1
EXHIBIT 2.5
SHARED USE AGREEMENT
This Shared Use Agreement (this "Agreement"), dated for reference
purposes only as of May 7, 1997, is entered into by and between VARIAN
ASSOCIATES, INC., a Delaware corporation ("Seller"), acting on behalf of itself
and its subsidiaries, and NOVELLUS SYSTEMS, INC., a California corporation
("Buyer"), acting on behalf of itself and its subsidiaries, and shall be
effective as of the Closing Date (as defined in Section 2.6.1. of the Asset
Purchase Agreement dated as of May 7, 1997 (the "Asset Purchase Agreement"), by
and between Seller and Buyer). If the Asset Purchase Agreement shall terminate
pursuant to Section 12 thereof, this Agreement shall terminate concurrently
with the termination of the Asset Purchase Agreement. Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings set
forth in the Asset Purchase Agreement.
WITNESSETH
A. Pursuant to the Asset Purchase Agreement, Seller has agreed to sell
the Assets and the Business to Buyer.
B. The Assets may include the use of certain space (collectively, the
"TFS Space"), which is located in space leased or owned by Seller or its
subsidiaries (collectively, the "Seller Offices").
C. Seller and Buyer desire that Buyer should have the right to
continue to use the TFS Space in accordance with the terms and conditions of
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Right to Use. (a) Subject to the receipt by Seller of the TFS
Payments (as defined below) as and when due, Seller hereby agrees that during
the period from the Closing Date until Seller ceases leasing or owning any TFS
Space (except as provided below with respect to TFS Space located in Building
4a or Building 7 in Palo Alto, California (the "Palo Alto Property"))(in each
instance, the "Use Period"), Buyer shall have the right to continue using such
TFS Space to the same extent and for the same purposes that the Business used
such TFS Space as of the Closing Date. Provided, however, that, after the
Closing Date, Buyer shall be responsible for compliance with all Environmental
Laws applicable to its operations in such TFS Space and Seller shall have no
obligation to accept, treat or otherwise handle any Hazardous
Materials generated or used by Buyer. On or before the Closing Date, Seller
shall deliver to Buyer a schedule specifying the locations and square footage
of the TFS Space.
(b) Notwithstanding that Seller may continue to lease or own the
Palo Alto Property for a shorter or longer period, Buyer's right to continue to
use the Palo Alto Property shall be not less than 12 months and shall terminate
not later than 12 months after the Closing Date (the "End Date"); provided,
however, that Buyer shall have the right to continue to use the TFS Space in
Building 7 for 12 months beyond the End Date if, prior to the End Date, Buyer
completes
2
the construction, at Buyer's expense, of a separate entrance to the TFS Space
in Building 7 that is reasonably acceptable to Seller and sufficient for the
use of the TFS Space in Building 7.
2. Payments. Buyer hereby agrees to pay to Seller, at such
location or locations as Seller may from time to time designate in writing, on
the first day of each calendar month during the Use Period an amount calculated
on the same basis as costs were allocated to the Business as of the Closing
Date or based upon the percentage of the square feet in each Seller Office
occupied by the TFS Space located therein (the "TFS Payments"), whichever is
greater; provided that (i) the TFS Payment due the first month after the
Closing Date shall include a payment prorated based on the number of days
(including the Closing Date) remaining in the month from and including the
Closing Date, and (ii) the last TFS Payment due shall be prorated based on the
number of days remaining in the last month of the Use Period. On or before the
Closing Date, Seller shall deliver to Buyer a schedule specifying the estimated
monthly TFS Payments calculated in accordance with the above.
3. No Obligation to Continue Use. Seller shall have no
obligation to continue leasing, occupying, owning, or using any or all of the
Seller Offices. Subject to Section 4 below, Seller may elect, in its sole
discretion, to terminate its lease of, or ownership of, or cease occupying or
using, any Seller Office at any time, whether or not Seller's occupancy
agreement or lease with respect to any Seller Office has terminated or any
option periods or renewal or other rights remain with respect to any Seller
Office. Buyer may, from time to time, vacate any or all of the TFS Space upon
thirty (30) days prior written notice to Seller, and shall thereafter have no
obligation to pay TFS Payments with respect to such vacated TFS Space. Buyer
shall have no right to re-occupy any TFS Space that it has vacated.
