................................................... 3
SECTION 3. THE CLOSING..................................................... 3
3.1 The Closing..................................................... 3
3.2 Documents to be Delivered at Closing............................ 3
3.3 Use of Assets................................................... 4
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLERS....................... 4
4.1 Organization; Power; Good Standing.............................. 4
4.2 Authority, Approval and Enforceability.......................... 4
4.3 No Conflict..................................................... 4
4.4 No Consent Required............................................. 5
4.5 Title to Assets................................................. 5
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER......................... 5
5.1 Organization; Power; Good Standing.............................. 5
5.2 Authority, Approval and Enforceability.......................... 5
5.3 No Conflict..................................................... 5
5.4 No Consent Required............................................. 6
SECTION 6. ADDITIONAL AGREEMENTS........................................... 6
6.1 Confidentiality................................................. 6
6.2 Payment of Expenses............................................. 6
6.3 Sales, Transfer and Use Taxes................................... 6
6.4 Information Relating to Taxes................................... 7
6.5 Employees....................................................... 7
6.6 Buyer's Advisors................................................ 7
6.7 Further Assurances.............................................. 7
SECTION 7. MISCELLANEOUS................................................... 7
7.1 Entire Agreement................................................ 7
7.2 Amendment and Waiver............................................ 7
i.
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.3 Delays or Omissions............................................. 7
7.4 Assignment: Binding Upon Successors and Assigns................ 8
7.5 Notices......................................................... 8
7.6 Survival of Representations and Warranties...................... 9
7.7 Incorporation of Schedules and Exhibits......................... 9
7.8 Expenses........................................................ 9
7.9 Captions........................................................ 9
7.10 Severability.................................................... 9
7.11 Governing Law................................................... 9
7.12 Counterparts.................................................... 9
7.13 Attorneys' Fees................................................. 9
ii.
<PAGE>
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of
September 30, 1997, by and among ASYST TECHNOLOGIES, INC., a California
corporation and ASYST AUTOMATION, INC., a Delaware corporation (collectively,
the "Sellers") and PALO ALTO TECHNOLOGIES, INC., a California corporation (the
"Buyer").
RECITALS
WHEREAS, Sellers have been engaged in the business of developing and
marketing automation products for use in semiconductor manufacturing and has
announced its intention to withdraw from such business (the "Business");
WHEREAS, Sellers have in the course of operating the Business developed
preliminary product designs and prototypes for products related to the
automation of semiconductor manufacturing that have not been marketed and
Sellers own certain equipment useful in this product development that it will
not need to meet its remaining customer obligations associated with the
Business; and
WHEREAS, Buyer desires to purchase from Sellers and Sellers desire to sell
to Buyer, such software, designs, prototypes and equipment, together with
Sellers' intellectual property rights pertaining thereto all as described in
Exhibit A hereto (collectively, the "Assets") on the terms and subject to the
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, covenants and agreements hereinafter set
forth, and intending to be legally bound, the parties hereto hereby agree as
follows:
SECTION 1. SALE OF ASSETS. Upon the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined below), Sellers shall
sell, convey, assign, grant, transfer and deliver to Buyer, and Buyer shall
purchase, acquire and receive from Sellers the Assets, free and clear of all
liens, mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of every kind, nature or character ("Liens").
The parties acknowledge that Sellers' rights under the Software License
Agreement (the "License Agreement") among Asyst Automation, Inc., Toshiba
Mechatronics Co., Ltd. ("Toshiba") and Mitsui & Co., Ltd. (relating to the MCS
software) are intended to be included in the Assets but that the License
Agreement may only be assigned by Sellers to Buyer with the consent of Toshiba.
Sellers will use commercially reasonable efforts to obtain such consent.
Notwithstanding any such assignment, Sellers shall remain responsible to pay
Toshiba the installment payments set forth in Section 5.1 of the License
Agreement and Buyer shall be liable
1.
<PAGE>
for royalties payable under Section 5.2 of the License Agreement for software
sold by Buyer. Sellers shall have no further liability to Buyer pursuant to the
License Agreement.
Any intellectual property relating to the Field (as defined below) which is
developed by Sellers' employees whose principal work related to the Field
including Mihir Parikh and Anthony Bonora on or before December 31, 1997, shall
be deemed to be included within the Assets and to be the property of Buyer.
