EXHIBIT 10.1
AMENDMENT NO. 2 TO PARTNERSHIP INTEREST AND SHARE
PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO PARTNERSHIP INTEREST AND SHARE PURCHASE
AGREEMENT (this "Amendment") is entered into as of September 15, 1998 by and
among Trikon Technologies, Inc., a California corporation (the "Company"), SBIC
Partners, L.P., a Texas limited partnership ("SBIC"), Norwest Equity Partners, a
Minnesota Limited Partnership ("Norwest"), and R&M Partners/CVD, G.P., a
California general partnership ("R&M") (collectively, the "Buyers").
RECITALS:
A. WHEREAS, the Company and the Buyers entered into a Partnership
Interest and Share Purchase Agreement, dated as of June 20, 1997, and amended
such agreement pursuant to Amendment No. 1 to Partnership Interest and Share
Purchase Agreement, dated as of December 12, 1997 (as amended, the "Purchase
Agreement").
B. WHEREAS, the Company and the Buyers desire to terminate certain
provisions of the Purchase Agreement in exchange for shares of common stock of
the Company.
C. WHEREAS, the Purchase Agreement provides that no amendment,
modification, termination or waiver of any provision of the Purchase Agreement
shall be effective unless the same shall be in writing and signed by each party
thereto.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree to amend the Purchase Agreement pursuant to Section 7.7 of the
Purchase Agreement as follows:
ARTICLE 1
AMENDMENTS TO PURCHASE AGREEMENT
Effective as of the Closing (as defined below), Articles 1 through 6
of the Purchase Agreement shall be deleted in their entirety.
ARTICLE 2
RELEASE AND SALE OF THE INTERESTS
2.1 Purchase and Sale of Shares of Common Stock. In consideration of
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the amendments to the Purchase Agreement in Article 1 and the releases in
Article 6, upon the terms and subject to the conditions contained herein and in
reliance on the representations and warranties set forth below, at the Closing,
the Company agrees to issue to each Buyer the following number of shares of
Common Stock, no par value ("Common Stock"), of the Company (collectively, the
"Shares"):
Buyer Shares of Common Stock
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SBIC 141,247
Norwest 141,247
R&M 17,505
1.2 Closing. Following satisfaction of the conditions set forth in
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Article 5, the closing of the sale of the Shares (the "Closing") shall occur at
the offices of Xxxxxxx, Xxxxxxx & Xxxxxxx LLP in San Francisco at 10:00 a.m.
Pacific Daylight Time on the fifth business day following the date of this
Amendment or at such other place or on such other date as the parties hereto may
designate (the "Closing Date"). At the Closing, the Company shall deliver to
each Buyer a certificate or certificates registered to such Buyer, representing
the number of shares of Common Stock set forth opposite such Buyer's name in
Section 2.1 hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents, warrants and covenants to each Buyer that,
except as set forth in Schedule 3 attached hereto:
3.1 Organization. The Company is a corporation duly organized,
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validly existing and in good standing under the laws of the State of California.
3.2 Authority, Authorization and Enforceability. The Company has all
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requisite corporate power and authority to enter into this Amendment and to
consummate the transactions contemplated by this Amendment. The execution and
delivery of this Amendment and the consummation of the transactions contemplated
by this Amendment have been duly authorized by all necessary corporate action on
the part of the Company. This Amendment has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
3.3 Shares Validly Issues. Upon issuance pursuant to the terms
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hereof, the Shares will be duly authorized and validly issued, fully paid and
nonassessable.
3.4 Company SEC Filings. The Company has furnished, or made
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available through the XXXXX internet web site of the Securities and Exchange
Commission (the "Commission") to the Buyers true and complete copies of its
Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and its
quarterly report[s] on Form 10-Q for the quarter[s] ended March 31, 1998 [and
June 30, 1998], in each case as filed with the Commission (such documents are
hereinafter collectively referred to as the "SEC Filings"). As of their
2.
