EXHIBIT 15
EXECUTION COPY
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of July 11, 2002 (this "Agreement") among
FEI Company, an Oregon corporation ("FEI"), Koninklijke Philips Electronics
N.V., a company incorporated under the laws of the Netherlands ("Philips"), and
Philips Business Electronics International B.V., a company incorporated under
the laws of the Netherlands and formerly known as Philips Industrial Electronics
International B.V. ("PBE" and, collectively with FEI and Philips, the
"Parties").
WHEREAS, FEI and PBE are party to a Combination Agreement, dated as of
November 15, 1996 (the "Combination Agreement"); and
WHEREAS, the Parties are party to an Agreement, dated as of December
31, 2000 (the "Disposition Agreement"); and
WHEREAS, Veeco Instruments Inc., a Delaware corporation, Venice
Acquisition Corp., an Oregon corporation, and FEI have entered into an Agreement
and Plan of Merger, dated as of July 11, 2002 (the "Merger Agreement"), which
provides that, on the terms and subject to the conditions set forth therein,
Venice Acquisition Corp. shall be merged with and into FEI (the "Merger") at the
Effective Time, as defined therein (the "Effective Time"); and
WHEREAS, the Parties each desire to amend the Combination Agreement and
the Disposition Agreement so as to facilitate the consummation of the Merger and
the other transactions contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the Parties agree as follows:
ARTICLE I
Amendments and Other Matters
1.01 Amendment to the Disposition Agreement. The Disposition Agreement
is hereby amended, effective as of the Effective Time, to delete Sections
1(b)(v) and 5 therefrom. This Agreement shall not constitute an amendment to the
Disposition Agreement unless the Effective Time occurs.
1.02 Amendment to the Combination Agreement. The Combination Agreement
is hereby amended, effective as of the Effective Time, to delete Section 5.16(e)
therefrom, it being understood that this amendment shall not modify or alter the
validity or scope of any cross-licensing, pooling or other patent sharing or
licensing arrangements entered into prior to the date of this Agreement. This
Agreement shall not
constitute an amendment to the Combination Agreement unless the Effective Time
occurs.
1.03 Development Agreement. Philips shall take all action necessary to
cause Philips Machinefabriken Nederland B.V. ("ETG") promptly and irrevocably to
waive its rights pursuant to Section 10.3 of the Development Agreement, dated as
of January 23, 1998, between ETG and FEI, in respect of the Merger.
ARTICLE II
Miscellaneous
2.01 Headings. The headings, titles and subtitles contained in this
Agreement are used for convenience only and shall not be considered in
construing or interpreting this Agreement.
2.02 Specific Performance and Other Equitable Rights. Each of the
Parties recognizes and acknowledges that a breach by a Party of any covenants or
other commitments contained in this Agreement will cause the other Parties to
sustain injury for which they would not have an adequate remedy at law for money
damages. Therefore, each Party agrees that in the event of any such breach, the
aggrieved Party or Parties shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
it or they may be entitled, at law or in equity, and the Parties further agree
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
2.03 Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the Party for whom it is intended or delivered
by registered or certified mail, return receipt requested, or if sent by
telecopier, upon receipt of oral confirmation that such transmission has been
received, to such Party at the address set forth below:
(a) if to FEI, addressed as follows:
Xxxxxxx X. Xxxxx
c/o FEI Company
0000 X.X. Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-2-
with a copy to:
Xxxxx X. Xxxxxxx
c/o Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
(b) if to Philips or PBE, addressed as follows:
Xxxxx Xxxxxxx
x/x Xxxxxxx Xxxxxxxxxxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxxxx X000-0
Xxxx. Xxxxxxxxx 0
0000XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: x00 (00) 000-0000
Telecopier: x00 (00) 000-0000
with a copy to:
Xxxxxxx X. Xxxx
c/o Sullivan & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000,
or to such other address as the relevant Party may from time to time advise by
notice in writing given pursuant to this Section 2.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
2.04 Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the Parties and their respective successors, assigns,
officers, directors, partners, agents, underwriters and controlling persons or
entities. Nothing in this Agreement, express or implied, is intended to confer
upon any person or entity other than the Parties, or their successors or
assigns, any rights or remedies under or by reason of this Agreement.
2.05 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this
-3-
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
2.06 Assignment. No Party may assign any of its rights or obligations
under this Agreement without the prior written consent of each of the other
Parties, and any such purported assignment shall be null and void.
2.07 Governing Law; Jurisdiction; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable New York
principles of conflicts of law). The Parties unconditionally and irrevocably
agree and consent to the exclusive jurisdiction of, and service of process and
venue in, the United States District Court and the courts of the State of New
York located in the County of New York, State of New York, and waive any
objection with respect thereto, for the purpose of any action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby and further agree not to commence any such action, suit or
proceeding except in any such court. Each Party irrevocably waives any
objections or immunities to jurisdiction to which it may otherwise be entitled
or become entitled (including sovereign immunity, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or relating to this Agreement or the
transactions contemplated hereby which is instituted in any such court.
2.08 Entire Agreement; Amendments. This Agreement contains the entire
understanding of the Parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings among the Parties with
respect to its subject matter. This Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument
duly executed by each of the Parties, which shall be binding on all of the
Parties.
2.09 Further Assurances. Each Party shall provide (at the expense of
the requesting Party) such further documents or instruments reasonably requested
by any other Party as may be necessary or desirable to effect the purpose and
intention of this Agreement and carry out its provisions, whether before or
after its termination.
2.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(Signature page follows)
-4-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By: /s/ XXXX XXXXXXXXXXX
---------------------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: General Secretary
PHILIPS BUSINESS ELECTRONICS INTERNATIONAL B.V.
By: /s/ X.X. XXXXXXXX
---------------------------------------------------------
Name: X.X. Xxxxxxxx
Title: Member Management Board
By: /s/ A.P.M. VAN DER POEL
---------------------------------------------------------
Name: A.P.M. van der Poel
Title: Member Management Board
FEI COMPANY
By: /s/ XXXX X. XXXXXXXXXX
---------------------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
-5-
