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EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
made as of June 20, 1997, between VARIAN ASSOCIATES, INC., a Delaware
corporation ("Seller"), and NOVELLUS SYSTEMS, INC., a California corporation
("Buyer").
RECITALS
A. Seller and Buyer are parties to an Asset Purchase Agreement,
dated as of May 7, 1997 (the "Agreement").
B. Seller has received a copy of a complaint filed on June 13, 1997
(as the same may be replaced, amended or refiled from time to time, the
"Complaint"), in which Applied Materials, Inc., a Delaware corporation
("Applied"), has alleged and may in the future allege various claims (the
"Claim") against Seller with respect to certain patents (as specified therein).
Seller has also received a letter, dated June 6, 1997, from Applied threatening
a patent infringement suit against Seller as to certain patents (as specified
therein) (the "Threat"). The litigation of the Claim (including any appeals
therefrom) is referred to herein as the "Litigation."
C. In connection with the foregoing, Seller and Buyer desire to amend
the Agreement pursuant to Section 13. 10 of the Agreement as set forth below.
AGREEMENT
In consideration of the foregoing recitals and the mutual promises made
herein, the parties hereto hereby agree that the Agreement shall be amended as
follows:
1. Closing. For purposes of the Agreement, (a) the term "Purchase
Price" shall mean One Hundred Forty-Nine Million Dollars ($149,000,000), and (b)
the terms "Closing" and "Closing Date" shall each mean the close of business on
June 13, 1997. Notwithstanding the foregoing clause (b), Buyer and Seller shall
exchange the Buyer Closing Deliveries and the Seller Closing Deliveries at the
office of Morrison & Foerster LLP, 755 Page Mill Road, Palo Alto, California at
8:00 a.m. on June 20, 1997.
2. Opinion of General Counsel. Subject to the next sentence, the
condition set forth in Section 5.3 of the Agreement shall be deemed satisfied
notwithstanding that the opinion of Seller's General Counsel furnished to Buyer
at the Closing pursuant to Sections 5.3 and 2.6.2(i) of the Agreement expresses
no opinion as to the effect of the Complaint, Threat, Claim or Litigation,
provided that such opinion is otherwise in the form required by the Agreement.
Notwithstanding the foregoing, the agreement of the parties hereto set forth in
the previous sentence shall be limited solely and specifically to the
satisfaction of the condition set forth in Sections 5.3 and 2.6.2(i) of the
Agreement, and nothing in the previous sentence shall (a) limit, impair or
otherwise affect, in any matter whatsoever, any representation, warranty,
covenant or obligation (other than solely as provided in the first sentence of
this Section 2) of Seller set forth
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in the Agreement, including, without limitation, any such representation,
warranty, covenant or obligation (or any breach thereof by Seller) as the same
relates to the Complaint, Threat or Litigation, or (b) constitute or be deemed
to constitute a waiver by Buyer of any of its rights or remedies under the
Agreement, at law or in equity (including, without limitation, any claim based
on fraud), with respect to the breach of any representation, warranty, covenant
or obligation (other than as provided in the first sentence of this Section 2)
of Seller under the Agreement, including, without limitation, any of such rights
or remedies arising out of the Complaint, Threat or Litigation, all of which
rights and remedies are specifically reserved by Buyer,
notwithstanding the execution of this Amendment or any documents executed by
Buyer and Seller in connection with or with respect to the Complaint, Threat or
Litigation.
3. Assets Purchased. Section 2.1 of the Agreement is hereby amended
to add the following as Section 2.1(j):
"(j) Infringement Claims. All claims, damages (including, without
limitation, past damages), choses-in-action, rights in action, rights
to collect or receive royalties, and other rights, accruing with
respect to facts and circumstances first occurring prior to the
Closing, held by Seller or its Subsidiaries, based on any infringement
of any patents or patent applications included in the TFS Intellectual
Property (collectively, the "Infringement Claims")."