SECTION 2. CONSIDERATION FOR TRANSFER OF THE ASSETS
2.1 PURCHASE PRICE. Subject to the terms and conditions of these
Agreement, in consideration of the transfer of the Assets, Buyer shall pay to
Sellers the "Earn-Out Payments" (as defined below) up to an aggregate of
$2,000,000.
Notwithstanding anything else in this Agreement to the contrary, except as
specifically set forth in Section 1, Buyer shall not assume, pay, perform, or
discharge, and Sellers shall solely retain, pay, perform and discharge, all
obligations and liabilities of Sellers relating to the Business, whether
disclosed, undisclosed, direct, indirect, fixed or contingent, known or unknown,
incurred in the ordinary course of business or otherwise.
2.2 Earn-Out Payments. Subject to the terms and conditions of this
Agreement, in consideration of the transfer of the Assets, Buyer shall pay to
Sellers Earn-Out Payments equal to 4.0% of the Gross Revenue of Buyer. The
Gross Revenue of Buyer means the Buyer's actual revenue from all sources
relating to transport systems and transfer (conveyor to tool loadport and/or
stocker) systems in connection with manufacturing automation (the "Field") less
freight, sales tax and insurance, and shall be determined using Generally
Accepted Accounting Principles. The Earn-Out Payments shall be paid quarterly
within forty-five (45) days following the end of each quarter (the "Payment
Date"). On each Payment Date, Buyer shall deliver to Sellers a statement
setting forth in reasonable detail the Gross Revenue of Buyer and the Earn-Out
Payments.
2.3 AUDIT. For six (6) months following the payment of the final Earn-Out
Payment, Sellers shall have reasonable access to the financial books and records
of Buyer and Buyer's successor-in-interest of the Business for the purpose of
auditing the Earn-Out Payments, subject to reasonable confidentiality
restrictions. If the audit results in any additional payments to Sellers in
excess of ten thousand dollars ($10,000) (the "Minimum Earn-Out Discrepancy"),
then Buyer shall be liable for the fees and expenses of the auditor. If the
audit results in no additional payments to Sellers or payments below the Minimum
Earn-Out Discrepancy, then Sellers shall be liable for the auditor's fees and
expenses. Buyer shall make any additional payments to the Sellers within twenty
(20) days after the completion of the audit. The auditor shall be a national
accounting firm satisfactory to the Sellers and Buyer.
2.4 CONVERSION. The right to receive Earn-Out Payments pursuant to
Section 2.1 may be converted, at the option of Sellers, into shares of Buyer's
securities sold at the closing of an equity financing for Buyer in which the
aggregate gross proceeds raised by Buyer (including any
2.
<PAGE>
previous sales of Buyer's equity) is at least $3,000,000; provided, however that
if such conversion would cause Sellers to own more than 9.5% of the outstanding,
voting stock of Buyer, then only such amount of Earn-Out Payments that would
convert into 9.5% of the outstanding voting stock of the Company may be
converted and the remaining Earn-Out Payments shall remain available for
conversion at the option of Sellers in any subsequent financing. The number of
shares issuable to Sellers upon conversion of the Earn-Out Payments in
connection with any financing shall be equal to the principal amount of Earn-Out
Payments that is being converted divided by the price per share at which Buyer
sells its equity securities in such financing. Sellers shall not have the right
to convert Earn-Out Payments which have been paid by Buyer pursuant to Section
2.2, and the amount of any such payments shall be deducted from the balance
available for conversion hereunder.
2.5 LICENSE BACK. The parties acknowledge that Sellers' products may
contain intellectual property sold to Buyer pursuant to this Agreement,
accordingly, Buyer grants to Sellers the worldwide, non-exclusive, royalty-free,
fully-paid and perpetual right and license, with the right of sublicense, in and
to the intellectual property included within the Assets to use, sell,
distribute, reproduce, modify, make and have made, any of the Sellers' current
products in the Field and any of Sellers' current and future products outside
the Field. The limitations on such license in this Section 2.5 with respect to
the Field shall expire on May 15, 2002.