respective filing dates, the SEC Filings complied in all material respects with
the applicable requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and none of the SEC Filings contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF EACH BUYER
Each Buyer, severally and not jointly, represents and warrants to the
Company on its own behalf as follows:
4.1 Investment Intent. Such Buyer is acquiring its portion of the
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Shares for investment purposes only, for its own account, and not as nominee or
agent for any other person, firm or corporation and not for resale in connection
with any distribution or public offering thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
4.2 Unregistered Securities. Such Buyer understands that the Shares
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have not been registered under the Securities Act, and that, accordingly, such
securities will not be transferable except pursuant to an exemption from the
registration and prospectus delivery requirement of the Securities Act or upon
satisfaction of such requirement. Such Buyer further acknowledges and agrees
that the certificates evidencing such Shares and each certificate issues in
exchange thereof shall bear substantially the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE BLUE SKY LAWS, AND ARE
SUBJECT TO CERTAIN INVESTMENT REPRESENTATIONS. THESE SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT, AND SUCH APPLICABLE BLUE SKY LAWS, OR AN
EXEMPTION THEREFROM."
4.3 Sophistication and Knowledge. Such Buyer represents to the
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Company that it is an "accredited investor" (as such term is defined in Rule 501
of Regulation D under the Securities Act) and that, by reason of its business
and financial experience, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of an investment in the Shares and is able to bear the economic risk of
such investment. Such Buyer acknowledges that it has been given the reasonable
opportunity to ask questions and receive answers from the Company concerning the
terms and conditions of the transactions contemplated hereby and the accuracy of
the information contained in any document provided to such Buyer by the Company.
4.4 Authorization and Enforceability. All action on the part of such
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Buyer necessary for the performance of such Buyer's obligations hereunder has
been taken or will be taken prior to the Closing Date. This Amendment has been
duly executed and delivered by such Buyer and constitutes a legal, valid and
binding obligation thereof, enforceable against it in accordance with its terms,
except to the extent that such enforceability may be limited by
3.
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or by general equitable principles.
4.5 Transfer. Such Buyer has not transferred Registrable Shares (as
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defined in the Purchase Agreement) to any other person (other than any
subsequently holder who acquires such securities in a public sale, such that
such securities are no longer deemed "restricted securities" within the meaning
of Rule 144 under the Securities Act).
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligations. The respective
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obligations of each party to effect the transactions contemplated by this
Amendment shall be subject to the conditions that no federal or state
governmental authority or other agency or commission or federal or state court
of competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, injunction or other order (whether
temporary, preliminary, or permanent) which is in effect and has the effect of
prohibiting consummation of the transactions contemplated by this Amendment.
5.2 Conditions to the Obligations of the Company. The obligation of
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the Company to effect the transactions contemplated by this Amendment shall be
subject to the fulfillment at or prior to the Closing Date of the additional
condition that the representations and warranties of the Buyers contained in
this Amendment shall be true and correct in all material respects at and as of
the Closing Date as if made at and as of such date, except to the extent that
any such representation or warranty is made as of a specified date in which case
such representation or warranty shall have been true and correct in all material
respects as of such date.
5.3 Conditions to the Obligations of the Buyers. The obligations of
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the Buyers to effect the transactions contemplated by this Amendment shall be
subject to the fulfillment at or prior to the Closing Date of the additional
condition that the representations and warranties of the Company contained in
this Amendment shall be true and correct in all material respects at and as of
the Closing Date as if made at and as of such date, except to the extent that
any such representation or warranty is made as of a specified date in which case
such representation or warranty shall have been true and correct in all material
respects as of such date.
ARTICLE 6
RELEASE
6.1 Mutual Release. Effective as of the Closing, in consideration of
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the issuance of the Shares hereunder and the agreements herein, each Buyer, on
behalf of such Buyer and all of its owners, partners, officers, directors,
employees, shareholders, affiliates, related entities, assigns and successors,
and each and every agent, insurer and attorney of any of the foregoing, and all
persons acting by, through, under or in concert with any of them (collectively,
the "Buyer Parties"), hereby irrevocably, finally and unconditionally releases,
relieves, acquits and forever discharges each of the Company and the Company's
subsidiaries (direct and
4.
