Exhibit 2.3(b)
SECOND AMENDMENT TO
STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT dated as of June 15, 1999
is entered into by and between Lattice Semiconductor Corporation, a Delaware
corporation ("Buyer"), and Advanced Micro Devices, Inc., a Delaware corporation
("Seller"). Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings assigned to them in the Stock Purchase Agreement,
dated as of April 21, 1999, by and between Buyer and Seller, as amended by the
First Amendment to Stock Purchase Agreement dated as of June 7, 1999 (as
amended, the "Stock Purchase Agreement").
RECITALS
A. Seller and Buyer entered into the Stock Purchase Agreement, whereby
Seller has agreed to sell, and Buyer has agreed to purchase, all of the issued
and outstanding capital stock of Vantis Corporation ("Vantis").
B. Seller and Buyer desire to amend certain terms of the Stock Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. AMENDMENTS
a. The fifth sentence of Section 1.2 of the Stock Purchase
Agreement, describing the calculation of the Company Per Share Value, is
hereby amended and restated as follows:
"The Company Per Share Value shall equal the quotient determined
by dividing the Estimated Purchase Price (as defined in Section
1.4) by the fully diluted number of shares of Company common
stock outstanding immediately prior to the close of this
transaction (reflecting all shares subject to Company Options
(but excluding any shares subject to Company Options granted
after April 21, 1999)), without applying the treasury method."
b. The final sentence of Section 1.2 of the Stock Purchase Agreement
is hereby amended and restated as follows:
"As soon as reasonably practicable, but in no event more than 90
days after the Closing Date, Buyer will issue to each person who
immediately prior to the Closing Date was a holder of Company
Options a document evidencing the foregoing assumption of such
option by Buyer."
1
c. Section 1.3 of the Stock Purchase Agreement is hereby amended by
deleting Section 1.3 in its entirety and replacing it with the following:
"The Closing. The Closing shall take place at the offices of
Wilson, Sonsini, Goodrich & Rosati, 650 Page Mill Road, Palo
Alto, California 94304-1050 on June 15, 1999, or as soon as
practicable after all conditions specified in Articles VI, VII
and VIII have been satisfied or waived in accordance with this
Agreement, but not later than the fifth business day following
the date that all conditions specified in Articles VI, VII and
VIII have been satisfied or waived in accordance with this
Agreement, or at such other place or on such other date as Seller
and Buyer may mutually agree."
d. The heading of Section 5.2 of the Stock Purchase Agreement is
hereby amended to read "No Rights to Seller Intellectual Property and
Limited Trademark License."
e. Section 5.2 of the Stock Purchase Agreement is hereby amended to
insert an "(a)" immediately prior to the text thereof
f. Section 5.2 of the Stock Purchase Agreement is hereby amended to
add new Section 5.2(b) as follows:
"(b) Seller hereby grants to Company and Buyer, for the period
beginning on the Closing Date and ending on the last day of the
fifteenth month following the Closing Date, a worldwide, non-
exclusive, non-transferable license under the Transition
Trademarks (as defined below) to use such trademarks in
connection with documentation, collateral materials, packaging
and sale of Transition Products (as defined below) in
substantially the same manner that such trademarks were used by
the Seller or Company prior to the Closing; provided, however,
that no Transition Trademark shall be used in public advertising
of any product, service or entity. Company shall maintain the
quality of the goods with which such trademarks are used at the
level maintained by Company or Seller prior to Closing. Without
limiting the foregoing, neither Buyer nor Company shall use the
Transition Trademarks in a manner that detracts from the goodwill
associated with the use of such trademarks or in a manner
contrary to the reasonable instructions of Seller. All goodwill
associated with the use of such Transition Trademarks shall inure
to the benefit of Seller. Buyer and Company agree to use
commercially reasonable efforts to obtain or to effect customer
qualifications of the Transition Products to remove the
Transition Trademarks. For the purposes of this Section 5.2(b),
(A) "Transition Products" means all products sold, offered for
sale, or provided by Company prior to the
2
Closing including all such products in the Company's inventory as
of the Closing Date, and (B) "Transition Trademarks" means all
trademarks, logos, graphics, and trade dress of Seller used by
Company prior to the Closing Date in connection with the
marketing, sale, promotion and packaging of the Transition
Products, other than those which are transferred to Company.