2.6 DISTRIBUTION. Buyer hereby grants Sellers the non-exclusive,
worldwide right and license to distribute and sell any of Buyer's products on
terms and conditions mutually acceptable to Buyer and Sellers which are no less
favorable than the most favorable terms granted to other distributors of Buyer,
provided that Buyer may grant exclusive distribution rights to third parties in
particular markets if such exclusive distribution rights are first offered to
Sellers on the same terms and conditions as later offered to such third party
and Sellers do not accept the offer; provided, however, that Sellers have or are
reasonably expected to have the capability of performing such exclusive
distribution function in such particular markets in a reasonably comparable
manner to such third party. This Section 2.6 shall terminate on the earlier of
(i) the fifth anniversary of this Agreement or (ii) if Sellers offer for sale
their own products relating to the automation of semiconductor manufacturing
which compete directly with Buyer's products.
SECTION 3. THE CLOSING.
3.1 THE CLOSING. The closing of the transactions contemplated hereby (the
"Closing") shall be held at the offices of Cooley Godward LLP, Five Palo Alto
Square, 3000 El Camino Real, Palo Alto, California at 10:00 a.m. Pacific Time on
September 30, 1997 or such other place, time and date as Buyer and Sellers may
mutually select. The time and date on which the Closing is actually held is
referred to herein as the "Closing Date."
3.2 DOCUMENTS TO BE DELIVERED AT CLOSING. On the Closing Date, subject to
the terms and conditions of this Agreement, Sellers shall deliver to Buyer such
bills of sale, assignments, endorsements and other recordable instruments of
assignment, transfer and conveyance, in form and substance reasonably
satisfactory to Buyer and its counsel, as shall be
3.
<PAGE>
effective to vest in Buyer all of the right, title and interest of Sellers in
and to the Assets free and clear of all Liens.
3.3 USE OF ASSETS. Following the Closing, Sellers shall be entitled to
use the Assets as necessary for the wind-up of Asyst Automation, Inc. In such
case, the physical transfer of such Assets shall occur on a date to be agreed by
the parties, but no later that September 30, 1997, and Sellers shall insure the
Assets for the benefit of Buyer until such transfer.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Except as set forth on the Schedule of Exceptions, Sellers hereby represent
and warrant to Buyer as follows:
4.1 ORGANIZATION; POWER; GOOD STANDING. Asyst Technologies, Inc. is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, Asyst Automation, Inc. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, each of the Sellers has all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as now
conducted and is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the failure so to qualify could have a
material adverse effect on Sellers, taken as a whole, or the Assets.
4.2 AUTHORITY, APPROVAL AND ENFORCEABILITY.
(a) Each of the Sellers has full corporate power and authority to
execute, deliver and perform its obligations under this Agreement and all
agreements, instruments and documents contemplated hereby, and all corporate
action of Sellers necessary for such execution delivery and performance has been
duly taken.
(b) This Agreement is a legal, valid and binding obligation of
Sellers, and, upon due execution and delivery by the parties thereto, all
agreements, instruments and documents to be executed by Sellers in connection
with the transactions contemplated hereby will be legal, valid and binding
obligations of Sellers, each enforceable against Sellers in accordance with
their respective terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and subject to general equity principles and to
limitations on availability of equitable relief, including specific performance.
4.3 NO CONFLICT. The execution and delivery by Sellers of this Agreement
and any other agreements, instruments and documents to be executed and delivered
by Sellers pursuant hereto do not, and the performance and consummation by
Sellers of the transactions contemplated hereby and thereby will not, conflict
with or result in any breach or violation of or default, termination, forfeiture
or lien under (or upon the failure to give notice or the lapse of time, or both,
result in any conflict with, breach or violation of or default, termination,
forfeiture or lien under) any terms or provisions of Sellers' charter documents,
each as amended,
4.
<PAGE>
or any statute, rule, regulation, judicial or governmental decree, order or
judgment, to which Sellers is a party or to which Sellers or the Assets are
subject.
4.4 NO CONSENT REQUIRED. No consent, authorization, approval, order,
license, certificate or permit or act of or from, or declaration or filing with,
any foreign, federal, state, local or other governmental authority or regulatory
body or any court or other tribunal to which Sellers or the Assets are subject
is required for the execution, delivery or performance by Sellers of this
Agreement or any of the other agreements, instruments and documents being or to
be executed and delivered hereunder or in connection herewith or for the
consummation of the transactions contemplated hereby or thereby.
4.5 TITLE TO ASSETS. Sellers have good and marketable title to the
Assets, free and clear of all Liens. Upon delivery by Sellers to Buyer of the
Assets at Closing, Buyer will acquire good and marketable title to the Assets
free and clear of all Liens.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER.
