EXECUTION VERSION
LETTER AGREEMENT
February 21, 1997
FEI Company,
0000 X.X. Xxxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxx 00000
Ladies and Gentlemen:
This is with reference to, and in connection with the Closing under,
the Combination Agreement, dated as of November 15, 1996 (the "Agreement"),
between Philips Industrial Electronics International B.V. ("PIE") and FEI
Company ("FEI"), including the Disclosure Schedule thereto (the "Disclosure
Schedule") as amended by a Letter Agreement dated November 22, 1996, between PIE
and FEI.
Capitalized terms used, but not defined, herein shall have the
respective meanings ascribed thereto in the Agreement.
1. PIE Loan. Section 1.1 of the Agreement is hereby amended by
replacing the words "as of January 1, 1997" at the end of the definition of "PIE
Loan" with the words "as of the Closing Date".
2. FEI Expenses. PIE and FEI hereby agree that subsequent to Closing
FEI will be able to allocate a portion of the $8,000,000 in cash included as
part of the PEO Assets pursuant to Section 6.3(f) of the Agreement in payment of
all costs and expenses of FEI and its subsidiaries referenced in Section 9.8 of
the Agreement in an amount not to exceed $2,500,000 and in such manner that such
costs and expenses shall not be reflected in FEI's profit and loss account.
3. Employee Agreements. As an inducement to FEI to proceed with the
Closing as scheduled on February 21, 1997 or as soon thereafter as practicable,
FEI and PIE agree that if one or more of the employment agreements referred to
in Section 6.3(e) of the Agreement shall not have been entered into before
Closing and FEI elects to waive the condition of Section 6.3(e) to that extent,
PIE will not, directly or indirectly, object to or prevent that employment
agreement or those employment agreements from being entered into by FEI after
the Closing with effect as of the Closing Date in substantially the form
attached as Annex 6.3(e) to
the Agreement and reflecting compensation amounts and vacation time consistent
with such employee's most recent compensation amounts and vacation accrual.
4. Service Agreements. Section 5.13 of the Agreement is hereby amended
by inserting the words "or as soon as practicable thereafter" immediately after
the words "prior to Closing" in the last sentence of subsection 5.13(d) thereof.
5. Intellectual Property. Section 5.16 of the Agreement is hereby
amended by replacing the words "shall grant" in subsection 5.16(a)(i) thereof
with the words "hereby grants at Closing" and by replacing the words "at
Closing" in the penultimate sentence of subsection 5.16(b)(i) thereof with the
words "as soon as practicable following Closing". FEI and PIE further agree that
pending the execution of definitive license agreements with respect to
trademarks to be entered into as soon as practicable following Closing, FEI
shall have the right to use Intellectual Property of Philips in a manner
contemplated by, and not inconsistent with, Section 5.16(b)(i) of the Agreement,
as amended hereby.
6. Reimbursement of Funds. FEI and PIE hereby agree that any cash
included in the PEO Assets at Closing pursuant to Section 6.3(e) of the
Agreement which is in excess of $8,000,000 shall promptly be reimbursed to PIE.
FEI shall cause PEO Holdings or its subsidiaries as appropriate to reimburse
such amounts to PIE on the first business day following Closing.
7. Distribution Agreements. Section 5.13(a) of the Disclosure Schedule
is hereby amended by deleting the following countries: India, Russia and South
Korea.
8. Acht Lease. Section 5.15(a) of the Agreement is hereby amended by
replacing the words "Prior to Closing" in the first sentence thereof with the
words "as soon as practicable after the Closing". Moreover, PIE and FEI hereby
agree that the annual rent for Year 2 to Year 10 of the lease for the Acht
Property shall reflect the fair market value of the Acht Property as determined
by agreement of PIE and FEI upon consultation of their respective advisors,
Xxxxx Xxxx Xxxxxx and Zadelhoff; provided that such annual rent shall be no less
than NLG 2,100,000 and no greater than NLG 2,650,000, increased annually to
reflect increases in the Consumer Price Index as published annually by the
Central Bureau of Statistics in The Netherlands.
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This letter agreement shall be governed by the laws of the State of New
York, without giving effect to the principles of conflicts of laws thereof.
This letter agreement may be executed by the parties on separate
counterparts which, when taken together with counterparts signed by the other
party, shall constitute a single fully executed amendment to the Agreement which
shall be as fully binding and effective as if each party had executed the same
copy.
Sincerely,
PHILIPS INDUSTRIAL ELECTRONICS
INTERNATIONAL B.V.
By: /s/ Xxxx X. Voorn
--------------------------------
Name: Xxxx X. Voorn
Title: Attorney-in-fact
pursuant to power of
attorney
For purpose of Section 5 only:
PHILIPS ELECTRONICS N.V.
By: /s/ Xxxx X. Voorn
--------------------------------
Name: Xxxx X. Voorn
Title: Attorney-in-fact
pursuant to power of
attorney
Agreed to and accepted this 21st day of February, 1997:
FEI COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name:
Title:
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