Buyer shall indemnify and hold harmless Seller against any Loss
arising out of any warranty or product liability claims asserted
against Seller with respect to Transition Products sold by
Company or Buyer after the Closing Date resulting from Buyers or
Company's use of the Transition Marks, except to the extent that
such claim arises from a breach by Seller or Company of any
representation or warranty hereunder. The indemnity provided in
this Section 5.2 shall be subject to Sections 10.3 and 10.4 of
this Agreement but not the other provisions of Article X."
g. Section 5.8 of the Stock Purchase Agreement is hereby amended by
adding a new sentence at the end of such Section, which shall read as
follows:
"Notwithstanding any provision of this Agreement to the contrary,
the lease identified as Item 1 to Schedule 5.8 (re "Premises at
985/995 Stewart Drive, Sunnyvale, California") shall be assigned
immediately following the Closing Date pursuant to the Lease
Assignment and Assumption Agreement in the form attached hereto
as Exhibit 5.8(a)."
h. Section 5.14 of the Stock Purchase Agreement is hereby amended by
deleting clause (a) of Section 5.14 and replacing it with the following:
"(a) Seller shall continue to use its best efforts to obtain such
Approval from and after the Closing, subject (in the case of
software licenses) to the Limit, as set forth in Section
5.16(c)."
i. Section 5.16 of the Stock Purchase Agreement is hereby amended by
deleting Section 5.16(a) in its entirety and replacing it with the
following:
"(a) This Section 5.16 does not apply to Intellectual Property or
trade secrets, except that this Section 5.16 does apply to the
Intellectual Property of the type described in clause (i)(B) or
(i)(C) of Section 2.8(b) (the "Applicable Intellectual Property")
identified on the Schedule to clause (i) of Section 2.8(b) and
the Applicable Intellectual Property referred to in the board
resolutions identified in Section 5.16(b)(i) (or the attachments
thereto) and the unregistered trademarks listed on the Schedule
to clause (i) of Section 2.8(b).
j. Section 5.16 of the Stock Purchase Agreement is hereby amended by
deleting Section 5.16(c) in its entirety and replacing it with the
following:
"(c) To the extent any Other Business Assets have not been
assigned and transferred prior to Closing, Seller shall take such
additionally
3
commercially reasonable actions after the Closing to effect such
assignments and transfers as are reasonably requested by Buyer
(or, in the case of any third party software licenses, replace
such license); provided, however, that with respect to the
transfer and assignment of any third party software licenses
contemplated by this Section 5.16 or Section 5.14(a), or
otherwise necessary or used to conduct the Business (unless only
necessary or used to conduct the bi-polar programmable logic
device business) as conducted prior to the Closing (but without
reliance on the rights of Seller or any of its Affiliates, other
than the Company) (collectively, "Third Party Licenses"), Seller
shall use commercially reasonable actions after the Closing to
effect such assignments and transfers (or replace the licenses
with substantially similar licenses). Buyer may make arrangements
for the transfer or assignment of Third Party Licenses (or the
replacement thereof with substantially similar licenses) and
Seller shall reimburse Buyer any sums paid to third party
licensors for such transfers, assignments and replacements;
provided that this sentence shall not apply to the EDA Software
licenses from Cadence Design Systems, Inc. (the "Cadence
Licenses"). Notwithstanding the foregoing, Seller shall not be
obligated to pay to third party licensors and/or reimburse Buyer
amounts (other than amounts in respect of the Cadence Licenses)
in excess of $800,000 in the aggregate for all such assignments,
transfers, replacements or reimbursements (the "Limit"). In
addition, Seller's obligations to expend sums for the assignment,
transfer or replacement of Third Party Licenses shall terminate
on the first anniversary of the Closing Date. Payments made by
Seller to licensors for the assignment, transfer or replacement
of Third Party Licenses, which are subject to the Limit, shall
not be made without the consent of Buyer, which consent shall not
be unreasonably withheld."
k. Section 5.16(d) of the Stock Purchase Agreement is hereby amended
by deleting Section 5.16(d) in its entirety and replacing it with the
following:
"(d) Subject to the limitations set forth in Section 5.16(c), the
assignments and transfers pursuant to this Section 5.16 shall be
at no cost to Buyer, Company or their respective subsidiaries and
Affiliates; provided, however, that the transfer by Seller and
purchase by Company of certain leasehold improvements at Stewart
Drive, Sunnyvale, California at or prior to the Closing shall
take place for $3,768,000."
l. Section 5.16 of the Stock Purchase Agreement is hereby amended by
adding a new Section 5.16(e) immediately after Section 15.16(d), which
shall read in its entirety as follows:
"(e) Seller will execute or cause its controlled Affiliates to
execute, if applicable, all such further assignments and other
documents as are reasonably requested by Buyer to give effect to,
record and evidence any assignments and transfers required to be
made pursuant hereto or
4
Section 5.15 at no cost to Buyer, Company or their respective
subsidiaries and Affiliates."