As a material inducement to Sellers to enter into this Agreement, Buyer
represents and warrants to Sellers as follows:
5.1 ORGANIZATION; POWER; GOOD STANDING. Buyer is a company duly
organized, validly existing and in good standing under the laws of the State of
California, has all requisite corporate power and authority to own, operate and
lease its properties and to carry on its business as now conducted and is
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which the failure so to qualify could have a material
adverse effect on the business, assets, operations or financial condition of
Buyer.
5.2 AUTHORITY, APPROVAL AND ENFORCEABILITY.
(a) Buyer has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement and all agreements, instruments
and documents contemplated hereby, and all corporate action of Buyer necessary
for such execution, delivery and performance has been duly taken.
(b) This Agreement is a legal, valid and binding obligation of Buyer,
and, upon due execution and delivery by the parties thereto, all agreements,
instruments and documents to be executed by Buyer in connection with the
transactions contemplated hereby will be legal, valid and binding obligations of
Buyer, each enforceable against Buyer in accordance with its respective terms,
except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and subject to general equity principles and to limitations on
availability of equitable relief, including specific performance.
5.3 NO CONFLICT. The execution and delivery by Buyer of this Agreement
and any other agreements, instruments and documents to be executed and delivered
by Buyer pursuant
5.
<PAGE>
hereto do not, and the performance and consummation by Buyer of the transactions
contemplated hereby and thereby will not, conflict with or result in any breach
or violation of or default, termination, forfeiture or lien under (or upon the
failure to give notice or the lapse of time, or both, result in any conflict
with, breach or violation of or default, termination, forfeiture or lien under)
any terms or provisions of Buyer's charter documents, each as amended, or any
statute, rule, regulation, judicial or governmental decree, order or judgment,
agreement, lease or other instrument to which Buyer is a party or to which Buyer
or its assets are subject that has or is likely to have a material adverse
effect on the business, assets, operations or financial condition of Buyer.
5.4 NO CONSENT REQUIRED. No consent, authorization, approval, order,
license, certificate or permit or act of or from, or declaration or filing with,
any foreign, federal, state, local or other governmental authority or regulatory
body or any court or other tribunal or any party to any contract, agreement,
instrument, lease or license to which Buyer is a party or to which Buyer or its
assets are subject that has or is likely to have a material adverse effect on
the business, assets, operations or financial condition of Buyer, is required
for the execution, delivery or performance by Buyer of this Agreement or any of
the other agreements, instruments and documents being or to be executed and
delivered hereunder or in connection herewith or for the consummation of the
transactions contemplated hereby.
SECTION 6. ADDITIONAL AGREEMENTS.
6.1 CONFIDENTIALITY. For a period of three years from the date of this
Agreement, each party hereto shall hold in confidence and use its best efforts
to have all of their respective employees, agents, representatives and
affiliated companies hold in confidence all documents and other written material
containing information of a confidential nature belonging to the other party
(including, but not limited to, the intellectual property rights contained in
the Assets), and, except as contemplated by this Agreement, shall not disclose,
publish, use or permit others to use the same; provided, however, that the
foregoing restriction shall not apply to any portion of the foregoing which:
(i) becomes generally available to the public in any manner or form through no
fault of either party, or their respective employees, agents or representatives;
(ii) is released for disclosure by one party with the other party's consent or
(iii) when such disclosure is required by a court or a governmental agency or is
otherwise required by law or is necessary in order to establish rights under
this Agreement or any other agreements referred to herein.
6.2 PAYMENT OF EXPENSES. Whether or not the transactions contemplated by
this Agreement are consummated and, except as otherwise may be expressly
provided herein, each party shall pay its own fees, expenses and disbursements
and those of its respective agents, representatives, consultants, accountants
and counsel incurred in connection with this Agreement and all other costs and
expenses incurred in the performance and compliance with all conditions to be
performed by such party under this Agreement.
6.3 SALES, TRANSFER AND USE TAXES. Sellers shall pay all sales, transfer
and use taxes arising out of the transfer of the Assets.
6.
<PAGE>
6.4 INFORMATION RELATING TO TAXES. Sellers shall furnish to Buyer from
time to time after the Closing Date any information reasonably requested by
Buyer which is in the possession of or reasonably available to Sellers to permit
Buyer: (i) to file on a timely basis its federal income tax returns and its
estimated federal income tax returns and any other tax returns which may be
required by any federal, state, local or foreign tax authority, and (ii) to
comply with orders issued by any federal, state, local or foreign governmental
authority.
