Exhibit 10.8
AGREEMENT
TO AMEND
NONCOMPETITION AND PROPRIETARY INFORMATION AGREEMENT
AGREEMENT TO AMEND NONCOMPETITION AND PROPRIETARY INFORMATION AGREEMENT
("Agreement") entered into as of this ___ day of April 2002, by and among ▇▇▇▇▇▇
Automation, Inc., a Delaware corporation ("BAI"), Daifuku Co., Ltd., a Japanese
company ("Daifuku Japan"), and Daifuku America Corporation, an Illinois
corporation and wholly-owned subsidiary of Daifuku Japan ("DAC").
WITNESSETH:
WHEREAS, BAI acquired Auto-Soft Corporation and AutoSimulations, Inc.,
two Utah corporations, from DAC pursuant to a certain Agreement and Plan of
Merger dated as of January 6, 2000 ("Merger Agreement") among BAI, DAC and
Daifuku Japan.
WHEREAS, in connection with the Merger Agreement, BAI, Daifuku Japan
and DAC entered into a Noncompetition and Proprietary Information Agreement as
of January 6, 2000 ("Noncompetition Agreement") to set forth certain
noncompetition and proprietary arrangements effective after the closing of the
Merger Agreement;
WHEREAS, contemporaneously with this Agreement, BAI and Daifuku Japan
will enter into a certain License Agreement, dated as of the date hereof, which
grants certain licenses from BAI to Daifuku Japan ("License Agreement") with
respect to a certain material control system software product, including for use
in semiconductor wafer fabrication facilities, known as CLASS MCS ("CLASS MCS").
WHEREAS, in order to enhance competition in the MCS and related markets
after the proposed merger of BAI and PRI Automation, Inc., BAI, Daifuku Japan
and DAC desire to modify the Noncompetition Agreement to delete all
noncompetition and non-solicitation arrangements;
NOW THEREFORE, in consideration of the agreements, terms and conditions
herein and referenced above, and the consideration received under the License
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
it is hereby agreed by and among the parties as follows:
1. CONTRACTUAL TERMINATION AND RELEASE. In accordance with Section 12
(Modifications) of the Noncompetition Agreement, as of the date of this
Agreement, Section 2 (Covenant Not To Compete) and Section 3
(Non-Solicitation/Interference) of the Noncompetition Agreement are
hereby deleted and rendered null and void. The remainder of the
Noncompetition Agreement shall remain in full force, except that any
references to the deleted Sections shall be ignored.
2. CLAIM RELEASE. ▇▇▇▇▇▇, on behalf of its parents, Affiliates,
stockholders, directors, officers, employees and agents, hereby
releases, waives, and covenants not to ▇▇▇ with respect to, any and all
claims, liabilities and obligations arising prior to the date of this
Agreement it has, had or may have against Daifuku Japan and DAC, and
their parents, Affiliates, stockholders, directors, officers, employees
and agents, to the extent arising pursuant to Section 2 and/or Section
3 of the Noncompetition Agreement.
3. DEFINITIONS. Capitalized terms not defined herein shall have the
meanings set forth in the Noncompetition Agreement.
4. SUCCESSORS. This Agreement shall inure to the benefit of and be
enforceable by successors or assigns.
5. MODIFICATIONS. No modifications of any provisions of this Agreement
shall be made unless made in writing and signed by the parties hereto.
6. GOVERNING LAW. This agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
7. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8. HEADINGS. The headings of sections and paragraphs herein are included
solely for convenience of reference and shall not affect the meaning or
construction of any of the provisions hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto, or their duly authorized
representatives, have signed and delivered this Agreement effective as of the
day and year first above written.
▇▇▇▇▇▇ AUTOMATION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance &
Administration Chief Financial
Officer
DAIFUKU CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
DAIFUKU AMERICA CORPORATION
By: /s/ Natsuo Makino
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Name: Natsuo Makino
Title: Senior Vice President
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