4. Right of First Refusal. In the event Seller elects to
discontinue leasing or occupying any Seller Office, Seller shall give Buyer
notice of such election concurrently with any notice that Seller delivers to
the owner of such Seller Office. Buyer shall have a right of first refusal
with respect to obtaining an assignment of the lease, sublease or occupancy
agreement to Buyer, to the extent such assignment is permitted under the lease,
sublease or occupancy agreement, and applicable law, provided that Buyer shall
not be required to pay any amounts to Seller, as consideration or otherwise,
for such assignment, subject to the condition that Seller shall be released
from all then unaccrued obligations under the lease, sublease or occupancy
agreement. In the event Seller elects to sell a Seller Office owned by Seller,
Seller shall give forty-five (45) days notice to Buyer of such election, which
shall include the terms offered to prospective purchasers of the Seller Office.
Buyer shall have a right of first refusal to purchase the Seller Office on the
same terms as offered to a prospective purchaser, to the extent such purchase
by Buyer is permitted under applicable law, and provided that Buyer notifies
Seller of such intent, in writing, within such forty-five (45) day period.
Notwithstanding the foregoing, the rights of first refusal granted to Buyer in
this Section 4 shall be subject to any other rights of first refusal previously
granted by Seller. The provisions of this Section 4 shall not apply to the
Palo Alto Property.
5. Further Assurances. Each party hereto agrees to cooperate
fully with the other and to execute such further instruments, documents, and
agreements, to give such further written assurances as may be reasonably
requested by the other to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and
purposes of this Agreement, including, without limitation, to obtain any
necessary or appropriate
2
3
consents from landlords or property owners of any Seller Office or TFS Space,
or to execute separate subleases or new leases with respect to any TFS Space if
required by law or contractual obligation or if beneficial (for both parties)
for tax and accounting purposes.
6. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective heirs, legal representatives, successors
and assigns of the parties hereto. The words "Seller" and "Buyer," wherever
used herein, shall include the persons and entities named herein and designated
as such and their respective heirs, legal representatives, successors, and
assigns.
7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into by and wholly performed in the State of California by
California residents.
8. ARBITRATION OF DISPUTES. Any dispute, controversy, or claim
between the parties relating to, arising out of, or in connection with this
Agreement (or any subsequent agreements 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 Agreement, shall be settled in accordance with Section 13.8
of the Asset Purchase Agreement.
"NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR
JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL. UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED
IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT
TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE
FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT THE MATTERS INCLUDED IN THE
'ARBITRATION OF DISPUTES' PROVISIONS TO NEUTRAL ARBITRATION".
Seller [SIG]
-----------------------
Buyer: [SIG]
-----------------------
9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be a valid and binding original, but all of
which together shall constitute one and the same instrument. The signature page
and acknowledgment of any counterpart may be removed therefrom and attached to
any other counterpart to evidence execution thereof by all of the parties
hereto without affecting the validity thereof.
3
4
10. Attorney's Fees. If any action is brought to enforce or interpret
the provisions of this Agreement, the prevailing party in such action shall be
awarded its attorneys' fees and costs incurred. "Prevailing party" shall be as
defined in California statutory law.
11. Entire Agreement, Miscellaneous. This Agreement expresses the
full and complete understanding of the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous proposals, agreements,
representations and understandings, whether written or oral, with respect to the
subject matter. This Agreement may not be amended or modified except in writing
signed by each of the parties to the Agreement. This Agreement shall be
construed as to its fair meaning and not strictly for or against either party.
The headings hereof are descriptive only and not to be construed in interpreting
the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed and entered into
this Agreement as of the date first above written.
Seller:
VARIAN ASSOCIATES, INC.
By: /s/ [SIG]
-----------------------------
name: Robert A. Lemos
Title: Vice President, Finance and
Chief Financial Officer
Buyer:
NOVELLUS SYSTEMS, INC.
By: /s/ [SIG]
------------------------------
Name: John Chenault
Title: Executive Vice President,
Operations
4