6.5 EMPLOYEES. Buyer may hire any employee of Asyst Automation, Inc. or
any employee of Asyst Technologies, Inc. whose principal work relates to the
Field, however, such hired employees must give Sellers three months written
notice of the termination of their employment with Sellers.
6.6 BUYER'S ADVISORS. It is understood that Mihir Parikh and Anthony
Bonora will serve as advisors to or directors of Buyer while continuing to serve
as employees and officers of Sellers. The parties agree that any intellectual
property relating to the Field developed by Mihir Parikh and Anthony Bonora
which is developed by either of them while in Sellers' employ shall nevertheless
be deemed to be the property of Buyer; provided, however, that if either Mihir
Parikh or Anthony Bonora use the laboratory or testing equipment of Sellers in
developing such intellectual property, then such intellectual property shall be
the property of Sellers pursuant to the Proprietary Information and Inventions
Assignment Agreement or similar agreement between Sellers and Mihir Parikh or
Anthony Bonora, respectively.
6.7 FURTHER ASSURANCES. Sellers, at any time after the Closing, at the
request of Buyer and at Buyer's sole expense, shall execute, acknowledge and
deliver any further assignments, conveyances and other assurances, documents and
instruments of transfer, and will take any other action consistent with the
terms of this Agreement, that may reasonably be necessary for the purpose of
assigning, granting and confirming to Buyer all Assets to be conveyed pursuant
to this Agreement.
SECTION 7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Agreement, including the schedules and
exhibits hereto, contains the entire understanding among the parties hereto and
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, representations, inducements or
conditions, express or implied, oral or written, except as set forth herein. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
7.2 AMENDMENT AND WAIVER. This Agreement may not be modified, amended or
supplemented other than by an agreement in writing executed by all parties
hereto. No waiver shall be binding unless executed in writing by the party
making the waiver. No waiver of any provisions, breach or default of this
Agreement shall be deemed or shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
7.
<PAGE>
7.3 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character of
any breach, default or noncompliance under this Agreement or any waiver of any
provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or otherwise afforded to any party, shall
be cumulative and not alternative.
7.4 ASSIGNMENT: BINDING UPON SUCCESSORS AND ASSIGNS. Neither party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
7.5 NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received on the date when delivered by hand delivery with receipt acknowledged,
or upon the next business day following receipt of telex or telecopy
transmission, or upon the third day after deposit in the United States mail,
registered or certified with postage prepaid, return receipt requested,
addressed as set forth below:
(a) If to Buyer:
Palo Alto Technologies, Inc.
c/o Michael Danaher
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Telephone: (415) 493-9300
Telecopy: (415) 493-6811
(b) If to Sellers:
Asyst Technologies, Inc.
48761 Kato Road
Fremont, Ca 94538
Telephone: (510) 661-5000
Telecopy: (510) 661-5151
Attn: Douglas J. McCutcheon
Any party may alter the addresses to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 7.5 for the giving of notice.
8.
<PAGE>
7.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by any party to this Agreement or pursuant hereto shall survive
the Closing. The representations and warranties hereunder shall not be affected
or diminished by any investigation at any time by or on behalf of the party for
whose benefit such representations and warranties were made.
7.7 INCORPORATION OF SCHEDULES AND EXHIBITS. All schedules, exhibits and
other documents and written information required to be delivered pursuant to
this Agreement are incorporated into this Agreement by this reference and are
warranted by the party or parties which deliver the same to be accurate and
complete in all material respects.
7.8 EXPENSES. Each party will bear its respective expenses and legal fees
incurred with respect to this Agreement, and the transactions contemplated
hereby.
7.9 CAPTIONS. The captions contained in this Agreement are for
convenience and reference purposes only and shall not affect in any way the
meaning and interpretation of this Agreement.
7.10 SEVERABILITY. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and 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 Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business and
other purposes of the void or unenforceable provision.
7.11 GOVERNING LAW. In all respects, including all matters of
construction, validity and performance, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof shall bear the signatures of
all of the parties indicated as the signatories hereto.