m. Section 13.2 of the Stock Purchase Agreement is hereby amended by
deleting the penultimate sentence of the definition of "Agreed Accounting
Principles" and inserting in lieu thereof the following:
"Except for the purchase of certain leasehold improvements
contemplated by the proviso of Section 5.16(d), which shall be
valued at $3,768,000, assets contributed to Company or any
Subsidiary by Seller or any of its controlled Affiliates after
the date hereof will be valued at zero."
n. Section 13.2 of the Stock Purchase Agreement is hereby amended by
deleting the first sentence of the definition of "Business" which reads
"`Business' means the business of Company and the Subsidiaries taken as a
whole, and shall be deemed to include the following incidents of such
business: income, cash flow, operations, condition (financial or other),
assets, properties, revenues and liabilities" and replacing it with the
following:
"'Business' means the business of Company and the Subsidiaries
taken as a whole (including the bi-polar programmable logic
device business of Seller, whether or not previously included in
the business of the Company and the Subsidiaries), and shall be
deemed to include the following incidents of such business:
income, cash flow, operations, condition (financial or other),
assets, properties, revenues and liabilities."
o. Section 1.4 of the Stock Purchase Agreement is hereby amended by
deleting the second sentence of such Section which reads "Not later than
five business days prior to the Closing Date, Seller shall deliver to Buyer
a written notice setting forth Seller's good faith estimate (applying the
Agreed Accounting Principles) as of the Closing Date of the Closing Equity
Adjustment Amount (the "Estimated Closing Equity Adjustment Amount") and,
based thereon, Seller's calculation of the Estimated Purchase Price, which
shall be binding on Buyer and Seller as the Estimated Purchase Price
hereunder absent manifest error" and replacing it with the following:
"Not later than five business days prior to the Closing Date,
Seller shall deliver to Buyer a written notice setting forth
Seller's good faith estimate (applying the Agreed Accounting
Principles), which estimate shall be based upon a balance sheet
prepared as of a date no earlier than five days prior to the
Closing Date, of the Closing Equity Adjustment Amount (the
"Estimated Closing Equity Adjustment Amount") and, based thereon,
Seller's calculation of the Estimated Purchase Price, which shall
be binding on Buyer and Seller as the Estimated Purchase Price
hereunder absent manifest error."
5
2. Miscellaneous
a. Stock Purchase Agreement Otherwise Not Affected. Except as
expressly amended pursuant hereto, the Stock Purchase Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed in
all respects.
b. Amendment and Waivers. This Amendment may be amended only by an
agreement in writing executed on behalf of both Buyer and Seller. No waiver of
any provision nor consent to any exception to the terms of the Amendment shall
be effective unless in writing and signed by the party to be bound and then only
to the specific purpose, extent and instance so provided.
c. Integration. This Amendment constitutes the entire agreement
between the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the parties in connection therewith.
d. No Assignment. Neither this Amendment nor any rights or
obligations under it are assignable, except that Buyer may assign its rights,
but not its obligations, hereunder to any wholly owned subsidiary of Buyer.
Subject to the foregoing sentence, this Amendment is binding upon and inures to
the benefit of and is enforceable by the parties hereto and their respective
successors and permitted assigns.
e. Counterparts. This Amendment and any amendment hereto or any other
agreement or document delivered pursuant hereto may be executed in one or more
counterparts and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same agreement or other document and
shall become effective unless otherwise provided therein when one or more
counterparts have been signed by each party and delivered to the other party.
f. Severability. If any provision of this Amendment is determined to
be invalid, illegal or unenforceable by any Governmental Entity, the remaining
provisions of this Amendment shall remain in full force and effect provided that
the essential terms and conditions of this Amendment for both parties remain
valid, binding and enforceable. To the extent permitted by Law, the parties
hereby to the same extent waive any provision of Law that renders any provision
hereof prohibited or unenforceable in any respect.
g. Parties in Interest. Except as set forth in Article 10 of the
Stock Purchase Agreement with respect to Indemnified Parties, nothing in this
Amendment, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Amendment.
h. Governing Law. This Amendment, the legal relations between the
parties and any Action, whether contractual or non-contractual, instituted by
any party with respect to matters arising under or growing out of or in
connection with or in respect of this Amendment shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and performed in such State and without regard to conflicts of
law doctrines.
6
In Witness Whereof, each of Buyer and Seller has caused this Amendment
to be executed by its duly authorized representation as of the date first above
written.
BUYER:
LATTICE SEMICONDUCTOR CORPORATION,
a Delaware corporation
By: /s/ Steven A. Laub
----------------------------------
Name: Steven A. Laub
Title: Chief Operating Officer
SELLER:
ADVANCED MICRO DEVICES, INC.,
a Delaware corporation
By: /s/ Thomas M. McCoy
----------------------------------
Name: Thomas M. McCoy, Esq.
Title: Senior Vice President, General Counsel and
Secretary
7