indirect), officers, directors, employees, shareholders, affiliates, related
entities, assigns and successors, and each and every agent, insurer and attorney
of any of the foregoing, and all persons acting by, through, under or in concert
with any of them (collectively, the "Company Parties"), and each of the Company
Parties hereby irrevocably, finally and unconditionally releases, relieves,
acquits and forever discharges each of the Buyer Parties from and against any
and all liabilities, claims, demands, obligations, damages, expenses (including
attorneys' fees and costs actually incurred) and causes of action at law or in
equity, of any nature, known or unknown, which such Buyer Party or Company
Party, as applicable, now owns or holds, has at any time heretofore owned or
held, or may any time hereafter own or hold, by reason of any agreement,
representation, warranty, statement, act, event or omission which existed or
occurred, or failed to occur, prior to the date of this Amendment, arising from
or relating in any way whatsoever to the Purchase Agreement.
6.2 Waiver of Unknown Claims. Effective as of the Closing, each
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Buyer and the Company expressly waives and relinquishes all rights and benefits
afforded by Section 1542 of the Civil Code of the State of California ("Section
1542"), and any statute, rule or regulation of any other relevant jurisdiction
similar in nature to Section 1542, and do so understanding and acknowledging the
significance of such specific waiver of Section 1542 and such other statute,
rule or regulation. Section 1542 of the Civil Code of the State of California
states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Thus, notwithstanding the provisions of Section 1542 and any statute,
rule or regulation of any other relevant jurisdiction similar in nature to
Section 1542, and for the purpose of implementing a full and complete release
and discharge of all those released by this Amendment, each of the Buyers and
the Company expressly acknowledges that this Amendment is intended to include in
its effect, without limitation, all claims which such party does not know or
suspect to exist in its favor at the time of execution hereof, and that this
Amendment contemplates the extinguishment of any such claims.
Each of the parties hereto acknowledge that they have expressly
bargained for the foregoing waiver of the provisions of Section 1542 and any
statute, rule or regulation of any other relevant jurisdiction similar in nature
to Section 1542.
6.3 Waiver. Effective as of the Closing, pursuant to Section 7.7 of
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the Agreement, Buyers hereby expressly waive any breach of Article 6 of the
Purchase Agreement occurring prior to the effectiveness hereof.
5.
ARTICLE 7
MISCELLANEOUS
7.1 Reference to and Effect on the Purchase Agreement.
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(a) Upon the effectiveness of Article 1 hereof, on and after the
date hereof each reference in the Purchase Agreement to "this Agreement," "the
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be a reference to the Purchase Agreement as amended by Article 1 hereof.
(b) Except as specifically amended above, the Purchase Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
7.2 Expenses. Each party shall pay all costs and expenses that it
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incurs with respect to the negotiation, execution, delivery and performance of
this Amendment and any related agreements.
7.3 Survival. The representations and warranties set forth herein
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shall survive the Closing for one year.
7.4 Parties in Interest. All of the terms and provisions of this
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Amendment shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto.
7.5 Governing Law. This Amendment shall be governed by and construed
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in accordance with the laws of the State of California.
7.6 Counterparts. This Amendment may be executed in one or more
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counterparts with the same effect as if all parties hereto had signed the same
document. All counterparts so executed shall be deemed to be an original, shall
be construed together and shall constitute one agreement.
6.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first written above.
COMPANY: TRIKON TECHNOLOGIES, INC.
Xxxxxxxx Xxx
Xxxxxxx, Xxxxx XX0 0XX
Xxxxxx Xxxxxxx
Fax: 000 000 000 000 000
By: ___________________________________________
Name:
Title:
BUYERS: SBIC PARTNERS, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
By: Xxxxxxx Xxxxxxx & Xxxxx X.X.,
General partner
By: Xxxxxxx Xxxxxxx & Xxxxx Venture Co.,
General Partner
By: __________________________________
Xxxxxxx X. Xxxxx
Office of the President
[Signatures continued on following page]
7.
[Signatures continued from previous page]
NORWEST EQUITY PARTNERS, V
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
By: Itasca Partners V, L.L.P.
General Partner
By: _______________________________________
Xxxxx X. Xxxx
Partner
R&M PARTNERS/CVD, G.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
By: ____________________________________________
Name:
Title:
8.