7.13 ATTORNEYS' FEES. In the event that any action or proceeding is
brought by either party to enforce or interpret any provision, covenant or
condition contained in this Agreement, the prevailing party in such action or
proceeding (whether after trial or appeal) shall be entitled to recover from the
party not prevailing its expenses therein, including reasonable attorneys' fees
and allowable costs.
9.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER: PALO ALTO TECHNOLOGIES, INC.
a California company
By: /s/ Mihir Parikh
----------------------------
Name: Mihir Parikh
Title: Chairman
SELLERS: ASYST TECHNOLOGIES, INC.
a California corporation
By: /s/ Douglas J. McCutcheon
-----------------------------
Douglas J. McCutcheon
Senior Vice President and
Chief Financial Officer
ASYST AUTOMATION, INC.
a Delaware corporation
By: /s/ Douglas J. McCutcheon
------------------------------
Douglas J. McCutcheon
Senior Vice President and
Chief Financial Officer
10.
<PAGE>
EXHIBIT A
---------
1.0 TRANSPORT SYSTEM (AKA, "SMART-CONVEYOR" OR 'ATS')
- ---- -------------------------------------------------
1.1 Designs, concepts, drawings, system hardware, electronics software,
engineering notebooks, assembly documentation.
1.2 Data/Information regarding suppliers, Bill of Materials, costs, PCB
artwork, tools.
1.3 Intellectual property invention and patent disclosures (as per attached
list), files, notebooks, agreements between Asyst Automation and with
AESOP dated June 18, 1996.
1.4 Data on tests, performance, simulation, market studies.
1.5 Prototype and related hardware of conveyor, rotator ('director'),
miscellaneous subsystems and components, such as motors, PCB, computer,
minienvironment test bed, pods, cassettes, boxes for testing.
2.0 TRANSFER (CONVEYOR TO TOOL LOADPORT AND/OR STOCKER) SYSTEM
- ---- ----------------------------------------------------------
2.1 Concept, designs invention/patent disclosures (as per attached list) for
mechanisms for loading tool port or other locations from conveyor.
2.2 Concept, designs, invention/patent disclosure (as per attached list) for
modifications, enhancement, additions to cassettes, pods, containers to
facilitate, improve transfer, transport or loading of tool ports.
3.0 MATERIAL ROUTING MANAGEMENT AND SOFTWARE
- ---- ----------------------------------------
3.1 Concept, designs, invention/patent disclosure (as per attached list) for
use of identification and tracking systems (bar code, Smart-Tags,
long/short range IR or RF devices) for enabling, enhancing transport,
transfer and loading of tool ports.
3.2 Material Control Software ("MCS") and Tracker Software including PLC,
standalone and embedded for routing, managing and scheduling of lot
(cassette, pod, container) movement and delivery.
3.3 Toshiba developed and licensed to AAI MCS software as per agreement with
Asyst Technologies and Toshiba Mechatronics Company, LTD. dated March 12,
1997.
4.0 MISC. ASSETS FROM AAI AVAILABLE NO LATER THAN SEPTEMBER 30,1997
- ---- ---------------------------------------------------------------
4.1 Up to ten (10) computers, ten (10) printers, one (1) network server
computer, and two (2) copiers presently on AA1 asset list. These items are
to be first available and selected by the buyer before being made
available to ATI or any other party.
4.2 Office desks, chairs, bookcases, and office dividers, etc. for up to ten
(10) professionals. These items are to be first available and selected by
the buyer before being made available to AT1 or any other party.
STRICTLY CONFIDENTIAL
<PAGE>
LIST OF DISCLOSURES
-------------------
57. [*]
78. [*]
xx. [*]
xx. [*]
xx. [*]
xx. [*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
<PAGE>
BILL OF SALE
ASYST TECHNOLOGIES, INC., a California corporation, and ASYST AUTOMATION,
INC., a Delaware corporation (collectively, the "Assignors"), which have been
engaged in the business of developing and marketing automation products for use
in semiconductor manufacturing (the "Business"), for good and valuable
consideration to them, receipt of which is hereby acknowledged, do hereby sell,
assign, transfer, and convey unto PALO ALTO TECHNOLOGIES, INC., a California
corporation (hereinafter called "Assignee"), its successors and assigns, all
rights (whether at common law or otherwise), title and interest in and to
certain product designs and prototypes for products related to the Business that
have not been marketed, certain software and certain equipment, together with
the intellectual property pertaining thereto, all as described on Exhibit A to
the Asset Purchase Agreement dated September 30, 1997 by and among the Assignors
and the Assignee (collectively, the "Assets"), free and clear of all liens,
mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of every kind, nature or character ("Liens"), to have
and to hold the Assets forever.
