EXHIBIT 2.3
LETTER AGREEMENT
February 21, 1997
FEI Company,
0000 X.X. Xxxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxx 00000
Ladies and Gentlemen:
This is with the 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 the "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 the 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 the extend, 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 as 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.
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: 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: 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: XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Finanical Officer