4. Asset Not Purchased. Section 2.2 of the Agreement is hereby
amended to add thereto, immediately following the phrase "any claims or rights
against third parties" set forth in Section 2.2(f), the following:
", except for the Infringement Claims,"
5. Modifications to Schedule 2.1(e). Seller and Buyer agree that
Schedule 2.1(e) to the Acquisition Agreement shall be amended to (a) add the
following patent to such Schedule: U.S. patents numbers 4522845 and 4761218 (and
foreign counterparts thereof); and (b) delete the following patent from such
Schedule: U.S. patent number 4671204 (and foreign counterparts thereof).
6. Obligation to Transfer Certain Patents. Following the Closing,
Seller agrees to transfer to Buyer the following patents (and any corresponding
foreign patents or any divisions, continuations or extensions thereof): U.S.
Patent No. 5314597, titled "Sputtering Apparatus with a Magnet Array Having a
Symmetry for a Specified Target Erosion Profile" and U.S. Patent No. 5252194,
titled "Rotating Sputtering Apparatus for Selected Erosion" (the "Additional
Post- Closing Patents"). Following the Closing, Buyer and Seller shall negotiate
in good faith as to the present value, as of the Closing, of any royalties
agreed by licensees of Seller as to the Additional Post-Closing Patents as of
the Closing to be paid after the Closing with respect to the Additional
Post-Closing Patents ("Existing Royalty Obligations"). In the event that Buyer
and Seller shall agree as to such present value, Seller shall transfer and
assign the Additional Post-Closing Patents to Buyer by its execution and
delivery of a form of Assignment of Patents in substantially the form of Exhibit
2.6.2(c) to the Acquisition Agreement upon Seller's receipt of
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payment by wire transfer from Buyer of the agreed dollar amount of such present
value. In the absence of such agreement within sixty (60) days of the Closing,
Buyer shall have the right at any time thereafter to require Seller to so
transfer and assign the Additional Post-Closing Patents against Buyer's written
agreement, in form and substance reasonably satisfactory to Seller, to pay and
remit to Seller all payments received after the date of such assignment with
respect to the Existing Royalty Obligations within thirty (30) days of Buyer's
receipt thereof. Upon any such transfer and assignment, the Additional
Post-Closing Patents shall become TFC Intellectual Property for purposes of the
Acquisition Agreement and the Cross-License Agreement and cease to be Retained
Intellectual Property for purposes of the Cross-License Agreement.
7. Dispute Resolution. Any dispute, controversy or claim between the
parties relating to, or arising out of or in connection with, this Amendment (or
any subsequent agreement or amendments thereto), including as to its existence,
enforceability, validity, interpretation, performance, breach or damages,
including claims in tort, whether arising before or after the termination of
this Amendment, shall be resolved exclusively as set forth in Section 13.8 of
the Agreement.
8. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed in the State of California by California
residents.
9. Interpretation. Capitalized terms contained in this Amendment
and not defined in this Amendment shall have the meanings assigned to them in
the Agreement,
10. Severability. If any provision of this Amendment is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Amendment shall be deemed valid and
enforceable to the fullest extent possible.
11. Entire Agreement. This Amendment is hereby made supplemental to
and a part of the Agreement and, except as expressly amended by this Amendment,
the Agreement is in all respects ratified and confirmed and all terms,
conditions and provisions of the Agreement shall remain in full force and
effect. This Amendment contains the entire understanding and agreement between
the parties hereto as to the subject matter of this Amendment and supersedes any
and all prior negotiations, correspondence, understandings or agreements between
the parties respecting the subject matter of this Amendment.
12. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed to be an original but both of which when taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
VARIAN ASSOCIATES, INC., NOVELLUS SYSTEMS, INC.,
a Delaware corporation a California corporation
By: /s/ Richard A. Aurelio By: /s/ Robert H. Smith
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Name: Richard A. Aurelio Name: Robert H. Smith
Title: Executive Vice President Title: Executive Vice President
and Chief Financial Officer
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