Assignors, subject to the terms of the Asset Purchase Agreement relating to
the sale of Assignors' assets, do hereby warrant, covenant, and agree that they:
(a) have good and marketable title to the assets, business, and
goodwill hereby sold, assigned, transferred, conveyed, and delivered;
(b) will warrant and defend the sale of said assets, business, and
goodwill against all and every person or persons whomsoever claiming to or
making claim against any or all of the same; and
(c) will take all steps necessary to put Assignee, its successor or
assigns, in actual possession and operating control of said assets.
IN WITNESS WHEREOF, Assignors have caused the same to be signed this 30th
day of September, 1997.
ASYST AUTOMATION, INC. ASYST TECHNOLOGIES, INC.
By: /s/ Douglas J. McCutcheon By: /s/ Douglas J. McCutcheon
--------------------------- ---------------------------
Douglas J. McCutcheon Douglas J. McCutcheon
Senior Vice President and Senior Vice President and
Chief Financial Officer Chief Financial Officer
1.
<PAGE>
INTELLECTUAL PROPERTY ASSIGNMENT
THIS ASSIGNMENT is made this 30th day of September, 1997, by ASYST
TECHNOLOGIES, INC., a California corporation and ASYST AUTOMATION, INC., a
Delaware corporation, (collectively, the "Assignors"), in favor of PALO ALTO
TECHNOLOGIES, INC., a California corporation (the "Assignee").
WHEREAS, Assignors and Assignee have entered into that certain Asset
Purchase Agreement dated September 30, 1997 (the "Asset Purchase Agreement"),
which, along with the promises contained herein, constitute mutual consideration
for the promises herein;
NOW, THEREFORE, for consideration the adequacy and receipt of which is
hereby acknowledged, the Assignors hereby:
1. ASSIGN to Assignee all of its right, title and interest in and to the
intellectual property referenced on Exhibit A of the Asset Purchase Agreement.
2. AGREE to assist Assignee in every proper way, at Assignee expense, to
obtain and enforce United States and foreign proprietary rights relating to any
and all inventions, original works of authorship, developments, improvements or
trade secrets assigned hereunder. To that end Assignors will execute, verify
and deliver such documents and perform such other acts (including appearing as a
witness) as Assignee may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such proprietary rights and the
assignment thereof.
3. APPOINT and designate irrevocably Assignee and its duly authorized
officers and agents as its agent and attorney-in-fact, to act for and in its
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by Assignors, in the event
Assignee is unable for any reason, after reasonable effort, to secure Assignors'
signature on any document needed in connection with the actions specified in the
preceding paragraph. Assignors hereby waive and quitclaim to Assignee any and
all claims of any nature whatsoever which it now or may hereafter have for
infringement of any proprietary rights assigned hereunder to the Assignee.
IN WITNESS WHEREOF, Assignors have executed this Assignment as of the day
and year first above written.
ASSIGNORS
Asyst Technologies, Inc. Asyst Automation, Inc.
/s/ Douglas J. McCutcheon /s/ Douglas J. McCutcheon
- -------------------------- ---------------------------
DOUGLAS J. MCCUTCHEON DOUGLAS J. MCCUTCHEON
Senior Vice President and Senior Vice President and
Chief Financial Officer Chief Financial Officer
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FINANCIAL
STATEMENTS FOR THE SIX MONTHS ENDED SEPTEMBER 30,1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-START> APR-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 23,225
<SECURITIES> 0
<RECEIVABLES> 32,810
<ALLOWANCES> 1,384
<INVENTORY> 23,218
<CURRENT-ASSETS> 92,039
<PP&E> 18,616
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<CURRENT-LIABILITIES> 29,159
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0
0
<COMMON> 69,263
<OTHER-SE> 5,738
<TOTAL-LIABILITY-AND-EQUITY> 104,160
<SALES> 77,998
<TOTAL-REVENUES> 77,998
<CGS> 43,902
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<OTHER-EXPENSES> 23,092
<LOSS-PROVISION> (461)
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<INCOME-PRETAX> 11,999
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<EPS-DILUTED> 0
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